Established Titles

There has apparently been quite a fuss among so-called YouTubers (folk who run influential YouTube channels) about an outfit called Established Titles. This video by Scott Shafer has been viewed 2.5 million times in 7 days. He calls out Established Titles as a scam and criticises fellow YouTubers (who he claims are being offered $20,000 per month to promote the project) who have been sponsored by the company. I know nothing about this world of YouTube influencers but it is big, it is profitable, and it is influential.

Some YouTubers (eg Holden Hardman) have been sponsored by Established Titles and have now withdrawn.

Established Titles has responded to the fuss here.

Readers will be familiar with Highland Titles and their dubious practice of “selling” square-foot souvenir plots and claiming that this entitles you to call yourself a Lord or Lady of Glencoe. Readers will also be familiar with my own legal battle with Wildcat Haven Enterprises CIC, another outfit operating the same business model and (until recently) actively supported by Highland Titles.

Established Titles adopts the same business model. It was founded two years ago years ago by Katerina Yip, a US citizen who lives in Hong Kong. She describes the project in the “About Us” section as follows:-

Ye Olde Established Titles wast setteth up to preserve woodland in Scotland while eke making a unique gift for those looking for something different. T’was started by Katerina Yip who had fallen in loveth with the breathtaking sights of the Scottish countryside on trips madeth during her timeth studying Law at the University of Durham, and subsequently living in the medieval city of York.

The Established Titles website contains an address in the footer – “Lessendrum, Huntly, AB54 6XR, Scotland, UK”. This is not a registered office address and appears to be a reference to one of the parcels of land owned by the company that runs the project. Established Titles is not an incorporated organsiation.

The Established Titles website landing page invites you to “Save the Scottish Woodlands” and “Become a Lord today”. You are invited to “purchase a personal Lordship or Ladyship Title pack with dedicated land in Scotland”. In a footnote it is explained that “This is a purchase for a personal dedication for a souvenir plot of land. You may choose to title yourself with the titles of Lord, Laird or Lady.”

It goes on to claim that “every lordship of ladyship title pack contributes to the preservation and protection of woodland areas in Scotland.” It does not explain what this preservation or protection involves or how much your purchase contributes to that objective.

The certificate claims that Established Titles agrees to sell a plot of land of one square foot in extent.

Fact

1. The acquisition of a square foot plot does not entitle anyone to become a Lord or a Lady

2. The acquisition of a square foot plot does not confer ownership of the land which remains owned by the existing owner.

The Land

In their response to criticism, Established Titles claims that it “has been able to purchase a total of 6 different slots of land, exceeding over 200 acres in total area.

Established Titles owns no land in Scotland. In so far as they claim to, it is all owned by a company called Galton Voysey Ltd. which is a company registered in Hong Kong (No. 2232931).

In a letter to content creators, Established Titles claims to have acquired “over hundreds of acres of land”(sic). They claim to own six parcels of land across Scotland from Aberdeenshire to Wigtonshire. Five of those parcels (totalling 55.7 acres) are owned by Galton Voysey Ltd. The sixth, at Eddleston in Peebleshire is claimed to be owned by Established Titles/Galton Voysey but in fact is owned by a Sara Flynn, is part of an existing tree planting project approved by Scottish Ministers, and part of which is also registered for carbon credits (Carbon Registry No. ID: 104000000026523).

A 25 acre holding at Edleston is registered in the Land Register under the name of Sara Flynn (PBL6578) and a larger part (121 acres) remains in the Register of Sasines. An Advance Notice was registered on 19 August 2022 for a disposition from Sara Flynn to Galton Voysey Ltd. but has now expired and no disposition or sale is recorded either in the Register of Sasines or the Application Register of the Land Register.

Galton Voysey Ltd. thus owns not hundreds of acres of land but 55.7 acres to be precise.

The claim on the home page of Established Titles that “Each Pack contains one square foot of dedicated land on a private estate in Eddleston” is thus open to question.

Finances

No accounts of Galton Voysey Ltd. are available for public inspection. The company claims to plant a tree with every order through a partner project, Trees for the Future. Established Titles claims it has planted over 2,065,630 trees as at 2 December 2022. With the cheapest souvenir plot costing $49.95 (£40), this means that Established Titles must have generated an income of £82,625,200.

However, in its letter to YouTubers, Established Titles claims that Galton Voysey “has made a multi-million dollar loss on Established Titles”. Given that the products being sold are merely downloaded digital files, it is hard to see how this claim is accurate. The land acquired to date has cost £35,000 and, if a tree has been planted through its partner for every plot sold then Establsihed Titles, as explained above, has made revenue of over £82 million.

Questions for Established Titles

How much income have you made since the project started?

Why do you claim to own land at Eddleston when it is owned by someone else?

What is the reason for the multi-million dollar losses?

How much money have you contributed to partners in order to plant trees?


This blog has been supported by donors to my defamation crowdfunder who kindly donated their eligible refunds to my work on land reform.

This blog post is a response to the Scottish Government’s current consultation on a future land reform bill. Detaisl can be found here. The consultation closes on Sunday 30 October 2022.

The text below is not part of my consultation response as there is no provision on the consultation response form to allow respondents to make general comments about the scope and aim of the reforms. Instead the consultation asks questions about the proposals and I incorporate my answers to these below.

Introduction

I welcome the proposals for a new Land Reform Bill. Land reform remains unfinished business. it is also welcome to see attention turn to the question of Scotland’s concentrated pattern of private landownership.

After twenty years of devolution, however, the proposals (like previous legislation on community land rights) are focussed on dealing with the symptoms of Scotland’s dysfunctional land governance system rather than tackling the underlying structural features.

As SLC said in their Feb 2021 paper

The measures will not, on their own, deliver the longer term systemic change in patterns of land ownership that are required to realise the full benefits of Scotland’s land resource. Achieving this will require more fundamental policy reform, probably including changes to the taxation system. The need for such reform was also identified in the recommendations made by the Land Commission in 2019 and is the subject of ongoing policy work

The focus of the measures are on so-called large-scale holdings. Based on advice from the SLC that large-scale holdings can negatively impact communities, the proposals in Parts 5, 6 and 7, are designed to mitigate this negative impact.

This is where my analysis departs from the SLC and the Scottish Government. I want to see structural reform so that there are no adverse impacts to mitigate. I want to see the redistribution of landed power into the hands of local people, businesses, local authorities, community groups and social enterprises.

None of the proposals set out in this consultation paper will deliver that for the following reason.

The only market intervention is the public interest test. That will only apply to some land, will only apply where ownership of that land is being transferred, and even then will only result in a change in the pattern of ownership in a small number of cases where the test leads to that outcome.

The key reforms needed to tackle the concentrated pattern of landownership fall into two categories. The first is structural reform in the land market and the second is governance.

Structural Reform

The proven methods of structural reform in land markets is inheritance law reform and fiscal policy. The Land Reform Review Group recommended in 2014 that the distinction between heritable and moveable estate should be removed for succession purposes. Currently children and spouses have no legal rights to heritable property beyond the home. This stands in stark conntrast to virtually every other country inn Europe.

Fiscal reform is the other proven method of redistributing power over land by penalising the ownership of excessive landholdings.

Governance Reform

The Scottish Government has stated many times that it wants more involvement and engagement in the ownership and use of land. For example, in the consultation paper, Ministers restate key principles from the Land Rights and Responsibilities Statement

There should be …more opportunities for citizens to own, lease and have access to land” – and
“More local communities should have the opportunity to own, lease or use buildings and land which can contribute to their community’s wellbeing and future development”.

The core means to achieve this ambition is to democratise land governance. In other words to ensure that communities have control over the ownership and use of land (whether they own it or not) and that individuals, social enterprises and others can have enhanced opportunities to own, lease and have access to land.

Democratising land governance means creating a governance framework that has local democratic institutions at its heart. In current circumstances that means local authorities. It has been a conspicuous feature of land reform in the last twenty years that central government in Edinburgh has been given most of the decision-making powers in relation to land reform rather than locally accountable democratic bodies.

Indeed in 2021 paper, the SLC noted that

The potential role of local authorities should also be considered. Running through all three proposed mechanisms is the underlying intention to better connect landownership and decision-making with local democratic accountability. In most northern European countries that have regulatory mechanisms for land ownership, decision-making is generally embedded at a municipality level. Sufficient connection to local authorities, as a means of connecting decisions with local and regional circumstances, should be built into consideration of these measures.”

