Access All Areas? May Festival event at the University of Aberdeen

The University of Aberdeen’s May Festival runs from Friday 25 to Sunday 27 May.

As part of it, I am speaking at a free event on Saturday 26 May at 11:00.

This is a panel event, on the topic of access to land, with Dr Heather Morgan (a lecturer in Applied Health Sciences at the University of Aberdeen), Eleisha Fahy from ScotWays, Bob Reid (who was heavily involved with the introduction of “access rights” by the Land Reform (Scotland) Act 2003) and Brian Harrison from Sport Aberdeen.

I am hoping this event will bring a nice mix of law, policy, history and public health chat together. It will explain how Scotland’s access regime has come to pass, how it works, the opportunities and challenges associated with increased outdoor access, the benefits of getting out and about, and means to facilitate outdoor access. Regarding the latter, it will do so with reference to Aberdeen’s original, free-to-play, location-based, augmented reality game (available at Apple’s App Store here) and organised walking tours of Aberdeen.

Whilst it is free, booking in advance is necessary to keep track of numbers. For more information, including a link for booking, please click here. (There is also a Facebook event here.)

If my public access to land chat is not your bag, no worries, but I do recommend you check out the full May Festival programme to see what else is of interest.

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Residents of Connecticut town offered square foot of Scotland and title of laird – a reply

On 3 April 2018, this article appeared on the website of the Guardian: Residents of Connecticut town offered square foot of Scotland and title of laird. I imagine it was aimed at its US readership, penned as it was by a US correspondent, but it appears in the “Scotland” (the country, not the place in Connecticut) section of the website.

Anyhoo, it is fair to say there were some issues with what can charitably be described as a puff piece. There was a bit of a reaction to it. Including from me. A Twitter thread ensued, beginning here.

In that thread I ask six questions, of varying degrees of importance. None were answered, despite my best efforts at polite cajolery. At some point in the thread, I highlight to the journalist Adam Gabbatt the potential that I might write a blog post about his article, subject to him clarifying any issues. No clarifications followed. As such, here is my promised blog post.

In no particular order, these were my questions, with a bit more flesh on the bones where relevant.

In the text of the article it is noted that the bunch of people who engaged with Highland Titles have “become landowners“, or similar. How do they become landowners if they are not able to register their land in accordance with the Land Registration etc. (Scotland) Act 2012?

Second, it is noted that they can “become a Laird, Lord or Lady of Glencoe”. Nowhere is it noted that “Glencoe Wood” is not actually in Glencoe, the actual place. I asked whether the journalist knew this, because it probably is worth clarifying. I mean, if I somehow acquired a bit of land in, say, Portlethen just south of Aberdeen and renamed it Dunnottar Wood and assured people they could become a Laird, Lord or Lady of Dunnottar, I suppose that is fine, but they might want to know it is a fair distance from Dunnottar Castle. (It is a comparable distance from the Highland Titles Reserve at Duror to the Glencoe Memorial Site, according to Google Maps.)

Third, where is “Loch Linnie“? I think what was meant was Loch Linnhe.

Fourth, in the article it notes “the site’s conservation status will stop the new landowners building on their 12in x 12in plots.” What conservation status? Is it one recognised by law? Not that conservation activities need to fall within local, national, EU or international designations, but it would be useful to know these things.

Fifth, on the basis it was noted that Highland Titles Charitable Trust for Scotland is a registered charity, I asked where it was registered. This was an unnecessary question on my part. It is registered in the Channel Islands. Guernsey, to be precise. Many businesses and charities operate out of the Channel Islands. Some countries have rules about what entities are able to own land assets. (Yes, actually own, not souvenir plot non-publicly-state-registered own.) Scotland is not one of them. The unregulated Scottish land market something that has been looked at a few times over the years, including recently by a research team that I formed part of. Highland Titles Limited, the landowning entity that grants souvenir plots to its customers, is registered in Alderney. It is in turn owned by Highland Titles Charitable Trust for Scotland. All of this is perfectly in order. From an academic perspective and an information to the customer perspective it might have been nice if some of these points had been drawn out, but I appreciate newspapers have word limits in a way that this blog post does not and it would have been quite a shoehorn to get a discussion of contemporary Scottish land reform into the piece.

Sixth, I asked if it was possible to explain the statement “Because you’re a landowner in Scotland, albeit a small plot, you get to use the title of ‘Laird’…And Laird translates to Lord or Lady.” How does this landownership (see above) allow you to be a Lord? And what does the Procurator Fiscal to the Court of the Lord Lyon, who deals with enforcement matters to do with heraldry and Scottish coats of arms, say about this? This was another unnecessary question on my part, because I know his view. I quote what was said (in 2014) below.

‘Souvenir Plots’.

