Land Reform in a Net Zero Nation; or the road to next Land Reform (Scotland) Bill

On 4 July 2022, the Scottish Government launched a[nother] consultation about land reform in Scotland. A related news release begins thus:

Scotland has a proud history of land reform going back to the early days of devolution. We are committed to bringing forward a new Land Reform Bill in this parliamentary session. Over the summer, we are undertaking a wide-ranging consultation on our proposals for the measures it should contain.

It might be noted in passing that Scotland dabbled in land reform before the early days of devolution, but let’s let that slide.

The consultation is open until 25 September 2022, accessible via an online consultation platform or as a document on the Scottish Government’s website.

What follows here are some eclectic points that occurred to me as I read through the document, generally following the order adopted in the original (i.e. any points I make are not necessarily in order of importance). I skip over some of the proposals a tad – again, this should not be taken as a sign of importance or otherwise, it’s just that I don’t have much to say on such matters at the moment. I don’t intend for this to be the last word on the consultation. It certainly isn’t the first word either. In terms of other sources:

Andy Wightman’s blog hosts some of his initial thoughts in this post and this second post;
Dr Calum Macleod of Community Land Scotland has contributed a column (in a personal capacity) to the Stornoway Gazette;
Magnus Davidson wrote for the John O’ Groat Journal and Caithness Courier.
Scottish Land and Estates published this news release on the day the consultation opened;
The Scots law firm Brodies offers some insights on its website;
The Scots law firm Shepherd and Wedderburn provides knowledge on its website; and
Calum MacLeod of Harper Macleod (a different Calum to the earlier Calum) touched on the consultation in his column for The Scotsman.

No doubt there are other offerings that I’ve missed.

I’ve not blogged in a while (sorry), and I fear this might be one for the land reform purists (sorry not sorry… but seriously, this is comfortably over 5,000 words). As such maybe this is not the best way to burst back onto the blogging scene. Anyway, here goes.

The consultation

After the usual Ministerial Foreword, the consultation begins with a quick scene-set about post-devolution land reform (Part 1) and the developments since the previous Land Reform Act (narrating the important work of the Scottish Land Commission, but also highlighting the combined commitments of the political parties with the MSP representation at Holyrood to make any new law) (Part 2).

The 2021 concordat between the [SNP] Scottish Government and the Scottish Green Party is known as the Bute House Agreement and it is specifically referred to in the consultation. On page 4 it states “The agreement sets out the following commitment”, namely:

The new Land Reform Bill will aim to ensure that the public interest is considered on transfers of particularly large-scale land holdings, and we will aim to introduce a pre-emption in favour of community buy-out where the public interest test applies, and where it is appropriate to do so. Our proposals will complement existing community right to buy mechanisms.

I might be missing something or being dim, but I cannot find that wording in the Bute House Agreement. Where I can find it is another source from earlier this year. On 31 March 2022, Màiri McAllan issued a Ministerial Statement on Interim Principles for Responsible Investment in Natural Capital, under the “Community Empowerment” heading. Unless I’m working from the wrong version, what the Bute House Agreement said about land reform was:

There should be a more diverse pattern of land ownership and tenure and a significantly higher proportion of land should be owned in Scotland by the communities that live and work there, as well as land held for the public good by the public sector… Recognising that devolved competence constrains what we can do, we aim to deliver legal mechanisms to tackle scale and concentration of land ownership in rural and urban Scotland. This will include a public interest test to apply to transfers of particularly large scale land holdings which will include a right of pre-emption in favour of community buy out where the public interest test applies…

I don’t want to get too bogged down in the front matter of the consultation. I did want to flag this though. If I am indeed missing something, please do let me know. Anyway, the nod towards the need for new measures to complement existing community right to buy mechanisms is something that I will come back to later.

