The Moral and Legal Drivers for Future Land Reform in Scotland – Guest Post by Robert Sutherland

This is a guest blog post by the advocate Robert Sutherland of Terra Firma Chambers, being a worked up version of his talk The Moral and Legal Drivers for Future Land Reform in Scotland [1] delivered at the recent land reform conference held at the University of Aberdeen.

Introduction

In line with the title for the Conference, the intention behind this talk is to offer some thoughts on legal, historical and policy perspectives which have influenced the land reform agenda in Scotland. The topic of land reform is not unique to Scotland.  Throughout the world (and throughout recorded history) there have been, and continue to be, many examples of changes to legal systems regulating land ownership in order to bring about social and economic reform, in order to remedy problems attributed to existing patterns of landownership and land use.  A non-exhaustive list includes: Ireland, Finland, Sweden, the Soviet Union, Estonia, Albania, Egypt, Zimbabwe, India, Japan, South Korea, China, Brazil, Mexico, and Peru.  Some of these changes have been driven by political philosophy, others by a desire to achieve some practical benefit.  In some cases, the change has been significant and beneficial, and less so in other cases.  A frequent rationale for change has been in order to achieve an outcome that could be described as social justice.

Practical, moral and legal imperatives for reform

Land reform is typically an agricultural issue, and the usual driver for change is usually practical – too many people living in poverty in rural areas, not producing enough food to feed themselves or the country they live in.  Often there is an inequality in land ownership, which may be concentrated in private hands or in the state.  There can also be an inequality over how the land is controlled, so that the relationship between absolute owner and actual user requires to be rebalanced.  Sometimes the issue is about a misuse of a positon of power.  Ireland in the nineteenth century is an example of where a major transfer of landownership was successfully effected in order to reduce the concentration of ownership underlying the poverty and famine rife in the countryside.  The former Soviet Union is an example of where the abolition of private property and the collectivisation of farms was intended to address one set of problems, only to create greater ones which then required further changes to put right.  The fall of the Soviet Union has seen yet more change in the former Soviet Republics, with land being transferred into private ownership.

As well as these practical considerations, there have been moral and philosophical influences which have helped support or encourage the arguments for change.  In western Europe and in other parts of the world where the Catholic Church has significant influence, Saint Thomas Aquinas has been to support an argument that land and property should be treated as common property to be put to beneficial use.  In Summa Theologica (1265-1274) he said:

“It is natural for man to possess external things. Man has the power to procure and possess external things, but in doing so these should not be as his own but as common, and that they should be communicated to others in their need.”[2]

In his Second Treatise of Government (1690) John Locke wrote[3]:

“Section 26.

God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience …. yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man.

Section 51.

And thus, I think, it is very easy to conceive without any difficulty, how labour could at first begin a title of property in the common things of nature, and how the spending it upon our uses bounded it.  so that there could be no reason of quarrelling about title, nor any doubt about the largeness of possession it gave.  Right and conveniency went together; for as a man had a right to all he could employ his labour upon, so he had no temptation to labour for more than he could make use of.  This left no room for controversy about title, nor for encroachment on the right of others; what portion a man carved to himself, was easily seen; and it was useless, as well as dishonest, to carve to himself too much or take more than he needed.”

Locke went on to argue that individuals form societies and communities, and by doing so voluntarily put themselves in a position where they are ruled by the decision of the majority.  However, societies/leaderships/governments cannot arbitrarily take the possessions of any individual without their consent, and if they fail to protect the property rights of individuals they are liable to be overthrown.  According to Locke, government has no other end but the preservation of property (Section 94).

Historic drivers for land reform in Scotland

In a Twitter discussion with Malcolm Combe and others earlier this year about land reform legislation in Scotland I suggested that the Leases Act 1449[4] was the first Scottish land reform Act.  So far, I do not believe that anyone has come up with anything earlier than this.  But the Leases Act 1449 was not a solution to rural poverty:

“In Scotland the houses of the country people are small, as it were cottages, and the reason is this: they have no permanent holdings, but hired only, or in lease for four or five years, at the pleasure of the lord of the soil; therefore they do not dare to build good houses, though stone abound; neither do they plant trees or hedges for their orchards, nor do they dung the land: and this is no small loss and damage to the whole realm.  if the landlords would let their land in perpetuity, they might have double and treble of the profit that comes to them – and for this reason: the country folk would then cultivate their land beyond all comparison better, would grow richer, and would build fair dwellings that should be an ornament to the country.”[5]

