RACCE Committee Stage 1 Report on the Land Reform Bill

First, an apology to any land reform fans out there. I have been a bit remiss in my blogging and this is my first chance to offer a select few words on the Stage 1 Report of the Rural Affairs, Climate Change and Environment Committee as a whole. I did manage to offer more than a few words (in Gaelic) on one specific Committee proposal to do with the promised Scottish Land Commission, but sitting down to give a proper overview of the report has been beyond me owing to matters that have been long in the diary such as: invigilation and marking of student exams; attendance at a recent Scottish Human Rights Commission event (Storified by me here) in Edinburgh; participation in a Glasgow Forum for Scots Law discussion; and indeed the odd social engagement.

Enough about me, I can tell that you all want to hear about land reform. Here are some quick thoughts on the Committee’s output. I offer these in a particular order, and that order is a selfish one. The first two thoughts relate specifically to things I recommended in evidence and have been taken forward by the Committee. The remainder are things I am interested in and I feel I can offer some useful thoughts on before Holyrood debates matters on Wednesday afternoon. There are plenty other matters in the Stage 1 Report that are very interesting indeed and my glossing over of them should not be read into too much.

It might also be useful to note at the outset that the accompanying press release noted that “The Scottish Government’s Land Reform Bill requires strengthening in key areas to deliver on its radical ambitions“. That gives you an idea of the Committee’s overall thinking.

The Scottish Land Commission

As noted previously on this blog, in Gaelic and in English, I recommended that there should be a specific commitment to the Gaelic language in the criteria for appointment of Scottish Land Commissioners. This has been adopted by the Committee (at paragraph 159) and I hope Parliament acts upon this. Although I did not mention this in my initial blog (or indeed my submission to the Committee) a thought that occurred to me latterly is that involving someone with knowledge of Gaelic might just introduce perspectives to land policy that have thus far been excluded. I am not saying Gaels have been excluded from important policy shaping positions in modern Scotland, but actively including them might make for a new dynamic. If reform is indeed about changing things, then that new dynamic would seem to be a logical introduction.

That leads on to the Committee’s nearby observation about land management experience, found in paragraphs 157-158. They observe there is “merit in ensuring the Commissioners collectively have some general land management experience and/or expertise“. This is fine, subject to the rather glaring caveat that the people who have land management experience and/or expertise at the moment tend to be the people who have access to land at the moment. If those people then get the chance to shape policy, cynics might query whether this is reform at all.

Of course, this need not be the case of people who know how to manage land: someone with a wealth of experience of managing land in Ireland, New Zealand, Canada or Norway would not necessarily fall into a handy caricature of Scottish old money. Overall, the recommendation does seem perfectly sensible – absent proper guidance, pejorative phrases about monkeys taking over the zoo spring to mind. Then again, if you want a commission to look into reforming your zoo, it might not be sensible to overload the Zoo Commission with traditionalist zookeepers.

Access Rights

The Committee “recommends that the Scottish Government considers the merits of expanding the role of Local Access Forums to allow them to deal with minor access rights disputes.” (Paragraph 399.) For me, this chimes satisfyingly with an earlier blog. Again, I hope Parliament now takes this forward, but I will quickly clarify that I do not imagine Local Access Forums in any way usurping the already established role of Sheriff Courts. Rather, I imagine the local Local Access Forum can be a first, cheap and quick port of call, with an appeal to the Sheriff possible to deal with any thorny issues.

Sustainable Development

Whilst we are on the subject of thorny issues, the Committee described (at paragraph 81) the issue of whether a definition of sustainable development should appear in the Bill as “thorny”. Eventually, this was noted (at paragraph 271):

The Committee is satisfied that there is a clearly understood definition of the term sustainable development, both as set out in other legislation, and in the Policy Memorandum to the Bill.

I have some sympathy with this. I am increasingly of the view that it is now too late to try to define “sustainable development” in a Scottish land reform statute, especially as you might need to reverse engineer that which has gone before (particularly the Land Reform (Scotland) Act 2003). This is one of the few areas where I adopted a different position to Dr. Jill Robbie and her colleagues at Glasgow. The Committee drew succour from the Pairc decision in the Court of Session in coming to its conclusion. I agree with it.

Drafting and Delegated Powers

Where I do agree wholeheartedly with Jill is that there are issues in the comprehensibility and presentation of the Bill. Coupled with the fact that much legislation seems to be saved for a later date (i.e. to be covered by later regulations), that can make it difficult to comment on and understand what the legal landscape after any new Land Reform (Scotland) Act will look like. The Committee acknowledged these issues and recommended the Bill be amended to ensure any particularly important secondary legislation that follows is properly scrutinised by Parliament (paragraph 77).