The rest of Part 2 of the consultation highlights what land might mean in relation to net zero and just transition, including an assurance that “Actions taken in pursuit of tackling climate change and increasing biodiversity must not have the effect of displacing people from the land.” Otherwise, as things stand (and despite the title of the consultation), net zero does not directly feed into any blackletter land law reform proposals, but (as will be explained) there may be financial consequences for land owners in receipt of public funding who don’t comply with certain land governance standards and as such there may be knock-on effects from that. There is also an explanation that this exercise relates to rural land (with urban land to follow in the forthcoming Community Wealth Building Bill), and an acknowledgement of the human rights and devolved settlement implications for this bill; I will touch on those in this post if and when such implications arise. Finally, after setting out what the bill is likely to do – which I will not bother to do here and instead I will build the tension then only engage with relevant provisions when I get to the appropriate part of this post – there is an explanation of something the next Land Reform Bill will not do: the reform of compulsory purchase orders will also be a feature of that forthcoming Community Wealth Building Bill.

Next, there is an “Overview” of the consultation (Part 3). It begins by explaining that there are specific proposals that are to be consulted on, and then there are “other ideas and proposals” on which views are invited “which may or may not be included in the Bill“. With that level of commitment, I am not sure that all consultees will be moved to expend great energy on that latter category of general matters. In that vein, the focus of this blog post will be on the former (specific) proposals.

The first of the specific proposals have scale and concentration of land ownership in Scotland in mind. The plan is for these proposals to only apply to large-scale landholdings, meaning that – by definition – they would not apply to small-scale landholdings, and there is also a planned carve-out relating to “family farms”. It can be seen that one definition in particular will play a gatekeeper role, so a full Part of the consultation (Part 4) considers the criteria for large-scale landholdings. Then, some proposals this definition interacts with are introduced, namely: “Strengthening the Land Rights and Responsibilities Statement” (Part 5); “Compulsory Land Management Plans” (Part 6); and “Measures to regulate the market in large-scale landholdings” (Part 7). There is a possibility that this could also be relevant to “New conditions on those in receipt of public funding for land based activity” (Part 8) if this is narrowed to relate only to large-scale landholdings, and a further possibility that this could interact with the “Transparency…” provisions of Part 11 about who should be able to acquire such large-scale landholdings and a possible requirement that those seeking to acquire large-scale landholdings in Scotland be registered in an EU member state or in the UK for tax purposes. The centrality of the definition is accordingly plain to see.

Away from what has already been mentioned, the idea of a new land use tenancy for tenant farmers is introduced (Part 9), as is future consultation on small landholdings. Part 12 then asks general questions about “land related reforms”, namely “fiscal and taxation” and “community benefits and natural capital” matters. Of these, only the new land use tenancy will be discussed in this blog post. I stress, this is not because I am not interested in these topics (see e.g. this project where I worked with Annie Tindley and Micky Gibbard, and this post about the legislation review for small landholdings), it’s just a bit vague on small landholdings just now and this post is unwieldy enough already.

Large-scale landholdings

For reasons of space and/or personal laziness, I am not going to get into the merits of the debate about scale and concentration of landownership here. I’ll quietly point you to the work of the Scottish Land Commission on the topic, and signpost that the consultation itself acknowledges possible adverse impacts of scale/concentration.

Suffice it to say, large-scale landholdings in Scotland are being targeted, and in law-making terms that means a suitable definition is needed. The proposed definition has three arms to it. It begins with a fixed threshold of 3,000 hectares, then quickly suggests an exemption for family farms. More on that core criterion and the exemption below. There are then two alternative large-scale landholding qualifying criteria, namely: “Land that accounts for more than a fixed percentage of a data zone (or adjacent data zones) or local authority ward(s) designated as an Accessible Rural Area or Remote Rural Area, through our six-fold urban/rural classification scheme”; and finally “Land that accounts for more than a specified minimum proportion of a permanently inhabited island”.