Because of the poor quality of the land, a traditional agricultural practice that developed was to allow cattle to roam freely to forage for food after the crops had been harvested.  This practice was born of necessity, but was a further disincentive to tenants to improve their lands since the benefit was just as likely to be consumed by their neighbour’s cattle as much as their own.  This problem led to the passing of the Winter Herding Act 1686, which provided that heritors were required to herd their cattle in winter as well as in summer.  The penalty was half a merk for each beast found in a neighbour’s ground.  Apparently the Act was not a success,  In 1762 Adam Smith noted that country people were so wedded to the notion that property in land continues no longer than the crop is on the ground, that:

“as soon as the crop is off the ground the cattle are no longer kept up or looked after but are turned out on what they call the long tether; that is they are let to roam about as they incline.  Tho this be contrary to Act of Parliament …. there is no possibility of getting them to observe it, even by the penalty which is appointed to be exacted against it.”[6]

Recent developments

There has been much written elsewhere about the crofting and agricultural holdings legislation which originated in the latter decades of the nineteenth century and continued to evolve in the twentieth century.  My talk however is focussed on the drivers for land reform in Scotland in the twenty first century, and time constraints mean that I am going to skip over these important developments, and jump from the somewhat distant past to more recent developments.

The first piece of land reform legislation in the twenty first century was the Land Reform (Scotland) Act 2003.  This had its origins in a Labour manifesto commitment in the 1997 election on improving access to land.[7]  The 2003 Land Reform Act is in three parts, covering Access Rights (Part 1), the Community Right to Buy Land (Part 2) and the Crofting Community Right to Buy Land (Part 3).

In order to help understand more completely the underlying drivers for more recent developments it is necessary in my view to look at the Scottish Government Policy context.  An important change was brought about by the minority SNP administration’s approach to government from May 2007 onwards.  The Scottish Government set out a single overarching purpose for its government of Scotland – which is “to focus government and public services on creating a more successful country, with opportunities for all of Scotland to flourish, through increasing economic sustainable growth”.  Supporting that single purpose were 5 Strategic Objectives, 7 High Level Targets, 15 National Outcomes and 45 National Indicators.  This structure has given a focus and rationale for government which was new to Scotland, and set a benchmark which has been used to critique the actions of the Scottish Government, local authorities, and other users of public funds.  These policy goals set an agenda for government, acting as the driver for further change.

Of particular note are the objectives and outcomes.  Of the five Strategic Objectives, three in particular are relevant:

• Wealthier and Fairer

Enable businesses and people to increase their wealth and more people to share fairly in that wealth.

• Safer and Stronger

Help local communities to flourish, becoming stronger, safer place to live, offering improved opportunities and a better quality of life.

• Greener

Improve Scotland’s natural and built environment and the sustainable use and enjoyment of it.

The Community Empowerment (Scotland) Act 2015 has given the National Outcomes a legislative base, not just a policy one.  Of the National Outcomes published in March 2016, I would highlight the following as being particularly relevant to the land reform agenda:

• We realise our full economic potential with more and better employment opportunities for our people.
• We have tackled the significant inequalities in Scottish society.
• We have strong, resilient and supportive communities where people take responsibility for their own actions and how they affect others.
• We value and enjoy our built and natural environment and protect it and enhance it for future generations.
• We take pride in a strong, fair and inclusive national identity.

There are now 55 National Indicators set out by the Scottish Government, and there is also a General Economic Strategy:

• Supportive Business Environment;
• Learning, Skills and Well-being;
• Infrastructure Development and Place;
• Effective Government;
• Equity;
• Transition to a Low Carbon Economy

Major underlying themes that run through all of this policy are the effective and efficient use of land and property, economic and social community development, fairness and equity.  Concepts not unfamiliar to Aquinas and Locke.

Although not branded as ‘land reform’ legislation, there have been a number of other Acts of the Scottish Parliament since the Land Reform (Scotland) Act 2003 which have meet the criteria for typical land reform measures.  The Agricultural Holdings (Scotland) Act 2003 introduced the tenant’s right to buy (Part 2) and the right to diversify into other non-agricultural uses of land (Part 3).  The Crofting Reform (Scotland) Act 2010 introduced stronger measures on controlling the use of croft land with a view to ensuring that land was being actively used and was available for use by those who needed it (Part 3: Duties of Crofters and Owner-Occupier Crofters; Part 4: General and Miscellaneous[8]).  The Community Empowerment (Scotland) Act 2015 enshrined National Outcomes in legislation (Part 1) as already noted, and it also contained modifications to the Community Right to Buy legislation in the Land Reform (Scotland) Act 2003 (Part 4) and made provision for Asset Transfer Requests (Part 5).

