Imagine the scene. You are in a café. You have bought a drink. Your friend suggests you should not drink it. Not because there is anything wrong with it, but because he is a fan of the drink. Your friend, for whatever reason, would rather you left the drink untouched.
Your reaction? Depending on how charitable you are, a half-hearted attempt to humour said beverage lover might ensue, but at some point most people would succumb to a thirst quenching drink notwithstanding any such objections.
So far, so fungible. What about something that is non-generic and not necessarily designed for consumption, say an antique motor car or a set of bagpipes? Could you object to me removing a valve from the former or setting fire to the latter, or indeed vice versa?
All of this is rather curious, but it serves as a lead-in to a big question. Are there some things, and by things I mean physical objects, that are so important the owners should not be allowed to tinker with or destroy them?
Now to bring this blog to its focal point, with two stories that relate to my personal interests. I like football. I like property law. You may like neither, but please do read on.
The fitba story of 2012 was Rangers. The year has now been captured for posterity in the name of the Rangers OldCo, RFC 2012 PLC, a company incorporated in Scotland on 27 May 1899 under registered number SC4276 and known as The Rangers Football Club PLC until 31 July 2012. Having entered administration in February 2012 it is now doomed to liquidation. In the generally accepted narrative, the last majority shareholder of this esteemed Scottish company acquired his shares when the former majority shareholder was forced into a sale by the major creditor of the company, that creditor (Lloyds TSB) being (in part) the successor to a trustee savings bank. The incoming owner was thus put in a position to asset-strip that company notwithstanding what others thought, if he so desired. Of course, compliance with the laws of the land and the payment of PAYE might have helped with the smooth running of the company, but the point stands.
Now compare the old Scottish club Third Lanark. It is gone. Kaput. The fit and proper test concocted by the modern regulatory body did not stop a very modern Third Lanark happening again. And what is to stop it happening again? Fan movements like the Well Society and 10000hours, aiming to secure Motherwell and St Mirren for the supporters and the local community, treat the symptom rather than provide the cure. Scotland does not have a fan-focussed model, such as is found in the German Bundesliga. Owners, and the directors they empower in the case of companies, have a heck of a lot of autonomy: a question-mark surrounding the toothless or dodged director disqualification regime insofar as Rangers were concerned might be inserted here. There is a further irony that a former trustee savings bank, no doubt latterly engaged in market speculation that I will never have the means to explore fully, was involved in the sorry tale of RFC 2012 PLC, but my story now moves on to matters of physical property rather than the incorporeal property of investments and company shares.
Land in Scotland continues to be freely traded. The dominant criterion for ownership of an estate, modest or otherwise, is whether or not you can afford it. Residency, sentimentality, community awareness, sustainability, whatever: all of them matter not. Subject to a few very specific and esoteric exceptions, such as the crofting counties of the Highlands and Islands where a compulsory right of acquisition exists, it is all about whether a deal can be struck between a willing buyer and a willing seller. Such an incoming buyer can then do what she wants with it, subject of course to the laws of the land that prevent, say, environmental contamination or erecting buildings without proper consent. If there is no incoming buyer, the residual landowner can stagnate or develop the land with much the same autonomy. It might also be noted that those specific and esoteric exceptions only apply where there is a contemporary sitting community or tenant. Land that is lost now, that was once so dearly held, generally stays lost, or at least stays subject to market vagaries. The returning war veterans known as the Seven Men of Knoydart could have told you a thing or two about that.
Does that bother you? Perhaps you think any owner has earned the right to be there, by having the money to attain that rank as landowner. Whether that person is nouveau-riche or of landowning stock, we live in a market-based society. Everyone else needs to deal with that. It is not as if people are starving and landless in Scotland, is it?
If it does bother you, what are you going to do about it?
As another year of our Lord is about to draw to a close, a slightly biblical muse. We came into this life with nothing. We can leave with nothing. That may be so, but we can smooth over our mortal existence and look after the things that matter to us. Those things provide the means to live or a means of escapism from those lives. Listen to Runrig’s Tìr a’ Mhùrain or read MacCaig’s A Man in Assynt and you realise the sentimental but very real attachment people can have to land, irrespective of that so readily understood exclusionary concept that is ownership. And yes, I did paraphrase Flower of Scotland above: cultural references through music or poetry abound.
Have we struck the right balance? The need to allow investment in and improvement of that which we hold dear perches at one side of the scales, offset by the need to preserve those assets for current and future generations. Another consideration is that property rights that are fickle or fragile will stymie commercial activity, but that returns to the central question of whether land is simply a tradeable asset. The inlay card to Karine Polwart’s Traces notes, “Our homes are not mere pieces of real estate. They are alive. And the traces of our lives are etched into them.” Does Scots law recognise that? Bluntly, no. The registration of land system that has existed since 1617, as fortified in 1693, ensconces owners in a position of power and allows many previous traces to be wiped out.
Whether your concern is a Scottish strath or a fitba club, there is much to reflect on at the turn of the year. The Land Reform Review Group might be interested to hear from you regarding matters land, and, albeit on a rather drawn out timescale and subject to parliamentary approval at the end of it all, all points raised will be listened to. As far as matters fitba are concerned, I am not entirely sure who is listening. And therein lies the rub. It is almost reminiscent of a child shouting over a high wall seeking the recovery of an errant football. Whoever is listening, can we have our ball back, please?