I don’t have too much to say on the two alternatives, although I won’t resist the urge to make two sideswipes. On the data zone criterion, I don’t know about you but I tend to not to have an encyclopaedic knowledge of how this patchwork of 6,000+ areas fits across Scotland. The Accessible Rural Areas and Remote Rural Areas don’t trip off my tongue either. In theory I’m supposed to know a bit about stuff like this, or I like to pretend I do. If this is adopted, helping people to understand what it actually means would be important. (People may have a decent idea which local authority ward they are in from council elections, although knowledge of exact boundaries may be foggy.) On the inhabited island criterion, sure, this would prevent a Gigha-shaped island (Gigha has an area of less than 1,500 ha) from escaping the definition, but to be clear the definition only catches inhabited islands. Any already depopulated islands not comprising a 3,000ha holding remain depopulated and unregulated, and there may even be a perverse incentive to encourage those still living on such a sub-3000ha island to leave. [Disclaimer: I have absolutely no idea how many of such populated but fairly wee islands exist as at today’s date. Further island analysis, interspersed with lovely land reform analysis, can be found in this blog post by Professor John Lovett for the Scottish Land Commission.] Those sideswipes aside, I think it is better to have these additional routes to large-scale landholding status than note, albeit there is no indication of what the fixed percentage for a data zone/ward (or adjacent zones/wards) or minimum chunk of an island will be.

Returning to the main clincher, the exact figure of 3,000ha is not something I am going to offer any opinion on here. In fact, in its discussion paper on concentration of land ownership (at paragraph 7.3.1) the Scottish Land Commission also offered no fixed view, but noted, “It may be reasonable to expect that, for example, holdings over 10,000ha would always be in scope, while those under 1,000ha would always be exempt.”

Magnus Davidson angles for that lower figure of 1000ha in his recent piece, citing greater impact in that regard.

The figure has to be somewhere. The consultation plonks for 3,000ha. It does so with reference to some methodology. That methodology has been criticised by Andy Wightman in his blog post of 22 July (and a semi-related piece in The Sunday Post might also be of interest). Having dodged a discussion of the merits of focussing on scale and concentration I will also dodge a discussion of the methodology, save to note Andy makes some useful points. In that blog post he also raises the crucial issue of how individual parcels of land will be treated – that is to say, one parcel of land that is registered in a holding of slightly less than 3,000ha, then (perhaps just down the road) another parcel of land is owned by the same owner, albeit under a different (registered) title, which would normally be the case if the land was acquired at separate times (i.e. they were divided into separate holdings in the past). This really is important in terms of working out where the legislation bites.

Andy provides an example of someone owning some land in Aberdeenshire and more land in Lanarkshire not being covered by the proposals. That this would not be caught is just about justifiable if the focus is on local control, but what about his hypothetical situation of 100 people or entities each owning 10,000 8ha holdings. That would not, apparently, be caught. Okay, sure, such a specific arrangement maybe seems far-fetched, so here’s a simple, recent example of a real situation where an aggregation would be caught and disaggregated land would not. As reported by the BBC, the Langholm Initiative last year acquired approximately 5,200 acres (2,104ha) of moorland in Dumfries, and this year it secured a further 5,300 acres (2,145ha). The 4,000+ hectare site will only be caught as a large-scale landholding if it is agglomerated.

This needs to be bottomed out. If it is not, it is possible that some situations will (or will be engineered to) escape the definition. I will touch on this again below in the context of the “public interest test”, where it seems adjacent holdings can be measured as if they will be one holding as and when they come into the same ownership. Perhaps I am overstating this issue accordingly.

One other point falls to be quickly discussed: exemptions for family farms. It is more than understandable that some businesses wish to escape further regulation, and I am sympathetic to the particular context here. In fact, I have written about catching family farms in a crossfire on this blog in the context of the reform of the law of succession, when family farms (tenanted or owned outright) and succession law reform collided (in relation to the recurring issue of whether family members should have indefeasible rights to inherit land – in Scots law such indefeasible rights in the estate of a deceased party only relate to the deceased’s moveable property). Malcolm Rudd wrote a detailed article about this for the Juridical Review, as we distilled for a blog post hosted by the University of Aberdeen’s School of Law. The implications of a farm being caught by this particular reform are not quite the same here (management plan imposition does not equate to the shotgunned subdivision of a farm, necessitated to meet a deceased’s children’s respective claims), but the principle of some kind of an exemption could be sound. The definition of it needs to be appropriate though. This is worth watching.

That concludes my analysis of the “what?” in relation to large-scale landholdings. What does it mean though? As noted above, this particularly interacts with any strengthening of the Land Rights and Responsibilities Statement (LRRS), compulsory land management plans, and market regulation for large-scale landholdings. I’ll consider these in turn, giving a brief overview of the LRRS and the plans then a bit more detail on the market regulation side of things.