One example of why this matters in relation to this consultation is the proposal for compulsory management plans. Instead of management plans, what is really required are development plans to ensure the appropriate allocation of land to different uses in the interests of the community. The means by which this is achieved is through the planning system which is run by local authorities.

Conclusions

Comprehensive land reform should involve modernising land tenure, redistributing power through structural reforms of the land market, and democratising land governance.

The proposals outlined here offer some mitigations to the impacts of Scotland’s concentrated pattern of landownership but do nothing to tackle its root causes.

Given that the consultation does not allow for any views to be expressed about the merits of the approach taken. Instead, the consultation only invites views on the detail of what Ministers are proposing. In that light I have offered the following answers to the questions posed but the above analysis has not been provided to Government.

Apologies that some answers may be a bit unclear in terms of layout. I composed this blog offline.

PART 4 – Criteria for large-scale landholdings
1. Do you agree or disagree with the criteria proposed for classifying landholdings as ‘large-scale’:
a) A fixed threshold of 3,000 hectares No
b) 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 No
c) Land that accounts for more than a specified minimum proportion of a permanently inhabited island No
Please give some reasons for your answers and outline any additional criteria in the text box below:
I do not agree with the concept of large-scale landholdings as proposed.

  1. The existence of a defined extent of land does not necessarily correlate with the impact that decisions made about land can have on communities. For example, there is a case of an individual purchasing virtually all the hotels and many of the guest houses in a village (the guest houses to house the hotel staff). This has had a major impact on the local economy and other businesses. Such a case would not be covered by the proposals.
  2. Similarly, many large-scale landholdings as defined consist of extensive areas of upland with no-one living. There is no community to be affected.
  3. The concentration of landownership in Scotland is driven more by the accumulation of several landholdings of less than 3000ha to build a large landholding. This is true in the forestry and agricultural sectors. Very little of the concentration is due to trading in holdings of over 3000ha.

The idea has its origins with the Scottish Land Commission (SLC) whose advice to Government was that large-scale holdings are the most likely to pose a risk to the public interest by the excessive concentration of power over a large area.

However, the inclusion of criteria b) and c) is an admission that other circumstances can lead to concentrations of power also. Indeed the SLC itself argued that monopoly ownership of strategic infrastructure such as slipways, petrol stations as well as important cultural facilities and housing land supply can also be characteristics of concentrated landownership that could create a structural risk of excessive power.

2. Do you agree or disagree that family farms should be exempt from the proposals outlined in Parts 5 to 7 even if they are classified as a ‘large-scale’ landholding?
NO
Please give some reasons for your answer in the text box below:
No definition of family farms is provided but on the assumption that it means farms that are managed by a family business then I do not see why this should exclude them. Moreover, if family farms are to be excluded, what about family estates and family forests. Is there some feature of family businesses that means they are less likely to have adverse impacts when they exist at large-scale? if so, this evidence should be provided. In its absence, I do not see any rational for this exclusion.
3. Do you think that the proposals considered in this consultation should be applied to the urban context?
YES
Please give some reasons for your answer in the text box below:
Monopoly control of land can exert itself anywhere (see example above about hotels). In the absence of any evidence that there is any good reason to exclude urban land I would propose that it be included. The one other area of land that is not discussed here is the marine environment which is in effect under the monopoly control of Crown Estate Scotland. Ownership of the foreshore and seabed should be transferred to local authorities.
Part 5: Strengthening the Land Rights and Responsibilities Statement
4. We propose that there should be a duty on large-scale landowners to comply with the Land Rights and Responsibility Statement and its associated protocols. Do you agree or disagree with this proposal?
YES
Please give some reasons for your answer in the text box below:
The LRRS as it stands is voluntary and vague in its terms. It is vital that it be made statutory  but should apply to all owners of land. Moreover, it should form the basis for direct incorporation in the tenure system and thus individual titles to land making landownership conditional rather than absolute and ensuring that breaches fall within the scope of the Lands Tribunal.
5. If there was a legal duty on large-scale landowners to comply with the Land Rights and Responsibility Statement and its associated protocols, we propose that this should be enforced by having a formal procedure for raising complaints, and by making provisions for independent adjudication and enforcement.
a) Do you agree or disagree with the proposal above? YES
Please give some reasons for your answer in the text box below:
It is pointless to create legal duties if there is no enforcement.
b) Do you agree or disagree that only constituted organisations that have a connection to the local area or the natural environment should be able to report breaches of the Land Rights and Responsibility Statement? NO
Should these constituted organisations have a remit on:
Community YES
Charity YES
Public Sector YES
Please provide some reasons for your answers and any additional suggestions in the text box below:
If breaches of the LRRS are to made unlawful then, in common with most other things that are unlawful, there should be no restrictions on who can report alleged breaches.
c) Do you think the responsibility for investigating and dealing with complaints should sit with:
Scottish Government NO
a public body (such as the Scottish Land Commission) NO
Please provide some reasons for your answers and any additional suggestions in the text box below:
Neither Scottish Government nor public bodies should have any role as both are unaccountable to local communities. The responsibility should rest either with the Land Court or with a quasi-judicial committee with the local authority.
d) Should the potential outcome from an investigation of a breach be:
Recommendation for a mediation process YES
Recommendation on how the landowner or governing body could comply with the Codes of Practice/protocols YES
A direction to the landowner or governing body to implement changes to operational and/or management practices YES
Please provide some reasons for your answers and any additional suggestions in the text box below:
These three options are not the only possibilities. I think the remedies for a breach should include all of them but also include a statutory fine, compulsory acquisition of land, or enhanced levels of taxation.
e) Should the enforcement powers for a breach be:
Financial penalties YES
“cross-compliance” penalties YES
Please provide some reasons for your answers and any additional suggestions in the text box below:
The problem with any financial penalties is that they are not likely to be at a sufficient level to effect change and could be seen my many as just part of the cost of doing business. Enforcement powers should include (as noted above) confiscation of land.
6. Do you think the proposal to make the Land Rights and Responsibility Statement and its associated protocols a legal duty for large-scale landowners would benefit the local community?
NO
Please give some reasons for your answer in the text box below:
It is impossible to say. The LRRS principles are vague and the bar for compliance is likely to be low.
7. Do you have any other comments on the proposal to make the Land Rights and Responsibility Statement and its associated protocols a legal duty for large-scale landowners?
Instead of the vague administrative law framework represented by the LRRS, all ownership of land should be made conditional rather than (at present) absolute and the principles of the LRRS should be incorporated in a new land tenure system such that the principles have the same status as real burdens, act in the public interest and are enforceable.
Part 6: Compulsory Land Management Plans
8. We propose that there should be a duty on large-scale landowners to publish Management Plans. Do you agree or disagree with this proposal?
YES
Please give some reasons for your answer in the text box below:
The publication of management plans is unlikely to bring about much greater accountability. Most landowners already have management plans and some additional consultation and publication would be beneficial as would associated cross-compliance mechanisms. But what is needed instead are land use development plans agreed through a democratic process and bringing rural land use within the existing planning system. Such plans would include all the options for inclusion set out in Question 10. Such plans would be accompany red by powers of compulsory purchase to deliver local land use priorities
9. How frequently do you think Management Plans should be published?
Every five years seems reasonable
10. Should Management Plans include information on:
Land Rights and Responsibility Statement compliance YES
Community engagement YES
Emission reduction plans YES
Nature restoration YES
Revenue from carbon offsetting/carbon credits YES
Plans for developments/activities that will contribute to local and inclusive economic development or community wealth building YES
11. Do you think the responsibility for enforcing compulsory land management plans should sit with:
the Scottish Government NO
a public body (such as the Scottish Land Commission) NO
Please provide some reasons for your answers and any additional suggestions in the text box below:
Responsibility should rest with democratically elected local authorities.
12. Do you think the proposal to make Management Plans a legal duty for large-scale landowners would benefit the local community?
MAYBE
Part 7: New Public Interest Test
14. We propose that a public interest test should be applied to transactions of large-scale landholdings. Do you agree or disagree with this proposal?
DISAGREE
Please give some reasons for your answer in the text box below:
Such a public interest test needs to be tied to more objective criteria than simply that a holding is large scale. Environmental sensitivity, community development needs, local plan proposals, housing needs assessments, business needs are the kind of criteria instead that need to be applied (and to all land). it is unlikely that a public interest test will have much impact if it is restricted to large scale holdings.
15. What do you think would be the advantages and/or disadvantages of applying a public interest test to transactions of large-scale landholdings?
Unless there are objective criteria beyond scale then I don’t see many advantages.
16. Do you think the public interest test should be applied to:
The seller only N/A
The buyer only N/A
The seller and buyer N/A
Don’t know N/A
Please give some reasons for your answer in the text box below:
For the reasons given in Question 14, I do not think these options are relevant. They are predicated on the large-scale landholding premise.
17. If the public interest test was applied to the seller, do you think the test should be considered as part of the conveyancing process?
YES
Please give some reasons for your answer in the text box below:
Any conditions associated with the sale of land have to be considered as part of the conveyancing process unless there is an alternative statutory process put in place.
18. Do you think that all types of large-scale landholding transactions (including transfers of shares and transfers within or between trusts) should be in scope for a public interest test?
YES
Please give some reasons for your answer in the text box below:
This is vital for tackling avoidance if this proposal is to be adopted but see response to Question 14
19. Do you agree or disagree with these conditions? We have proposed that if a public interest test applied to the seller concluded there was a strong public interest in reducing scale/concentration, then the conditions placed on the sale of the land could include:
i. The land in question should be split into lots and could not be sold to (or acquired by) one party as a whole unit YES
ii. 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 YES
Please give some reasons for your answer and suggest any additional conditions in the text box below:
Subject to my answer to Question 14 (in which I do not agree with the public interest test applying only to large-scale holdings), the conditions would depend on the reason for failing the public interest test. I think such a test is difficult to apply in the way proposed (“to assess whether, at the point of transfer of a large-scale landholding, a risk would arise from the creation or continuation of a situation in which excessive power acts against the public interest.”) and that it would be far preferable to adopt other mechanisms to reduce the scale and concentration of landownership rather than simply mitigate it with complex public interest tests.
20. Do you think that a breach of the Lands Right and Responsibilities Statement should be taken into account when determining the outcome of a public interest test?
POSSIBLY
Please give some reasons for your answer in the text box below:
Again, the answer to this question depends upon the reason why the public interest test is being applied. it is is merely “to assess whether, at the point of transfer of a large-scale landholding, a risk would arise from the creation or continuation of a situation in which excessive power acts against the public interest.” then there is no reason to take into account any breach (at least on the part of the seller).
21. Do you think that a public interest test should take into account steps taken in the past by a seller to: a) diversify ownership – b) Use their Management Plan to engage with community bodies over opportunities to lease or acquire land

