Last week I made a submission to the Local Government and Regeneration Committee of the Scottish Parliament, responding to its Call for Evidence at Stage 1 of the Community Empowerment (Scotland) Bill. That submission and 153 others are available online and all of them are of interest in their own way.
What is the Bill going to do? If enacted, the nine Parts of the Bill will make changes to things like:
community planning (see Part 2, in part tied to the new National Outcomes catered for Part 1);
common good assets, with a view to increased accountability of local authorities administering such resources (see Part 6); and
allotments used for non-profit cultivation of vegetables, fruit, herbs or flowers (see Part 7).
In general, the Bill follows the direction of travel proposed by the LRRG (a point briefly considered in an online piece I contributed to the Journal of the Law Society of Scotland, published today). This land reform trajectory is evident in the context of the expansion of the “community right to buy” (see Part 2 of the Land Reform (Scotland) Act 2003). The amendment will allow all land in Scotland – not just rural land – to be the subject of a pre-emption in favour of the community. Further, communities are to gain a right to acquire certain underused or neglected assets, irrespective of whether the owner actually wishes to sell. Most of my comments on the Bill (copied below) related to this proposal and its human rights law implications.
What next for the Bill? I understand the Committee is scheduled to start taking oral evidence at a meeting on 24 September 2014. This, of course, assumes Scotland will have recovered from any independence referendum hangovers. Bad jokes about hangovers aside, the rather obvious legal consequence of a positive result in that referendum would be to set the scene for Holyrood legislation freed from certain reserved powers (under the Scotland Act 1998), but any future legislation would still need to be mindful of human rights law.
Wait, don’t tell me you weren’t expecting at least one reference to the #indyref that we are only one week away from? Readers would have been distraught to find a post without such a reference, I am sure.
Extract Response to the Local Government and Regeneration Committee
This response will focus on: human rights; the use of the term “abandoned”; the need for a company limited by guarantee in the proposed Part 3A of the Land Reform (Scotland) Act 2003; and the Part 3A register
The right to property is recognised in the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), that right being expressed in Article 1, Protocol 1 (“A1P1”). A1P1 does not mean that private ownership is sacrosanct in all circumstances. A landowner can be divested of ownership when it is in the public interest for that to happen. The Committee may be interested to note that in South Africa, there is a specific constitutional declaration in section 25 that “the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources” (although the recognised need for reform in post-apartheid South Africa is not a direct comparator to Scotland).
The yin that is the apparently retarding force of A1P1 is balanced against the yang of Article 11 of the UN International Covenant on Economic, Social and Cultural Rights, which guarantees certain rights such as sanitation, food and housing. Scottish legislation must not be in breach of the ECHR, in terms of the Scotland Act 1998, but the Committee should be aware that human rights do not began and end at Strasbourg (where the European Court of Human Rights sits).
That said, the ECHR is crucial because of the role it plays in relation to devolved legislation (in the Scotland Act 1998 (as amended)). The Committee should therefore note that a compulsory transfer of property from one landowner to a new private landowner is acceptable in ECHR jurisprudence, as seen in James v UK (1986) 8 EHRR 123 and more recently in Pairc Crofters Ltd v Scottish Ministers  CSIH 96; 2013 S.L.T. 308.
It can also be noted that the operation of positive prescription (under the Prescription and Limitation (Scotland) Act 1973) can serve to replace a remiss owner of land with another owner, where the new owner has possessed that land for a certain length of time and registered a deed at the Land Register of Scotland. That process is due to be reformed very soon, by the Land Registration etc. (Scotland) Act 2012, but for present purposes it shows that Scots law is perfectly comfortable with the idea of one person’s ownership being usurped by another.
As such, it would seem the current proposals to introduce a new Part 3A to the Land Reform (Scotland) Act 2003 and to widen the scope of the right already conferred by Part 2 are well within the realms of ECHR compliance.
Clause 48 of the Community Empowerment Bill deals with “abandoned and neglected land” by giving communities a right to acquire land that is “wholly or mainly abandoned or neglected” (see the proposed s.97C(1) of the Land Reform (Scotland) Act 2003. The word “abandoned” is suboptimal, because it has a very specific meaning in Scots private law. Property lawyers would use that term in a situation where an owner has actively sought to walk away from an item of property. This is most readily imagined with corporeal moveable things (i.e. tangible objects that are not attached to land): consider Carey Miller with Irvine, Corporeal Moveables in Scots Law (2nd edition, 2005) at paragraphs 2.07-2.08. Whilst land cannot be cast away in quite the same manner, an owner may seek to disclaim land. This was most recently witnessed in the case SEPA v Joint Liquidators of Scottish Coal (2014 SLT 259).
As such, a synonym for abandoned seems preferable, but it is tricky to pick one. “Unused” and “underused” are ripe to cause arguments and there may be issues where an owner has made a conscious decision to not manage land (i.e. allow it to go wild, perhaps for conservation purposes). “Derelict” might be appropriate, but in common usage that normally relates to buildings. “Deserted” might imply a complete surrender of any relationship to the land. Unfortunately, I do not have an ideal substitute for “abandoned”, but the Committee should consider carefully whether “abandoned” is appropriate. One drastic solution might be to remove “abandoned” entirely, leaving the legislation to relate to “wholly or mainly neglected land”.
Company limited by guarantee
There is no compelling reason to mirror the requirement for communities to incorporate as a company limited by guarantee (but see below relating to the Part 3A Register). Whilst it might be argued consistency with the rest of the Land Reform (Scotland) Act 2003 is useful, this comes at the cost of flexibility for a community. An alternative approach is to focus on an organisation’s rules/constitution, as is the case with some common property options in the comparator jurisdiction of South Africa (See further Combe, “Parts 2 and 3 of the Land Reform (Scotland) Act 2003: A Definitive Answer to the Scottish Land Question?”, (2006) Juridical Review, pp.195-227).
The Part 3A Register
Although publicity is undeniably important when dealing with land, a query might be raised about the need for a new register. Assuming the requirement that a community be embodied as a company limited by guarantee is retained, publicity about that community comes via Companies House. The Land Register will provide publicity about the land. Notifications from the Scottish Ministers can (presumably) be publicised without a new register. Is a new register justified?
That said, a central reference point for Part 3A could be useful for a variety of people, so this potential criticism should not be overstated.