Over the last 2 years, the procurator fiscal has dealt with a number of enquries relating to businesses which sell small plots of land (typically 1 sq. metre) to customers who are told that on becomming an ‘owner’ of the land, they may call themselves the ‘Laird of X’. This office is only concerned with the use of un-registered heraldry either by the business selling the land (e.g. as displayed on the ‘certificate of title’) or by the purchaser assuming the ‘arms’ as their own. The use of such un-registered heraldry is an offence under Scots law.

Okay, that does not actually strike at the practice, but it does make clear the limits of one of these lordships, ladyships or lairdships. Granted, the Guardian article also does this, by quoting the Marketing Director of Highland Titles where he noted those with souvenir plots are “not going to get access to the House of Lords“. (That does raise an interesting concept for Lords reform, actually…)

Anyway, enough of that, why am I still writing about this? That is a darned good question. In a way I wish I wasn’t. File my repeated writing about souvenir plots alongside the tiresome “debate” about Scots Gaelic. My two reasons I suppose are as follows.

First, the Guardian article has stickability. I have no doubt it will turn up more readily on the internet than this here blog post in the future. So be it. I still thought there should be at least one more readily accessed explainer about it than my Twitter thread.

Second, this gives me a chance to air some of the things I find of professional interest, including previous work on land registration and recent work about land markets. Sure, some might observe that my writing about Highland Titles again is either quasi-obsessive or ripe to give more publicity to an operation I have no stake in. Again, so be it. I will try to mitigate future writing on the subject, but who knows what the future will bring.

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Levelling the land: pro bono expenses orders

This is a blog (sign)post, highlighting something I have written for the Journal of the Law Society of Scotland about pro bono expenses orders.

Pro bono expenses orders, which may come to be known as legal volunteering expenses orders, are new devices that can be used in Scottish court proceedings. They are provided for in section 9 of the recently passed Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill (PDF).

When it is fully implemented, this provision will allow a court to make an order against a litigant where that litigant has been up against a party who has been represented “free of charge” (pro bono publico – for the public good). As things stand, and as explained in my article, such a litigant can get something of a windfall by not having to pay the expenses of a party who has the benefit of free representation, which could have been payable where the other party had paid for representation. Further, such a litigant has less incentive to settle, as the non-existent expenses cannot be counted in any settlement negotiations.

This will soon change, so those issues that might skew a case that has been taken pro bono can be avoided. But the implications will also go beyond any individual case. The beneficiary of any orders made will be a suitable charity who can then use the monies received in ways that will help address wider access to justice issues.

This seems long overdue. An equivalent power was introduced in England and Wales in 2007. As noted in my article, a number of people have been calling for this power through the years. In my classes, I have been flagging the non-availability of the power to students acting pro bono for some time as well. I am delighted that I will soon no longer need to do so and instead be able to direct students and other pro bono agencies to this power.

That’s enough for this blog post about the new power. The rest is in the longer article. But before I go: yes, the article is replete with references to the band The Levellers.

I have been a huge fan of The Levellers for years, so it does not take much for me to refer to them. I did have a legitimate reason to do so here though, honest. When I realised that an earlier article by Emma Boffey calling for the introduction of a pro bono expenses order gave me a perfect in to talk about Levelling the Land I couldn’t resist. #sorrynotsorry

Incidentally, there are loads of songs by The Levellers that deserve legal scrutiny. Battle of the Beanfield or PC Keen anyone? And there is surely room for jurisprudential analysis of Dirty Davey: “It’s a kick in the head, and a prison bed, and they tell you it’s the law…” Or “Corrupt corrupt, from the bottom to the top and they tell you it’s the law…” And, more in line with the article I have just written, “There’s a law for the rich, a law for the poor, and a law for Dirty Davey“. That is for another time. I just hope this blog post might inspire someone else to channel The Levellers and deploy a weapon called the word.

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Drumlean Access Case – Analysis for ScotWays

This is a blog (sign)post, to allow those who stravaig onto my blog to navigate to something I have written about the right of responsible access in terms of Part 1 of the Land Reform (Scotland) Act 2003.

I have written a note for ScotWays, which is a charity that seeks to protect public access to land in Scotland. My analysis of a recent important case where a national park authority successfully objected to a landowner’s attempt to restrict the right to roam is available online.

For additional context, I offer two photos. The first is of a gate which – as I understand it – is one of the two gates the landowner has been ordered to leave unlocked. The second is from above the enclosed land, looking south towards Loch Ard. Both photos were taken by me. Further context is also available in the judgment (PDF) published online by www.scotcourts.gov.uk, which (commendably) provides maps of the area as annexes to the Opinion of the Inner House of the Court of Session.

Kennels GateEnclosed land at Drumlean
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A clear explanation of the case involving a Council, Jack’s Mother, Jack’s Dad and Jack

Last year, I was lucky enough to secure a guest blog post from barrister and family law blogger Lucy Reed, aka @familoo. The post was about when you as a legal adviser or McKenzie friend should pause and consider whether you need to ask for help in a legal dispute.