Please give some reasons for your answer in the text box below:

Again, the answer to this question depends upon the reason why the public interest test is being applied. it is is merely “to assess whether, at the point of transfer of a large-scale landholding, a risk would arise from the creation or continuation of a situation in which excessive power acts against the public interest.” then there is no reason to take into account any breach (at least on the part of the seller).
22. Do you think the responsibility for administering the public interest test should sit with:
the Scottish Government NO
a public body (such as the Scottish Land Commission) NO
Please provide some reasons for your answers and any additional suggestions in the text box below:
Responsibility should rest with democratically elected local authorities.
23. Do you think the proposal that a public interest test should be applied to transactions of large-scale landholdings would benefit the local community?
DON’t KNOW
Please give some reasons for your answer in the text box below:
It is probably unlikely to have much benefit as the proposal only applies to large-scale holdings, many of which change hands only very infrequently, comprise extensive areas of upland with no resident populations and the outcome of which is uncertain.
24. Do you have any other comments on the proposal that a public interest test should be applied to transactions of large-scale landholdings?
NO
25. We propose that landowners selling large-scale landholdings should give notice to community bodies (and others listed on a register compiled for the purpose) that they intend to sell.

a) Do you agree or disagree with the proposal above?

DISAGREE
Please give some reasons for your answer in the text box below:
Mechanisms such as Community Right to Buy and Asset Transfer schemes already provide means by which community bodies can acquire land. Few communities wish to take over large-scale holdings and the addition of yet another complex administrative process to be complied with by exhausted and udder-capacity voluntary groups is not desirable.
Question 25 b & c Not answered
Question 26 Not answered
Part 8: New conditions on those in receipt of public funding for land based activity
27. Do you agree or disagree with these requirements?

We propose the following eligibility requirements for landowners to receive public funding from the Scottish Government for land based activity:

  1. All land, regardless of size, must be registered in the Land Register of Scotland.
  2. Large-scale landowners must demonstrate they comply with the Land Rights and Responsibility Statement and have an up to date Land Management Plan.
Requirement i. NO
Requirement ii. NO
Please give some reasons for your answer in the text box below:
The question is posed very broadly – “landowners” and “public funding”. Fore the purposes of i., landowners includes everyone holding a title to land in Scotland, urban, rural and marine. Public funding includes grants for the arts, agricultural subsidies, tax reliefs (eg small business bonus scheme), and grantees for tree planting. Without knowing what is in or out of scope, it is impossible to answer this question.

In general terms, however, I do not think it is proportionate to require landowners to undertake voluntary registration on the Land Register to receive public funds. There is no direct link between the two. Public funding should be transparent without the need for land registration. Some public funds will be paid to tenants and they cannot be required to register the ownership of the land they lease.

On the ii point, the purpose of public funding varies. So long as the outcomes sought by the funding are achieved and the funding is transparent, I do not see the justification for compliance with LRRS to be a condition but having an up to date management plan would be beneficial.

Question 28 not answered
Part 9: Land Use Tenancy
29. Do you agree or disagree with our proposal that there should be a Land Use Tenancy to allow people to undertake a range of land management activities?
AGREE
Please give some reasons for your answer in the text box below:
Tenants of land need to be free to use land for the widest range of purposes. This tenancy will be useful bot ONLY if existing tenants have the right to convert. As a stand alone new tenancy, it will be of limited utility as few if any are likely to be granted.
30. Are there any land management activities you think should not be included within a Land Use Tenancy?
NO
31. Do you think that wider land use opportunities relating to diversification, such as renewable energy and agri-tourism, should be part of a Land Use Tenancy?
YES
32. Do you agree or disagree that a tenant farmer or a small landholder should, with the agreement of their landlord, have the ability to move their agricultural tenancy into a new Land Use Tenancy without having to bring their current lease to an end?
DISAGREE
Please give some reasons for your answer in the text box below:
A tenant farmer or smallholder should not have to have the agreement of the landlord to convert and agricultural tenancy into a new land use tenancy. History is replete with examples of new tenancy laws being introduced to strengthen the rights nor tenants and would have had no effect if the tenants had first to secure the agreement of their landlord. This proposal should be seen as a modernisation of tenancy law just as Section 42 (tenant’s right to timber) was in the Agricultural Holdings (Scotland) Act 2003.
33. Do you agree or disagree that when a tenant farmer or small landholders’ tenancy is due to come to an end that the tenant and their landlord should be able to change the tenancy into a Land Use Tenancy without going through the process of waygo, with parties retaining their rights?
AGREE
34. How do you think the rent for a Land Use Tenancy should be calculated?
DON’t KNOW
35. Would you use a Land Use Tenancy if you had access to a similar range of future Scottish Government payments which other kinds of land managers may receive?
DON’t KNOW
36. Do you think that there should be guidance to help a tenant and their landlord to agree and manage a Land Use Tenancy?
Might be helpful
37. Do you think there should be a process to manage disputes between a tenant of a Land Use Tenancy and their landlord?
YES
Please give some reasons for your answers and outline how this process could be managed in the text box below:
it should be broadly the same process as is used to manage disputes under existing agricultural tenancies.
38. Do you agree or disagree that tenants of a Land Use Tenancy and their landlords should be able to resolve their legal disputes in relation to the tenancy through the Scottish Land Court?
AGREE
39. Do you have any other comments on our proposal for a Land Use Tenancy?
NO
Part 11: Transparency: Who owns, controls and benefits from Scotland’s Land
41. Do you agree or disagree with our proposal to explore:
Who should be able to acquire large-scale landholdings in Scotland AGREE
The possibility of introducing a requirement that those seeking to acquire large-scale landholdings in Scotland need to be registered in an EU member state or in the UK for tax purposes AGREE
Please give some reasons for your answer in the text box below:
Greater transparency is vital and I have long argued that the ownership of any land (not just large-scale holdings as defined) should be owned by entities registered in the EU. Now that the UK has left the EU, however, I would restrict the criteria to those registered within the UK. Many EU states have limited transparency and there is no benefit to enabling non-UK EU entities privileges not available to entities from other countries such as Norway or the USA.