The Land Rights and Responsibilities Statement

At the beginning of Part 5 of the consultation, we are reminded that the Land Reform (Scotland) Act 2016 put Scottish Ministers under an obligation to produce a statement on land rights and responsibilities, and the LRRS was duly published in 2017. It has a vision, six principles, and no particular legal clout in domestic law. That last point might seem uncharitable and simplistic, but I’m going to be a provocative blackletter lawyer about this for the moment and let that hardnosed statement speak for itself. The LRRS is however supported by advisory notes, case study examples, and a series of good practice protocols developed by the Scottish Land Commission.

The consultation proposes that owners of large-scale landholdings would be placed under a legal duty to comply with the LRRS and its associated codes/protocols. Now that really would be a change that would alert the antennae of Scots private lawyers. Further, it would upgrade the Commission’s protocols to something that was decidedly not envisaged in the 2016 Act. The 2016 Act did introduce statutory codes of practice in relation to tenant farming matters so an analogy could be developed, and this is recognised by the consultation, but make no mistake that such beefed up codes/protocols (that being the slight of hand introduced in the consultation to reflect the upgraded status of the LRRS protocols) would be an innovation in this area.

A statutory process to rule on non-compliance, a procedure for the reporting of potential breaches (by selected bodies), and a Commissioner to investigate and report publicly on their findings are all discussed. Consequences of a breach are also discussed, as are enforcement powers (with financial penalties and “cross-compliance” penalties (i.e. being disbarred from accessing public funds) aired). The consultation is also careful to cover why this is being discussed, which is important as this reform would engage Article 1 of the First Protocol to the ECHR as a control of property. Such a control is permissible in human rights law terms (and in turn devolved law-making terms) when it is in the general interest, so reference is made to expanding the “demonstrable benefits” that have come about through the LRRS protocols and the work of the Good Practice Advisory Group. Next, benefits to Scotland on a number of levels are flagged, with it being noted that the change would (on a national level) contribute to the “Just Transition to net zero” mission and (on a local level) contribute to the Government’s approach to Community Wealth Building, and improve relationships between landowners and communities. Possible economic benefits are also aired.

This would undoubtedly be a change for large-scale landowners, that much is obvious. Can it be justified on any other grounds? Perhaps certain analogies might be drawn with community groups who have used existing land reform legislation already having to comply with ongoing sustainable development and corporate governance requirements, or the obligations crofters find themselves under in relation to much smaller holdings, but I appreciate such analogies can also be characterised as simplistic. The other point is this starts to make real the whole “land rights mean land responsibilities” shtick, which has been pushed at least since the 2016 Act. That marked something of a shift in the culture around land in Scotland, and the law seems to be following in the wake of that.

Compulsory Land Management Plans

The Scottish Government sets out in its consultation the view “that it is a reasonable expectation that any large-scale landholding should prepare and publish a management plan.” The consultation then notes that such a plan will: link to the LRRS (including by demonstrating how land will be used and managed so as to meet requirements for sustainable management, in turn contributing to net zero and nature restoration goals); set out plans for engagement with local communities in line with the Scottish Government’s Guidance on Engaging Communities in Decisions Relating to Land (which ties in with Part 4 of the 2016 Act); offer a chance to increase the transparency of an owner’s objectives and operations; and set out how these connect with local priorities, opportunities, and public policy. It is specifically proposed that plans should integrate with “relevant land use, economic and community development priorities and opportunities, as set out in community plans, regional land use strategies, and national policy”, meaning these plans can’t be a back of an envelope job.

Again, penalties for not playing ball are discussed, and once again cross-compliance penalties are mooted. That said, it might be noted that any consequences appear to be linked to a failure to provide a plan rather than an issue with the quality of (or ultimate implementation of) the plan itself; again there is some resonance with the tenant farming commissioner set-up here, such that financial penalties apply when there is no engagement rather than suboptimal engagement. The consultation also seeks views on how frequently such plans should be published, which I offer no view on here.