All that said, I have a great deal of sympathy with the people who drafted this legislation under a great deal of time pressure, especially Part 10 on agricultural holdings. I will continue to have sympathy with them when they try to get any amendments to the Bill processed before Holyrood closes at the end of March. In fact, that time pressure makes me wonder whether there is time for the limited-competence Scottish Parliament to make any radical change to this Bill that can be confidently within its limited competence: that being a point I alluded to in this blog, written in the build-up to the Committee Report. (If there is indeed not enough time, it may be the case some of the points that cannot be addressed by legislation in this Holyrood term will manifest in future manifestos of the various Scottish political parties.)

Another point I alluded to in that blog is that the recommendations of the Committee will be crucial for this Bill. One area where the Committee has strongly recommended something is in relation to transparency, which is the final thing I will consider.

Transparency of land ownership

Of all the issues that I think will need to be considered very carefully by Holyrood (well, this and ALL of agricultural holdings, which I am not looking at in this blog), transparency is crucial. This is what was said of the current Part 3, with its right to request information (at paragraphs 219-220):

…the Committee is of the view that Part 3 of the Bill is not likely to achieve all of its objectives as it stands and requires amendment. The Committee does not recommend deleting sections 35 and 36 in their entirety, which was suggested by some. Rather, as outlined above, the Committee recommends that those sections be strengthened, and become part of a suite of
measures.

Given that the provisions are not likely to go far enough in delivering the desired increased transparency about those who own, control and benefit from the land, and following all of the evidence heard and considered, the Committee recommends that the Scottish Government gives consideration to the following suggestions for amending the Bill, requiring—

– those who wish to buy land and register title in Scotland to be
registered EU entities, and requiring current non-EU registered
owners to register within 5 years of the commencement of the provision;
– those who wish to buy land and register title in Scotland to provide a named contact point in Scotland;
– those who wish to buy land and register title in Scotland to clearly identify those who will control the land and those who may benefit from that ownership and control;
– any other appropriate information that could reasonably be needed as part of the registration process and which would improve transparency and accountability.

That the Committee has come out so strongly on this is striking. It follows on from the Land Reform Review Group Final Report. Will the Parliament now follow the LRRG Final Report, the Committee Stage 1 Report, and the weight of evidence that was submitted in response to the recent consultation on land reform?

What now?

Tune in to Parliament TV on Wednesday at approximately 15:00. As it happens, I might miss it, as the undergraduate Law of Property exam is 12:00-14:00 that day and I will probably still be caught up in the post admin fun at 15:00.

You may be reassured to hear that I am not assessing these second year undergraduates on the terms of the Land Reform Bill. Believe it or not, I am not that sadistic. (And if any of my second years are reading this, good luck, but should you not be studying for something that is likely to be in the exam?)

Finally, you can find further analysis of the RACCE Committee report over at Calum MacLeod’s blog and at the Scottish Land & Estates website.

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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5 Responses to RACCE Committee Stage 1 Report on the Land Reform Bill

  1. Neil King says:

    As I type this, I don’t yet know what’s been said at the Stage 1 Debate but what is your take as a lawyer, Malcolm, on the RACCE Committee’s four suggestions regards transparency? I mean particularly, how might they work in practice, indeed are they practicable? And as regards restricting non-UK corporate ownership to the EU, do you know of any link which handily summarises the company law of each member state so that we can check to see whether each does indeed deliver the required degree of transparency (or – excuse my ignorance – is there an EU Company Law Directive covering this?)

  2. Neil King says:

    Nothing in the harmonisation programme that I can see about transparency (in the sense we’re discussing here) and I’ve yet to see any evidence that the mere fact of a company being incorporated in the EU automatically means that there will be public access to information on its beneficial ownership and directors as appears to be assumed in certain quarters.

    The 4th Anti Money Laundering Directive takes a step forward in this direction by requiring central registration of beneficial ownership (not directors, if I understand correctly) BUT this register will only be accessible to those who can demonstrate a “legitimate interest”. An EU press release on what that might mean in practice said this: “To access a register, a person or organisation (e.g. investigative journalists or NGOs) will in any event have to demonstrate a “legitimate interest” in suspected money laundering, terrorist financing and in “predicate” offences that may help to finance them, such as corruption, tax crimes and fraud.” Note also that the 4AMLD doesn’t require registration of the address of the beneficial owners, only country of residence, so none of this looks as if it’s going to be too much help to a Community Development Company who simply wants know who the owner of their surrounding land is and how you get hold of them. In short, I can’t understand this fixation on the EU when a more focussed approach would seem to be “You can be incorporated wherever you like but if you want to own land in Scotland, you have to do the following … [perhaps the last three of the RACCE Committee’s suggestions]”.

    I may be wrong about the relevant EU law and/or be unaware of other important aspects but the foregoing seem to be the sorts of questions that should be being asked /analysed but aren’t.

  3. Pingback: Land Reform (Scotland) Bill – Scottish Government response to RACCE Committee | basedrones

  4. Pingback: Land Reform Bill – Stage 2 | basedrones

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