The paper argues that this could “help deal with instances of absenteeism” but fails to say how this is to be achieved. In fact it will do no such thing unless there is a requirement for those in control of such entities to live on their landholdings or at least in Scotland and be a Scottish taxpayer.

Part 12: Other land related reforms – tax
42. Do you have any views on what the future role of taxation could be to support land reform?
Fiscal reform is a vital part of land reform and I am disappointed that there are no concrete proposals presented for consultation. The following are suggestions that I plan to elaborate on inn the coming months.

  1. All non-domestic land should be one the valuation roll
  2. All land should be liable to at least some property tax even if at a modest level
  3. It is inconsistent that the occupiers of non-domestic businesses inn urban areas are liable for non-domestic rates but large rural holdings are exempt.
  4. It is inconsistent that (for example) Danish landowners in Scotland pay local land taxes on their Scottish holdings to the municipalities in which they live in Denmark but not to Scottish local authorities.
  5. Scottish local authorities should be given much wider tax powers by repatriating the system of non-domestic rates, providing capital gains tax powers, and transferring LBTT to local authorities.
  6. Non-domestic valuations should be split into one for the land and and one for the improvements thus providing local authorities with the ability to levy non-domestic rates on each part in the proportion that they choose (100% on land would be a land value tax).
  7. Council tax should be scrapped and replaced with a progressive domestic property tax
  8. Local authorities should have flexibility to set the rates and bands of domestic property taxation together with any supplements or reliefs they consider appropriate.
43. How do you think the Scottish Government could use investment from natural capital to maximise: a) Community benefit and b) National benefit
I do not agree with the proposal to create natural capital markets. The restoration and maintenance of essential natural ecosystems should be a legal responsibility of land ownership.
44. Do you have any additional ideas or proposals for Land Reform in Scotland?
Yes, lots. I will be publishing a draft Bill incorporating them in the coming months. Some elements include the following

  1. Enhanced protection for common land
  2. Transfer of ownership and management of Crown land from Crown Estate Scotland to local authorities
  3. Powers for local authorities to acquire land for developement at existing use value
  4. Introducing a new Use Class for second homes as has been enacted in Wales.
  5. Democratising charities that own land such as Mount Stuart Trust (Bute) and the Applecross Trust (Applecross) to allow local people to join as members
  6. Transfer decision making on community rights to buy to local authorities
  7. Modernise the Land Settlement (Scotland) Act 1919
  8. Reform inheritance law to allow children to inherit land
  9. Introduce residency requirements for landowners
  10. Enact mandatory targets for nature restoration
  11. Make the destruction and ongoing decline in native forests a criminal offence unless otherwise approved.
  12. Reform District Fishery Boards
  13. Democratise hunting though a licensing system operated by local authorities

and much more.

 

Pictured – Kinloch Castle

I am just back from four days on the Isle of Rùm.

There have been four phases in the history of Rùm.

The first and longest was the pre-clearance period stretching from pre-history up until 1826 when Maclean of Coll cleared 300 women, men and children off their smallholdings and shipped them off to Nova Scotia aboard two ships, the Dove of Harmony and the Highland Lad. Two years later a further fifty were cleared leaving one family of native islanders.

The second phase was when the island was run exclusively as a sheep farm. That ended in 1839. In 1845 Rùm was sold to the 2nd Marquis of Salisbury to begin the third phase – as a hunting estate along with the introduction of Red Deer.

In 1888 the island was sold to the industrialist, John Bullough whose son, George inherited it in 1891. George Bullough was fabulously wealthy and spent his time living a life of leisure. he commissioned the construction of Kinloch Castle, an opulent holiday home which was completed in 1901.

In February 1957, George Bullough’s widow sold Rùm to the Nature Conservancy (now Scottish Natural Heritage) and so began the fourth phase.

One of the conditions of sale (which was included as a burden in the title) was that the island would be used as a National Nature Reserve and it was subsequently designated five weeks later. The designation statement noted that,

never having been a tourist or mountaineering resort and having no crofters, the island is ideally suited for much field work…”

The stated purpose was the

safeguarding and perpetuating the natural assemblages of plants and animals which they [the reserves] now contain, plant and animal assemblages which might settle there under more favourable conditions, and special features of geological interest.”

There is no mention of people. In September 1957, a request by the farming tenant to renew his lease was refused. Rum was now no longer a producer of food for the first time in millennia.

Official restrictions were placed on public access which led to furious complaints. The Nature Conservancy’s motives were clear in a letter written by the Chair, Max Nicholson to the Bullough’s lawyers in March 1957 which concluded

Perhaps we should consider other ways too of making Rum a model Hebridean Community (without Hebrideans)

So began the fourth phase in Rùm’s history – an island whose only residents would be those employed by the Nature Conservancy.

No crofters, no Hebrideans, no tourists and no mountaineers.

The massive flaw in the whole scheme was the fact that the island was sold lock, stock and barrel (with the sole exception of the Bullough family mausoleum on the west side of the island at Harris).

The castle came with the sale and the Nature Conservancy had undertaken to maintain it “as far as might be practicable” but numerous attempts to secure a sustainable use came and went. It was used for hospitality and accommodation but the fabric deteriorated to the point where it is arguable if it has any future at all.

The fifth phase is in the process of gestation. In 2009, ownership of most of the land in and around the village of Kinloch was transferred to the Isle of Rum Community Trust. For the first time in the island’s modern history, the people who lived on Rùm could look forward to a far greater say in how it was managed.

Today, however, there are doubts as to whether the island’s largest landowner, Scottish Natural Heritage shares the vision they played such a key part in back in 2009. At the heart of the matter is the future of Kinloch Castle. What to do with this bizarre edifice has dogged SNH and its predecessor for over half a century

In June this year, SNH entered an agreement to sell the castle and land surrounding it to a financial speculator, Jeremy Hoskins, a businessman from the north of England and political donor to the Brexit campaign and the Reclaim Party.

The Heads of Terms signed in June 2022 make clear that the proposal is to buy the castle and a large area of land around it (the red shaded area in the map above). The agreement stipulates that Hoskins will own the road or esplanade in front of the castle currently used as the main road to Kinloch and that there shall be no servitude over it. Unfortunately for Mr Hoskins, there is a servitude over it in favour of the Isle of Rùm Community Trust and SNH is in no position to acquiesce to Hoskins demands.

The future of the castle is vital for the island community of 40 or so people only 10% of whom now work for SNH. Children from the island are nowt attending high school for the first time and plans have been developed by Isle of Rum Community Trust for development of the community and facilities.

Despite the Scottish Government’s own commitments under the Land Rights and Responsibilities Statement, the Community Trust has had no formal involvement in the decisions being taken by SNH. No deal should be struck without the active involvement of the Trust and legally binding agreements about the future of the castle.

The current proposals from Hoskins include the transfer of ownership to a charitable organisation but there is no detail on what its objects or governance will be. There are no agreements of any kind with the local community and no clarity on any business plan, future use or how it fits with the longer term strategy for the island, its residents, the NNR and the wider economy.

SNH understandably want to offload this liability but they don’t have to live with the consequences. Hoskins is enthusiastic about the acquisition but, again, won’t have to live with the consequences. He can sell up and walk away at any time.

Those whose futures are intimately tied up with the project are the local community. Sadly, there are far too many examples of well intentioned wealthy men (it is always men) buying up land and property and promising the earth. When such promises are not fulfilled, they walk away. On most parts of the mainland, the situation can, in time, be recovered. On an island like Rùm with no grid connection, no public roads and a fragile economy, any failure can be terminal.

It is not for me to venture any solutions to the future of Kinloch Castle and there have been plenty suggested. It is not an easy job. But one thing is clear. That future has to be openly discussed and debated with the full participation of local people. Any agreed course of action must identify all of the risks and opportunities and proposed mitigations. Governance, investment, and management must all be tied down and agreed.

The Isle of Rùm Community Trust issued this briefing note yesterday.

Unfortunately the current approach by SNH is hasty, incomplete, lacking in community buy-in and fraught with risk. It is time for Ministers to make their views clear on how the situation can be resolved whist respecting the Scottish Government’s policies on land reform, rural development, net-zero, islands and the economy.

Proposals to conclude the sale on 31 October 2022 must be abandoned.

See also this blog by Dave Morris at parkswatchscotland

This blog is the second in a series of blogs about the Scottish Government’s consultation – Land Reform in a Net Zero Nation (see this page for details). It follows a previous blog that provided an overview of the proposals.