Regulating the market in large-scale land transfers: a new Public Interest Test, and a requirement to notify an intention to sell

Property lawyers can get excited about certain core elements of ownership. The right to exclude others from an asset is often characterised as a key, perhaps the key, constituent of the right of ownership, and I’ve written about the right to exclude and Scots law in the past. The right to dispose is another important aspect of ownership: that is to say, the right to transfer or otherwise deal with your asset in a manner and at a time of your choosing. There are some extreme situations where someone’s right to dispose is limited by law, perhaps owing to an insolvency process. Existing land reform measures might also afford a community body first dibs on an asset, such that an owner who decides to sell a land asset is prevented from selling the asset to anyone else when there is a registered community interest in land over the particular area.

Suppose though you simply own a chunk of land and nothing particularly special has happened – it’s not been bought with proceeds of crime, you haven’t gone bust, and no community interest in land has been registered by a local community body. As things stand, you can sell it when you want to and to whoever you want to (subject to the incoming owner having legal capacity to deal with you, which would not be the case if you were dealing with a wean in terms of the Age of Legal Capacity (Scotland) Act 1991, but I digress).

This strong autonomy might be about to change, on two levels. First, the consultation indicates a plan to “take forward the recommendation of the Scottish Land Commission for a Public Interest Test (PIT)”. Second, the consultation explores proposals for the inclusion within land management plans (discussed above) of information about areas of land that landowners would consider transferring or leasing to a community group and information about future ownership intentions, plus a requirement to give prior notice – 30 days’ worth – of intended sales to local community bodies as defined in existing land reform legislation and perhaps other worthy bodies such as registered social landlords (often still called housing associations, and now regulated by the Scottish Housing Regulator). This accords with the even more recent Scottish Land Commission recommendation from its Natural Capital and Land: Recommendations for a Just Transition Advice to Scottish Ministers.

I’ll start with the PIT, which builds on the Scottish Land Commission recommendation that the forthcoming Land Reform Bill should include “a public interest test for significant land acquisition, at the point of transfer, to test whether there is a risk arising from the creation or continuation of a situation in which excessive power acts against the public interest.” For completeness, I’ll quickly acknowledge that in its Recommendations for Action in January 1999 the Land Reform Policy Group suggested that a law should be passed to allow time to assess the public interest when major properties change hands (at paragraph 3.2). Over twenty-three years later we might be on the way to actually having a legislative provision for something like this, even if it is not quite what Lord Sewel’s LRPG had in mind.

The proposed PIT would, as I understand it, be applicable to large-scale landholdings that are being transferred. I am taking this to mean someone selling 3,000ha or more, but then again I’m not sure this interpretation is the only one that can be adopted, and I note in Lovett’s blog post for the Scottish Land Commission he envisages it to apply to sellers who own a total of 3000ha or more then sell off any of that, giving the example of an owner of a 3,002ha holding selling 5ha. It would also apply where a large-scale landholding is to be created, such that someone who already owns neighbouring land acquires new land in a way that brings about a large-scale landholding. Remember my example of Langholm above? Apparently that second acquisition would engage the PIT.

The next thing to consider is who is affected by this test. Conscious of the possible human rights implications of any scheme for existing owners (given that it is those with possessions who can rely on Article 1 of the First Protocol to the ECHR for protection), the Scottish Land Commission targeted prospective buyers of land (i.e. the concern was where a purchase could create or exacerbate a scale/concentration issue if the buyer already held land in the area). The consultation suggests a “dual approach”, such that “the seller would need to demonstrate that they were able to proceed with selling the land. This could potentially be managed as part of the conveyancing process, with information about whether or not the property fell within the scope of the test.”

Confession time: I’m not 100% sure what this means for a seller in practical terms. What if the seller is not able to proceed, for whatever reason? Presumably the seller could withdraw from the sales process, and if so shouldn’t that be that? Presumably there is no chance of the PIT shanghaiing the existing owner into continuing the sales process once it starts, so what consequences would there be? I fully understand that a seller might properly be obliged to make clear when a large-scale landholding is being sold, but beyond that I’m really not sure what is planned.

A test for a buyer, either of a brand new large-scale landholding for them, or where they are creating a new one, is easier to conceptualise. In terms of how it works in practice, not to mention how it might work in relation to transactions of company shares that own large-scale landholdings, a bit more consideration will clearly be needed.