The most recent piece of legislation has been the Land Reform (Scotland) Act 2016.  The key parts of the Act relevant to land reform issues are:

• Part 1: Land Rights and Responsibilities Statement
• Part 2: The Scottish Land Commission : Chapters 1 and 2
• Part 3: Information About Control of Land
• Part 4: Engaging Communities in Decisions Relating to Land
• Part 5: Right to Buy Land to Further Sustainable Development
• Part 9: Access Rights – makes changes to 2003 Act, mainly in relation to core paths

There was much debate about the potential impact of the 2016 Act as the Bill completed its passage through the Scottish Parliament.  Much of the detail to implement the 2016 Act has still to be developed.

The Future

The Scottish Government has stated that land reform in Scotland is a continuing process – and that land should be used to benefit the many, not the few.  Two non-legislative developments which set the tone for the future are The Land of Scotland and the Common Good, Land Reform Review Group Final Report, May 2014 and Getting The Best From Our Land: A Land Use Strategy For Scotland 2016 – 2021.  I am not going to be so rash as to try to predict the future, but in this year of the Rio Olympics I do wonder whether Brazil provides us with a principle upon which future development might be based which is consistent not only with current Scottish Government policy but which is also to be found in the works of Thomas Aquinas and John Locke.

Brazil is an enormous country, and very large parcels of land, often with unclear boundaries, are owned by multinational corporations.  It has an indigenous population which is poor and struggles to find agricultural land it can work.  Somewhat ironically, in a response to pressure from the United States in the early 1960s the then military dictatorship passed the Land Statute of 1964.  This Act set out the principle that land should be used effectively.  The principle of effective use of land was then enshrined in the 1988 Constitution of the Federal Republic of Brazil.  Article 184 provides that it is “within the power of the Union to expropriate on account of social interest, for purposes of agrarian reform, the rural property which is not performing its social function, against prior and fair compensation in agrarian debt bonds …”. Article 185 excludes (i) small and medium-size rural property, and (ii) productive property from expropriation, and provides that special treatment shall be guaranteed for productive property. Article 186 provides that the social function is met “when the rural property complies simultaneously with, according to the criteria and standards prescribed by law, the following requirements:

I – rational and adequate use;

II – adequate use of available natural resources and preservation of the environment;

III – compliance with the provisions that regulate labour relations;

IV – exploitation that favours the well-being of the owners and labourers.”

The beneficiaries of land redistribution are to be given title deeds which they will not be able to sell or otherwise transact with for 10 years (Article 189).   The acquisition or lease of rural property by a foreign individual or legal entity is also regulated, and in some cases requires to be authorised by the National Congress (Article 190).  Rural land upto 50 hectares may be acquired after five years of uninterrupted possession without objection by persons who do not own any other land (Article 191).

I am not intending to suggest that future Scottish legislation might or should copy Brazil.  The factual context for that legislation is quite different from Scotland.  What might be of interest to policy makers though is the principle that land should be used effectively.  A flavour of that principle can be seen in the Crofting Reform (Scotland) Act 2010, and in the Community Empowerment (Scotland) Act 2015 in relation to the community right to buy abandoned or neglected land.  What will be the next step?

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[1] This paper is based on notes for a talk delivered at the Aberdeen University Conference “Land reform in Scotland: legal, historical and policy perspectives” on 26 August 2016.

[2] II-II, Question 66, Of Theft and Robbery (1265-1274).

[3] Chapter V, Of Property.

[4] “Item it is ordanit for the sauftie and fauour of the pure pepil that labouris the grunde that thai and al vthiris that has takyn or sal tak landis in tym to cum fra lordis and has termes and yeris thereof that suppose the lordis sel or analy thai landis that the takaris sall remayn with thare takis on to the ische of thare termes quhais handis at euir thai landis cum to for sic lik male as thai tuk thaim of befoir . . .”

[5] John Major (John Mair), History of Greater Briton (1521).

[6]  Lectures on Jurisprudence, (i), 53.

[7] A useful overview of the law on access rights over land prior to the 2003 Act, and the scope of access rights set out in the 2003 Act, is provided by Tom Guthrie in Chapter 5 of The Promised Land : Property Law Reform, (ed. Robert Rennie) (2008).

[8] The amended Crofters (Scotland) Act 1993 now has various provisions to ensure that crofting land is used in a way that meets policy goals: s5AA/s19C(2)(a) – residence duty; s5B/s19C(2)(b), (3), (4) – duty not to misuse or neglect the croft; s5C/s19C(2)(c) and (d) – duty to cultivate and maintain; ss26A – 26K – Crofting Commission investigation and enforcement powers; s49A – Grazing Committee duty to report to Crofting Commission; s25(1A) and (1B) – issues relevant to decisions on public interest in making decrofting directions.

The panel featuring Robert Sutherland, second from the right.