This blog provides a short and preliminary examination of the issue of scale and concentration of landownership and is prompted by discussion in the online meeting last night with the Minister and her team,

In the introduction to the consultation paper, the Minister states in her introduction that “we are driving forward reform to historically iniquitous patterns of landownership.”

On page 6, it is stated that “The first three proposals we put forward are aimed at tackling the issues associated with scale and concentration of land ownership in Scotland.”

As was discussed in my previous blog, these three proposals are focussed on large-scale landholdings. I will blog further on what this might mean but for the moment I want to flag up potential issues with the statistics used by the Scottish Government.

Landholdings over 3000ha

Page 7 of the consultation paper contains the following claim,

As of May 2022, Registers of Scotland data indicates that 386 of the 1.86 million titles in the Land Register of Scotland had a total land area of over 3,000 hectares. These titles cover 1.62 million hectares of land, equating to 20.2% of Scotland’s total land mass.

I asked Registers of Scotland (RoS) what the basis of these figures was.

They replied as follows (Land Reform Team refers to officials in the Scottish Government)

The methodology agreed by the Land Reform Team was:

Methodology
For each Title on the Land Register
Measure the footprint of all rights/extents displayed on the title plan, regardless of the type of interest
where the total footprint is over 3000 hectares.

Limitations:
As non-ownership rights are included, the area figures and title counts may be an over-estimate.
Customer may not be interested in leases

Output:
When programmed and executed, this methodology returned
Number of titles over 3000 ha:        386
Land mass covered:                       1,616,976 ha
Area of Scotland:                            8,007,825 ha
% of Scotland’s land mass:            20.2%

I have analysed the Land Register data and found 231 holdings covering 1,531,640ha. So the extent is in line with the Scottish Government’s figures but the number of holdings is not. This is almost certainly because the RoS exercise included wind farm leases and other types of interest that overlap with ownership.

The number of titles is thus greater (386 compared with 231) and the area is also 6% greater than my own figures. Both datasets include almost all of the National Forest estate and so are also both overestimates of the extent of large-scale landownership on the Land Register.

In any event, the Land Register only covers 48.9% of the land mass of Scotland. The majority of Scotland’s land is still registered in the Register of Sasines. Despite this, a Government official claimed last night that the majority of large-scale holdings are on the Land Register and thus their figure is reliable. In fact the opposite is the case.

I have been researching landownership since 1994 and am currently updating my Who Owns Scotland website and so have analysed a more comprehensive dataset of landholdings that includes those still in the Register of Sasines.

My preliminary analysis is illustrated below where landholdings over 3000ha are coloured blue where they are on the Land Register and red where they are on the Register of Sasines. (this map does NOT include ALL holdings over 3000ha – this is research in progress).


In total the map shows 358 holdings covering 2.86 million ha of Scotland (35.6% of the land mass). Of these, only 30% of the land (covered by 130 landholdings) is on the Land Register with the majority (70%) comprising 228 landholdings still in the Register of Sasines.

So the Scottish Goverment say 386 holdings covering 1,620,000 ha (20.2% of Scotland)

I say 130 holdings covering 872,833ha (10.8% of Scotland) from Land Register

PLUS 228 holdings covering 1,988.939 ha (24.8% of Scotland) from the Register of Sasines

giving a TOTAL of 358 holdings covering 2,861,772 ha (35.6% of Scotland)

(My data remains preliminary and does not include some known large scale holdings. it will be finalised in September.)

Tackling Scale and Concentration

The one substantive policy question I wish to address in this blog is why scale and concentration matters and what to do about it.

As discussed in the consultation paper, it is proposed to define large-scale holdings as those over 3000ha, comprising more than a defined % of an administrative unit (such as a Council ward) or comprising more than a defined % of a permanently inhabited island.

I don’t propose to discuss this definition here but to concentrate instead on the rationale lying behind focussing on large-scale holdings and how this is being defined.

A definition of large-scale being landholdings over 3000ha in extent begs an important question. Is the threshold of 3000ha to apply to a single parcel or to an aggregate of parcels? An aggregate of parcels would arise where, for example, an owner owns five landholdings across the country each of 1000ha thus potentially exceeding the threshold of 3000ha.

In response to my question on this last night, the Scottish Government stated that their proposal is for a single parcel and that an owner who owned 2009ha in Aberdeenshire and 5ha in Lanarkshire would not be covered by the proposals.

The answer was further reinforced by the Chair of the Scottish Land Commission, Andrew Thin who emphasised that their advice was based on local concentrations of power over land.

So as things stand, aggregate ownership is not regarded as large-scale even it exceeds the 3000ha threshold. The Scottish Government takes the view (based on advice from the Scottish Land Commission) that it the key impact of scale and concentration is the potential negative impact that arises from large landholdings in local areas. Where power is concentrated in the hands of one owner over a large area, it can thwart local priorities.

The Scottish Land Commission’s research and subsequent advice was based upon the impact that the concentration of power can have in a local area and in so far as that analysis goes, it is fine.

BUT, consider this.

If Scotland consisted of 100 landholdings of 80,000ha each, that would be a significant issue in terms of scale and concentration.

If Scotland consisted of one million holdings of 8ha each, that would, on the face of it not pose the same issues.

Except that it would if 100 people or entities each owned 10,000 of these 8ha holdings.

The Scottish Land Commission recognises the issues associated with the former but ignores the issues associated with the latter.

And this is where the question of aggregate holdings is important.

This is a live issue with me as I am, on a daily basis, researching and documenting the ownership of land in order to relaunch my Who Owns Scotland website in September. What I am finding (and this is no surprise) is that there are a number of owners who are accumulating landholdings across Scotland, buying more and more land but typically in individuals holdings that fall below the 3000ha threshold.

If (as the Scottish Government states) it wishes to see a more diverse pattern of landownership with more opportunities for citizens and communities to own land (see page 2 of consultation document) then it needs to be just as concerned with the accumulation of landownership and the resulting concentration that arises as it is with the impacts at any particular local level.

If someone already owns 3000ha as an aggregate total of their ownership, then acquiring more will exacerbate the existing inequalities and lead to more concentrated landownership. Yet this phenomenon is absent from both the Scottish Land Commission’s advice and thus the Government’s analysis of the problem.

Over ten years ago I published an analysis of private forest ownership in Scotland (see 5th document on this page). It showed a remarkably concentrated pattern of ownership in this sector and a stark contrast with the rest of Europe (see graph below). Over 44% of private forests in Scotland are over 100ha in size and account for over 94% of the forest area. Across Europe most forests are small-scale and less that 1% are over 100ha in size. Over half of Scotland’s private forests are owned by absentee owners and a third don’t even live in Scotland.


My current research suggests that the situation has got worse (I will publish a final analysis later this year). If it has got worse, then it is because of the rapid accumulation of land by a few individual owners.

Yet, there are no proposals to deal with this.

This blog has been supported by donors to my defamation crowdfunder who kindly donated their eligible refunds to my work on land reform.

Introduction

On Monday 4 July, the Scottish Government published its consultation paper “Land Reform in a Net Zero Nation” (1). The consultation is designed to inform the introduction of a Land Reform Bill by the end of 2023.

I spent last week wandering in the hills around Glen Affric during which time I had plenty opportunity to think about where land reform needs to go now and how the proposals set out in this paper contribute to that process. This blog sets out my relatively high level thoughts. More blogs will follow on more detailed aspects of the proposals.

In short, these are significant proposals which, in principle, would introduce some major changes to how parts of the land market operate in Scotland and deserve serious consideration. It is disappointing, however, that the opportunity has been missed to enact more fundamental change. The proposals appear to be designed merely to introduce more accountability and transparency to the land market rather than enact structural reform.

In that regard, I am currently in the process of drafting a Land for the People Bill – a comprehensive set of proposals to democratise land governance in Scotland. This should be published by the end of August. I am also in the process of investing £8000 in updating and upgrading my whoownsscotland.org.uk website which will also be launched in September (if you want to be informed of its launch, visit the site and send me your details).

So, how to respond to this consultation?

This really depends on your perspective on what you want land reform to achieve. My own long-standing position is that land reform is about redistributing power over land in Scotland, democratising land governance and modernising the framework of law governing landownership and use. Land is about power. How that power is defined, distributed and exercised is the central concern of land reform.

In relation to the legal framework, land reform can be secured through reform,

  • to the tenure system,
  • to the fiscal framework and
  • to administrative law (eg environmental and planning legislation).

For land reform to be successful there needs to be a comprehensive, sustained and coherent programme delivered systematically over a period of years involving all three.