As to the consequences, the consultation highlights these potential outcomes of the test if it were to be conducted on the seller before sale.

The first is that there is insufficient public interest to warrant interference in the sale, and the land in question could be sold as the seller wishes. That’s the easy one.

Next, the consultation imagines that there is sufficiently strong public interest in reducing scale/concentration and as such the sale can only proceed subject to specific conditions (related to the reason(s) that the sale is not in the public interest). Conditions could include: that the land in question be split into lots and could not be sold to (or acquired by) one party as a whole unit; and/or the land, in whole, or in part, should be offered to constituted community bodies in the area, and the sale can only proceed if the bodies consulted, after a period of time, indicate that they do not wish to proceed with the sale.

Without meaning to be too obtuse, any sale by a large-scale landowner will reduce the scale and concentration problems in relation to that landowner. That’s axiomatic. As such, I think care needs to be taken to ensure this proposal does not undermine itself, and the wider benefits of allowing a proliferation of smaller holdings or new players to get involved really will need to be engaged with, studied and catered for when framing the legislation. Further, and perhaps perversely, part of me fears such a scheme could even influence current owners not to sell larger parcels of land at all.

Granted, there is a heck of a lot more to this than my simplification above suggests, and past landowner conduct to engage a local community and indeed to diversify ownership can be taken on board. Maybe these are not the large-scale landowners we need to worry about though.

As for what could happen in relation to a prospective buyer, there is a suggestion that the application of the test could result in an outcome placing specific conditions on the buyer. The example given is a requirement to include in a management plan provisions to restore degraded peatland or to make part of their holding available to local compliant community bodies. Presumably also there could be an outright veto of a specific buyer, but that isn’t mentioned.

Next, there is the prior notification of intention to sell.

This proposal seeks to allow communities to get information about planned transfers of landholdings that are local to them, but it does so in a way that, quite deliberately, does not in any way undermine the pre-emptive community right to buy found in Part 2 of the 2003 Act. The best way for a community to be notified about goings-on in relation to a parcel of land is to register an interest in it. By design, the prior notification plan will never reach the high watermark of the 2003 Act scheme.

The proposal for non-Part 2 registered land is that large-scale landowners be obliged to give notice to suitably constituted community bodies in the surrounding area and/or such other worthy bodies who seek social and/or community benefit in the area that they intend to sell. This would entail a public register of bodies that could benefit from this scheme for a large-scale landowner to check. The consultation suggests that there should be 30 days for the community body or bodies to inform the landowner whether they are interested in proceeding with the sale. Assuming that a community body wished to proceed, it is envisaged that that body should be able to register their interest with Scottish Ministers under a new statutory mechanism, and that there should be a further six month period for the community body and the landowner to negotiate the terms of the purchase and for the community body to secure funding [which is slightly less than the eight months under the Part 2 scheme]. Situations where prior notice is not possible (such as the sudden death of a landowner) are to be catered for.

For my part, I have mixed views on this. I incline to the view that prior publicity of significant land dealings is a good thing, and in previous work on interventions in land markets I was part of a team that considered e.g. measures in Australia to that effect. This is not quite blanket prior publicity though. Rather, it is tipping off people who are organised enough to register their community body at a new register to the effect that they are generally interested in land in their area, yet not specifically interested enough in a particular parcel of land so as to register in relation to that land. I also fear six months is quite a tight turnaround for negotiations and, more importantly, putting together a funding package. On balance, I would prefer for this prior notification to be there than not, it’s just I hae ma doots as to how much impact it will actually have.

New conditions on those in receipt of public funding for land based activity

“Cross-compliance” has been mentioned a few times already, in terms of e.g. the need to comply with the LRRS and produce land management plans to be assured of public funding. The Scottish Government is also exploring whether there might be any additional requirements for land based public funds that could be placed on future awards.