As noted in my reflective 2017 blog post, this ended up being “my” most read post of last year. I don’t grudge that; honest. It was a well-written and important piece. It was great to give it a home.

A few days ago I noticed a court decision in an English family law matter, to do with the welfare of a child. Family law is not a specialist area for me, but what caught my eye was how well-written and understandable the judgment was. A special effort had been made to render the judgment in plain English because the father of the child has “ADHD, depression and a mild learning disability” and as such might struggle to follow a verbosely expressed ruling.

I then noticed a tweet by Philip Marshall QC, in which he tagged the judge. I think this is the first time I have seen a judge tagged. It also led to another realisation: “wait, I know the judge in that case!” Well, sort of know: a contrived connection, I grant you, but I’m claiming it.

Important as I think the guest blog post I referred to above is, I am delighted that Deputy District Judge Reed has moved on to writing other things. She has rightly been lauded for the judgment, as reported in the Law Society Gazette and The Times (£). The Gazette raised an analogy with an earlier family law judgment that took the form of a letter to a young person. Plain English FTW.

I really don’t have much to add to this, short of recommending you have a look at this and the earlier decision even if you are not an English family lawyer. The style and content of the writing give all who write about the law something to think about.

Meanwhile, and to borrow an observation that Marshall made in his tweet, I suppose this may mean Lucy is “lost to us” in the Twittersphere and blogosphere. If that is the price we need to pay for judgments such as this, so be it.

UPDATE 23 April 2018: I knew there was something else I should mention on this topic, and that is this recent article: Lesley-Anne Barnes Macfarlane, “Patrick v Patrick and Re A letter to a Young Person: Judicial Letters to Children – an Unannounced, but not an Unwelcome, Development” (2018) 22 EdinLR 101. It is currently the featured online article of the Edinburgh Law Review, available here.

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The Prescription (Scotland) Bill – some thoughts

This is a wee blog (sign)post, pointing to some work in relation to a current reform project that is before the Scottish Parliament.

The Delegated Powers and Law Reform Committee of the Scottish Parliament recently issued a Call for Evidence in relation to the Prescription (Scotland) Bill. Additionally, I was contacted by one of the team involved in this exercise inviting me to go to the Scottish Parliament to give evidence in person on the matter. Flattered as I was by this, my immediate reaction was, “There are better people than me to give evidence on this.” Fortunately, I work with one such person: Dr Andrew Simpson.

Andrew and I then worked up a response to the questions included in the Call. The various responses received can be accessed online here and our response is here (PDF). I understand Andrew will be giving evidence at the Scottish Parliament on 17 April 2018. Accordingly, I will dodge any difficult questions about our response until after that evidence session, but if you do have any comments I would be happy to hear from you.

Oh, and if you are currently a bit confused by all of this and do not really know what this reform exercise is for or perhaps even what prescription is, I would direct you to this SPICe briefing note on the topic.

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Research on interventions to manage land markets and limit the concentration of land ownership

The Scottish Land Commission has just published a Report which it commissioned on interventions to manage land markets and limit the concentration of land ownership in places other than Scotland. It can be accessed here (PDF here). It draws insights from suitable comparators that should, we hope, be meaningful for Scotland.

I say “we hope” because I was lucky enough to be part of the team that won the tender from the Scottish Land Commission for this contract, working with researchers at the University of the Highlands and Islands and a colleague at the University of Aberdeen. (I trailed this in an earlier blog post.)

For fear of paraphrasing our work inexpertly, I will refer you directly to the (open access) report. That begins with an Executive Summary, for those pressed for time.

One thing I will add here though is another “thank you” for all the country experts who assisted with the Report, who helped to make this is as current as feasibly possible. Our helpers from all sorts of airts and pairts are listed in an Annex to the Report.

Meanwhile, the Scottish Land Commission has also launched a discussion paper (as part of its Land Lines series) on concentration of land ownership (available here, PDF here), with an accompanying blog post here. No doubt that will attract some interest and associated responses. Meanwhile, I am part of another workstream for the Scottish Land Commission which will be looking at the experience Scottish communities have had with existing rights to buy, and I am looking forward to pressing on with that project as well.

Back in 2003, the then MSP Alasdair Morrison noted the following in the Scottish Parliament, as the (first) Land Reform (Scotland) Bill was passed into law.

Tha latha an uachdarain seachad, agus an-diugh tha achd Pàrlamaid ùr againn: Achd Ath-leasachaidh an Fhearainn (Alba) 2003. Tha e crìochnaichte.

We can allow the occasional flourish from a politician, but chan eil e crìochnaichte fhàthast. More followed in 2016. And it seems there is more to come. Stay tuned for the next edition of land reform in Scotland.

SLC Report

The report should be cited as: Glass, J., Bryce, R., Combe, M., Hutchison, N. E., Price, M. F., Schulz, L. and Valero, D. 2018. Research on interventions to manage land markets and limit the concentration of land ownership elsewhere in the world. Scottish Land Commission, Commissioned Report No 001
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