In that context, the proposals set out by the Government, though of some utility, are very partial and are unlikely to achieve significant change in how Scotland’s land is owned and used. After twenty years of devolution and with no shortage of ideas over the past few years on how to reform Scotland’s land, it is disappointing that the proposed Bill is not more ambitious and comprehensive. Here are just four examples of what could have been included

  • reform law of foreshore and seabed (been on agenda since 2003)
  • common good (been on agenda since at least 2005)
  • land taxes (long standing debate)
  • inheritance law (been on agenda since 2009)

The proposals in the paper are based on recommendations made by the Scottish Land Commission and it is worth reading its paper for further background to the proposals. (2)

These recommendations were for large landholdings,

  • to be required to produce a management plan,
  • to be made subject to strengthened duties under the existing Land Rights and Responsibilities Statement and
  • to be subject to a public interest test when large landholdings change hands.

Approached from a different point of view, the proposals can be seen as a set of useful measures that are of some utility. I agree that they will bring benefits. But they will not deliver the outcomes claimed by Government and they do not represent more than a modest intervention in the way land is owned.

As SLC said in its 2021 paper,

It is very important that the proposed legislative mechanisms described in this paper are understood within this broader context, as part of a comprehensive package of land reform interventions

and

The measures will not, on their own, deliver the longer term systemic change in patterns of land ownership that are required to realise the full benefits of Scotland’s land resource. Achieving this will require more fundamental policy reform, probably including changes to the taxation system.

The Proposals

The proposals seek views on the following questions,

  • The definition of large-scale holdings (Part 4)
    (this definition is the used to define those landholdings that will be subject to)
  • Strengthening the Land Rights and Responsibilities Statement (Part 5)
  • requiring compulsory management plans (Part 6)
  • a public interest test when land is transferred (Part 7), and
  • introducing new constraints on what entities can own land (Part 11)

The consultation also proposes,

  • new conditions for those in receipt of public subsidy (Part 8)
  • a new land use tenancy for tenet farmers (Part 9)
  • review of smallholdings legislation (Part 10) and,
  • an invitation to submit other ideas (Part 12).

Commentary on the Proposals

I will be blogging in more detail on these proposals over the coming weeks.

Meanwhile here are some initial thoughts and questions.

Will these reforms deliver?

There are two key issues here.

The first is the focus on tackling the scale and concentration of landownership in Scotland. The Minister states in her introduction that “we are driving forward reform to historically iniquitous patterns of landownership.” On page 6, it is stated that “The first three proposals we put forward are aimed at tackling the issues associated with scale and concentration of land ownership in Scotland.”

However, there is very little in these proposals to suggest that they will much if any have any impact on the scale and concentration of landownership. I will explore this in a future blog.

It is notable that there are no proposals to reform the law of succession (giving children the legal right to inherit land) or to reform land taxation. These are the two measures that have been proven historically to dismantle concentrated patterns of landownership.

The second major focus is on helping to deliver climate policy. Indeed the consultation paper is titled Land Reform in a Net Zero Nation. It is far from clear, however, how any of these proposals will help to secure net zero. The two proposals with the most claims in support are the prior notification to sell and the new land use tenancy.

The prior notification to sell is suggested as a means by which community bodies could be assisted in acquiring large-scale holdings. However there is little evidence that community bodies are interested in acquiring large-scale holdings beyond those which have either been historically badly managed or where there are substantial crofting interests.

Furthermore, the consultation suggests that these proposals could tackle the inflation in land values as a result of carbon speculation and offsetting. But the cost effective way to achieve that is not (as the Government currently wishes) to support carbon markets for offsetting but to ban them altogether. Every ton of carbon sequestered in Scotland and used to offset emissions elsewhere is a ton of carbon that is not contributing to cooling the planet.

Overall, the proposals will probably deliver some much needed accountability, engagement and transparency among large-scale holdings but they will not eliminate the concentrated pattern of landownership in Scotland. As mentioned above, it is measures such as taxation and succession law that will achieve that.

What are large-scale holdings? (Part 4)

The most significant proposals in the consultation are targeted solely at “large-sclae landholdings”. Part 4 of the paper seeks views on how to define this and suggests that meeting any one of the proposed criteria would classify a landholding as large-scale. These criteria are,

  • A fixed threshold of 3,000 hectares
  • 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
  • Land that accounts for more than a specified minimum proportion of a permanently inhabited island.

Key issues are whether the proposals should indeed focussed exclusively on large-scale holdings and whether, if they should, that these are the correct criteria. A question also arises as to the data used to estimate the extent of Scotland covered by holdings of over 3000ha is accurate and I will explore this in a future blog.

Most importantly here is the question of why the proposals are only to apply to large-scale holdings (however they might be defined – do they for example include aggregate holdings across the country which would exceed the threshhold?).

The idea has its origins with the Scottish Land Commission whose advice to Government was that large-scale holdings are the most likely to pose a risk to the public interest by the excessive concentration of power over a large area.

However, the inclusion of criteria b) and c) is an admission that other circumstances can lead to concentrations of power also. Indeed the SLC itself argued that monopoly ownership of strategic infrastructure such as slipways, petrol stations as well as important cultural facilities and housing land supply can also be characteristics of concentrated landownership that could create a structural risk of excessive power. (2).

It is hard to see what objective justification there is for proposing a land reform bill whose key powers are only to be used in relation to large-scale holdings. I will explore this further in a future blog but key questions relate to avoidance (easy to transfer 100ha of a 3099ha holding into another company or trust and circumvent provisions of the Bill) and what benefits to communities or the environment is expected to be delivered.

The focus of the proposals is very much on providing communities with greater opportunities but for many parts of Scotland dominated by large-scale landholdings there are no communities to speak of.

For much of Scotland that is covered by large-scale landholdings, the biggest challenge is the restoration of nature. I was walking in Glen Affric last week (see image b elow) and was delighted to see the extensive work on woodland restoration undertaken by Trees for Life.

If we live in a climate emergency and want land reform to help transition to net-zero then there is a strong argument that environmental bodies should be given new rights and powers as well as community bodies.

There is also a vital question of why existing legislation covering deer management and nature conservation is not being used more vigorously. Again, such questions expose the lack of a clear set of desired outcomes and anticipated timescales for reform.

There is further lack of logic in the proposal to exclude “family farms” (however they may be defined). What’s so special about family farms? And if family farms are to be excluded, why not family forests and family estates?
The image below (apologies for the quality) is of severe environmental degradation on a landholding of less that 3000ha on a family farm. The land is in a National Park and has recently been sold to a Danish company. Why should land which is part of a National Park be excluded from the provisions of the Bill?

Strengthening the Land Rights & Responsibilities Statement (Part 5)

The Land Rights and Responsibilities Statement was introduced by Part 1 of the Land Reform (Scotland) Act 2016 and is an expression of principles to guide land policy but has no statutory force.

My own view has long been that some form of statutory responsibilities should be embedded within the land tenure system (a system which currently bestows only rights to those who own land). The next best solution is give them statutory force and provide remedies for any breaches. The proposals here do the the latter but again only in relation to large-scale landholdings.

This proposal is fairly uncontroversial but could be strengthened further by applying it to all land across Scotland.

Compulsory Land Management Plans (Part 6)

The paper proposes compulsory land management plans for all large-scale landholdings. This is not an unreasonable expectation but as with the Land Rights and Responsibilities Statement proposals, there is no good reason why it should not apply to all landholdings (or certainly far more of Scotland’s land than is encompassed by large-scale landholdings). They should be compulsory for example for all land in National Parks and National Scenic Areas.

Whilst such plans will produce some grater accountability, they (like the Land Rights and Responsibilities Statement proposals) do nothing in and of themselves to tackle the concentrated pattern of landownership. Indeed they risk doing the opposite by (in the words of the consultation paper) allowing landowners to benefit “from being able to demonstrate they are responsible stewards of the land”.

There is nothing revealed about how such management plans will be drawn up where the land is tenanted either by agricultural tenants, crofting tenants or hunting tenants.

Public Interest Test and Notification of Intention to Sell (Part 7)

The proposed public interest test would apply to the acquisition and sale of large-scale landholdings and the purpose is stated as being

to assess whether, at the point of transfer of a large-scale landholding, a risk would arise from the creation or continuation of a situation in which excessive power acts against the public interest.”

Where the test is met, the Government proposes that the sale could only proceed subject to specific conditions reflecting the reason that the sale was not considered to be in the public interest. Two examples are provided. The first is compulsory lotting where no one party could acquire all of the lots and the second is where the land could be offered to constituted community bodies.