One potential requirement is that the land related to the claim is registered in the Land Register of Scotland. There is an ongoing (optimistic) drive to “complete” the Land Register by 2024, so in that regard any driver towards this is understandable. In this context though, this proposal comes from pretty much nowhere. My own gut reaction is this is unnecessary distraction from existing methods of completing the Land Register, and in any event the team at Registers of Scotland have enough to worry about in terms of applications that have piled up (per this article from the August issue of the Journal of the Law Society of Scotland).

There is also a proposal that all recipients of Scottish Government land-based subsidies be registered and liable to pay tax in the UK or EU. This issue crops up again later in the consultation as well, in Part 11 on Transparency. Over and above all the existing moves towards transparency (including the (Scottish) Register of Persons Holding a Controlled Interest in Land and the (UK) Register of Overseas Entities), there is an indication that the Scottish Government would like those seeking to acquire large-scale landholdings in Scotland to to be registered in an EU member state or in the UK for tax purposes.

It likely won’t have escaped your attention that Scotland is no longer in the EU, so why bother putting EU citizens and/or entities in a privileged position as compared to (say) a Norwegian or a New Zealander? Needless to say, politics are at play, but for what it’s worth I don’t think this arrangement could easily be challenged by a non-EU citizen on e.g. human rights grounds. Also, in this situation, the relatively simple expedient of a Norwegian or Kiwi registering an entity in the UK or EU (or becoming a taxpayer in the EU/UK themselves) would allow for them to own land in Scotland. I don’t want to get too bogged down in all of this, as such I will now move to the one further aspect of the consultation that I think merits a bit of detailed analysis.

Land Use Tenancy

The final thing I consider in this already monster blog post is tenancies, and specifically the introduction of a new form of tenancy.

The law of landlord and tenant is something of a research area for me and I feel like I should get excited about the new “land use tenancy” proposal. As things stand though, I’m a bit easy-osey about it all, save for a couple of key points: conversion of existing tenancies; and whether or not this new vehicle nevertheless offers the chance for a landlord and tenant to come to their own arrangement (i.e. they are non-compulsory).

I should explain briefly what the proposal is. In the view of the Scottish Government, the current system of rural tenancies creates some barriers to “those who want to undertake a combination of agricultural and nonagricultural activity within a tenancy” and that “[t]his can prevent tenants from delivering a range of environmental benefits, and may result in them ending their tenancy early.” In response to this, a “Land Use Tenancy” could allow for multiple eligible land use activities within one tenancy (with the examples of “woodland management, agroforestry, nature maintenance and restoration, peatland restoration, and agriculture”.) Of course, a landlord and tenant might agree a lease in relation to some of these activities anyway, but the plan is to have a legal framework that would set out key terms and conditions of the tenancy for a tenant and their landlord, including in relation to benefit sharing.

This does sound interesting, but as I say, will it be compulsory in some or all circumstances where the scheme is applicable? If not, it will need to be sufficiently attractive for both parties, lest take-up be affected.

Finally, there is a note to the effect that tenant farmers and small landholders would be able to convert an existing tenancy into a Land Use Tenancy, to “allow them to undertake a range of diverse land management activities to deliver national climate and environmental objectives without leaving the landholding”. From the consultation questions, it appears that a landlord would have to agree to this change. This insulates the scheme from a human rights law challenge, but it might prevent some existing tenants from unlocking the benefits of the scheme and as such perhaps incentives for sceptical landlords may need to be considered.

Conclusion

That’s quite a big blog post really – over 6,000 words, which is far too long and much more than I would ever allow for any blog posts I edit as part of my day job. I’ve ignored my own rules though and thought it was best to keep everything together in a single post, rather than split it up into separate posts. As I say, this makes it one for the land reform purists.

This is a whopper of a post and I fear I’ve not said much about human rights. I’ve also not said what the consultation doesn’t cover, which can be as interesting as what it does, although I suppose there is Part 12 on “Other land related reforms” which will allow for consultees to make wider points about other matters, such as fiscal/tax matters, and a final catch all about “any additional ideas or proposals for Land Reform in Scotland”. The eclectic responses to that question will no doubt make interesting reading for the consultation team.

Anyway, you’ve got one month left to respond to the consultation. Hopefully this blog post serves to help people understand what this is all about. If not, I think it at least helped to formulate my own thoughts on it all. I’ve had my fun and that’s all that matters.