The concept of a public interest test is sound but restricting it to large-scale landholdings has little logic. Equally the public interest will inevitably extend far beyond the two conditions provided by way of illustration and could include, for example,

  • the sale of land to environmental bodies
  • the sale of land or property (leased mountaineering huts or tennis courts) to sporting bodies and
  • recreational organisations
  • the sale of land or property to local individuals, businesses and associations
  • the sale of strategic land to local authorities
  • compulsory leasing to such bodies

This proposal is fraught with complexity and is a good example of a measure that is only being proposed because of the existence of concentrated patterns of power. It is an ideological choice to choose to mitigate concentrated power structures rather than eliminate them.

The other proposal covered in Part 7 is the prior notification to community bodies to sell large-scale landholdings. The paper argues that

This proposal responds to concerns that a combination of rapidly rising land values, and a rise in off-market transactions, is in effect excluding communities from access to ownership of large-scale landholdings.”

I am not convinced by these concerns and they are a poor basis for such a major reform. Few communities have expressed any interest in acquiring the kind of large-scale landholdings that have been the focus of recent market activity associated with carbon sequestration (many of which do not exceed anything like the 3000ha threshold). A better approach is to eliminate the market in carbon altogether so as to eliminate this speculative gold rush.

Key to reducing land values is better regulation of the market in general (such as insisting that owners live join their holdings) and, crucially, reform of land taxes. It is ironic that the owner of the largest extent of Scottish land, a Danish businessman, is paying substantial taxes to his home municipality in Denmark and next to none to the local authorities in which his land is situated.

New Conditions on Receipt of Public Funding (Part 8)

Part 8 introduces proposals that, unlike this in Parts 5, 6 and 7, apply to all land in receipt of “land-based-subsidies” and require them to comply with the Land rights and Responsibilities Statement.

The paper is silent on what constitutes such a subsidy and only mentions tree planting and peatland restoration. The largest subsidies of course are provided by means of agricultural subsidies (over £500million per year). All such public subsidies should be within scope of this proposal.

Subsidies are also provided by way of tax breaks such as the Small Business Bonus Scheme which is claimed by some of the wealthiest landowners in Scotland including the North Affric Estate which I walked through last week (owned in the Seychelles) and Cluny Estate in Inverness-shire owned by the Qatari royal family. Such tax breaks should also be encompassed by these proposals.

The proposal also includes a requirement that all recipients of such subsidies be registered and liable to pay tax in the EU or UK (though neither Question 27 nor 28 ask for views on this). This is sensible though it is unclear why the EU is included given the lack of transparency in some EU member states and that fact that the UK is no longer a member state and thus no longer subject to freedom of movement to capital.

Finally, a proposal is floated that all land in receipt of land-based subsidies be registered in the Land Register thus stimulating more rapid completion.

Land Use Tenancy (Part 9)

The paper proposes a new tenancy that would enable tenant farmers to engage in activities such as agroforestry, nature restoration and peatland restoration alongside conventional agricultural activities. This is possible under existing agricultural tenancies but freight with difficulty in many cases. The proposal is to allow existing tenants to convert to a land use tenancy.

This proposal is a sensible modernisation of agricultural tenancies to reflect modern land use priorities. Again, however, if the aim is to redistribute power and tackle concentration of landownership then an absolute right to buy for tenant farmers is what would represent serious land reform.

Small Landholdings (Part 10)

No proposals are presented in Part 10 which is about modernising smallholdings legislation. Consultees are invited merely to be kept informed of a separate small landholding consultation.

Transparency (Part 11)

A sense of deja vu here as the Government finally accepts that land (or at least large-scale landholdings) can only be acquired by legal entities registered for tax purposes in the EU or the UK. It is unclear why the proposed restriction is not simply a requirement to be registered in Scotland or at least the UK when the UK is no longer a member state of the EU.

The paper argues that this could “help deal with instances of absenteeism” but fails to say how this is to be achieved. In fact it will do no such thing unless there is a requirement for those in control of such entities to live on their landholdings or at least in Scotland and be a Scottish taxpayer.

This reference to absenteeism is curious as tackling this could and should be a central plank of land reform. It is hard to justify crofter with a few acres of bog and rock having by late to be resident within a set distance of their holding but owners of tens of thousands of acres can live anywhere they like in the world.

Other land related reforms (Part 12)

Finally, Part 12 asks consulters if they have any views on the future role of taxation to support land reform and about community benefits from natural capital.

Taxation has always been the ghost in the room of land reform. I have hinted above at how significant it is and will blog in more detail about it. The Scottish Government has been extremely reluctant to engage seriously with this question. During the passage of the Non-domestic Rates Bill in 2016-21, for example, opposed (together with the Conservatives) proposals to ensure that all rural land was on the Valuation Roll so that even if it were to be given 100% relief, could at least help to quantify the cost of such relief in relation to all other ratepayers.

Much of the intellectual work in this area has already been done by, for example, the Mirrlees Review and the Land Reform Review Group but Government has neglected it to such an extent that it offers no concrete proposals.

This is an area therefore where consulates should make suggestions (a more detailed blog on this topic will be published soon).

Some Final Thoughts (for now)

This blog is already very long and thus I shall not say much more but conclude on three final reflections.

Firstly, the neglected role of local government must be addressed. Far too much land reform decision making is centralised in Edinburgh when local authorities are perfectly capable of administering the kind of new regulatory functions envisaged by these proposals. As the Scottish Land Commission note in its 2021 Legislative proposals paper, (2)

The potential role of local authorities should also be considered. Running through all three proposed mechanisms is the underlying intention to better connect landownership and decision-making with local democratic accountability. In most northern European countries that have regulatory mechanisms for land ownership, decision-making is generally embedded at a municipality level. Sufficient connection to local authorities, as a means of connecting decisions with local and regional circumstances, should be built into consideration of these measures.”

There is no evidence that they have been. Indeed aside from some contemporary context, local authorities do not feature at all in the proposals.

Secondly, it is very unclear how exactly the proposals are envisaged to actually tackle Scotland’s uniquely concentrated pattern of private landownership. As mentioned previously, proven methods include inheritance land and taxation but neither of these feature as proposals.

As a consequence, the proposals legitimise the existent of large scale landownership whilst only introducing some accountability (a worthy aim) rather than the systematic elimination of concentrated patterns of power over land.

In my 1999 book, Scotland, Land & Power: an agenda for land reform, I wrote that

Land reform is not simply about tactical interventions in the status quo.¨ It involves reform in the way power is derived, distributed, transferred and exercised. It involves meaningful reform of the tenure system, the ownership of land, the market in land, the division of land, the use of land, the fiscal status of land and the occupation of land. And it involves eliminating those characteristics of the current system which serve to perpetuate the status quo, which frustrate the public interest and which are antithetical to a just, fair and open society in a new Scotland. It is thus a highly political venture because in order to promote social, economic and environmental advancement, it needs to challenge and reorganise existing power structures.”

These proposals are a good example of tactical interventions in the status quo.

This blog has been supported by donors to my defamation crowdfunder who kindly donated their eligible refunds to my work on land reform.

NOTES

Details of the consultation can be found here.

(2) See Legislative proposals to address the impact of Scotland’s concentration of landownership. A discussion paper from the Scottish Land Commission, February 2021

 

Thirty years ago, from 3-14 June 1992, countries met in Rio de Janeiro at the ground-breaking Earth Summit. The conference agreed the Rio Declaration on Environment and Development, Agenda 21 and the Forest Principles. The conference also agreed two legally binding treaties, the Convention on Biological Diversity and the Framework Convention on Climate Change. Despite these agreements, progress on securing the future of the planet has fallen way short of the ambitions of those who gathered in 1992.

For example, the majority of global greenhouse gas emissions ever released into the atmosphere have been emitted SINCE the Climate Change Convention was signed in 1992 (see image above) Although rates of deforestation have slowed since 1992, deforestation remains a significant global phenomenon (see image below).

Graph from FAO, State of the Word’s Forests 2020

As part of an international coalition of NGOs concerned with deforestation in the North, Reforesting Scotland published the Scottish Forest Charter (6.6Mb pdf) in association with The Ecologist magazine. We used it to lobby world governments at Rio and to highlight the role played by northern countries in historic (and continuing) deforestation. I was empoloyed by Reforesting Scotland 1990-1993 and continued as its voluntary International co-ordinator for a further two years. Thirty years on, it is instructive to read the Charter and reflect on the extent to which its ten principles have been implemented in Scotland.

Opening pages of the Scottish Forest Charter

We called for expansion of Scotland’s forest cover to deliver primary objectives of protecting soils, water, biodiversity and climate and a series of secondary goals including timber production, recreation and spiritual values. We called for

  • a resource owned and managed by local businesses, communities and individuals
  • that delivered a wide range of local benefits
  • a radical increase in timber production and,
  • effective carbon management and budgets.

Reading through the Charter today, thirty years later it is evident that we remain a long way from realising its ambitions. Deforestation continues even in our National Parks (see below) and forestry expansion remains dominated by external capital encouraged and supported by generous Government grants and tax breaks.

Deforestation and soil erosion in the Loch Lomond and Trossachs National Park on an estate in receipt of Scottish Government agricultural subsidies. Photograph taken March 2019.

With official Government ambitions to increase forest cover in Scotland, it remains deeply concerning that management such as that pictured above continues across vast areas of Scotland and that new forest resources remain dominated by absentee investors and corporations.

If you are interested in how we could achieve the scale of reforestation needed (40% by 2040) as opposed to the current target (25% by 2050), have a read of the Woodland Nation report (3.7Mb pdf) I commissioned and published in 2021. Sub-titled “pathways to a forested Scotland owned by the people” it is the most ambitious programme of land use transformation for people, the climate and the economy ever published. I will be blogging more on this in future.

Meanwhile I hope you enoy reading the Scottish Forest Charter.

Today marks an important moment in the struggle to reclaim rights for the people over common land.

In May 2005, I discovered an extant commonty in the Parish of Carluke (pictured red above). Commonties are ancient areas of common land, often very extensive, that provided residents of the parish with fuel, building materials, food, and a place to bleach linen, conduct meetings and undertake the distillation of exotic drink. Unlike in England where the commons were enclosed by individual Acts of Parliament, in Scotland an Act of 1695 created a simple judicial process that facilitated the division and privatisation of millions of acres of common land.

The Division of Communities Act 1695 remains on the statute book (when I invited the Scottish Government to consider repealing it, I was told that it remained of value for farmers and landowners – so much for land reform).

Over the next seven years, I and others undertook extensive research on the history of the common and concluded that there was indeed no owner and that it was an undivided common. Unfortunately, land reform has yet to create a statutory process for reclaiming such areas of land for the common good and thus we had to work out how to bring the land into community ownership.

We settled on the process of registering an a non domino title, one where the grantee was by their own admission not the owner of the land. This is a clever trick used by the landed class down the centuries. It felt curious to be using such a procedure but we proceeded anyway. It took some time for the Keeper of the Registers of Scotland to accept the deed. Various parties had to be consulted including the Queen’s and Lords Treasurer’s and Remembrancer. Eventually on 23 May 2012, the Keeper registered the title in the Land Register as LAN212232.

But that was not the end of the matter since the title remained open to challenge for ten years under Section 1 of the Prescription and Limitation (Scotland) Act 1973 after which, should no challenge be forthcoming, the title would be beyond challenge.

Thus today marks the 10th anniversary of the registration and Carluke Development Trust are the full and indisputable owners of the former parish common.

My blog of 16 January 2014 contains further details and today I am pleased to be able to finally publish the report that I wrote for Carluke Development Trust. Until now it has been deemed inadvisable to draw attention to some of the historical research for fear of alerting a possible claimant. Today that fear disappears and provides, I think, cause for some modest celebration.

Dear Oscar Nominee,

Congratulations on your nomination for an Academy Awards 2022. According to media reports, I understand that as a nominee you have received a gift pack that contains, among other things, a purported gift of a plot of land (perhaps just a square foot) in Scotland from a company called Highland Titles and the right to be styled Lord or Lady of Glencoe.

You may be wondering what this is all about. Let me explain.

First and foremost, you are not the owner of any land in Scotland despite what this company might have led you to believe. See Section 22 of the Land Registration (Scotland) Act 2012. (1)

You have also not been given any right to style yourself Lord or Lady of Glencoe. Highland Titles has no authority or power to bestow such a title on you.

You have a piece of paper (several probably) with impressive sounding claims and illustrations. They remain just pieces of paper, however and provide you with nothing more than that.

Highland Titles Ltd. is not a conservation organisation. It owns some land including part of a National Nature Reserve and it plants some trees and puts up some bird boxes. The company’s purpose, however, is to enrich those involved with it. Highland Titles put up in excess of £100,000 for a company it then supported (Wildcat Haven Enterprises CIC) to sue me for defamation claiming £750,000 in damages. I won and in the process learnt quite a bit about Highland Titles business model. Believe me, they appear to be making very substantial sums of money and spending very little of it on any meaningful conservation work.

The plot you purportedly own is not in Glencoe. It is 20 miles away in Duror.

Highland Titles Ltd. is not a Scottish conservation organisation. It is a company based in the secrecy jurisdiction of Guernsey.

The office of Highland Titles in Scotland is located in Lochaber and is part of a larger property owned by Quexus Ltd. a company registered in the British Virgin Islands.

Highland Titles was a registered trademark to another company called Highland Titles Ltd registered in the British Virgin Islands but transferred in 2019 to Highland Titles Ltd. (Guernsey)

Beware that “Lord of Glencoe” and “Lady of Glencoe” were registered trademarks to a company called Highland Titles Ltd. registered in the British Virgin Islands but transferred in 2020 to Highland Titles OU registered in Estonia.

Highland Titles Ltd., being registered in a secrecy jurisdiction and despite owning land in Scotland is not obliged to publish annual reports or accounts and thus its affairs cannot be scrutinised or challenged.

You can read some more about Highland Titles in a blog I published in 2015 (2)

If you wish to help the conservation of Scottish habitats and species there are a range of organisations that would welcome support. The vast majority of them are members of Scottish Environment Link and you can see them all here.

(1) https://www.legislation.gov.uk/asp/2012/5/section/22/enacted
(2) http://www.andywightman.com/archives/4152

4500 words – 30 minute read

Introduction

I never intended to write further about my resignation from the Scottish Green Party. When I resigned, I agreed with the Party not to say anything further.

However, I am now aware that there has been some significant misinformation circulated by members and officials of the Party alleging to explain why I resigned.

I have seen emails, Slack channel communications, information from protected Twitter accounts and the Party’s Q&A following my resignation They make wild allegations about my motivations and character. Some of the claims being made are now being circulated and are having a negative impact on my reputation at a time when I am seeking work. I therefore wish to set the record straight.

When I resigned, I reached an agreement with the Party that neither I nor spokespeople for the Party would say anything more (individual members of course are not so constrained). I kept my side of this agreement but others did not.

Immediately prior to my resignation, Patrick Harvie wrote to me saying that my resignation would be a “huge loss to the Party and to Parliament”. Weeks later he was on national TV denouncing me as a transphobe. I managed to prevent that interview from being broadcast but later, during the election campaign, further interviews were given in which false allegations were made about me – a potential criminal offence during an election campaign.

In publishing this blog, it is not my intention to start an argument or to provoke debate. People are perfectly free to disagree with my reasons for leaving but they are not entitled to fabricate them and disseminate lies and smears.

So this blog is for Scottish Green Party members and anyone else who wants to know more. Put simply, I resigned because I couldn’t work in the environment in which I found myself.

So what was it that led me to leave? Some background may be useful.

Background

I have always been a member of the Green movement. At University and afterwards, I was an active campaigner against the modern forestry industry and tied this to arguments for greater local and community control of natural resources. I resisted the afforestation of Caithness and Sutherland and was blacklisted from working in my chosen profession, as a consequence. I worked with Scottish civil society to expose the hypocrisy of northern governments at the Rio Earth Summit, whose records on deforestation were worse than the southern governments they were enthusiastically criticising.

I attended the Commission on Sustainable Development In New York with Bill Ritchie from the Assynt Crofters’ Trust where we briefed Governments on the UK and Scottish Office failures on sustainable development and embarrassed a senior UK civil servant in the plenary session by asking why the UK Government was supporting land reform in east Asia whilst resisting it in Scotland.

I was a co-founder of the Taiga Rescue Network comprising NGOs from across the boreal region to protect northern forests. Since the mid-1990s I have worked on a wide range of projects, initiatives and campaigns that focussed increasingly on environmental justice and land rights.

I argued in my first book, Who Owns Scotland, that Scotland needed a domestic legislature to address properly environmental and land questions that had been neglected for decades. I had productive meetings with newly elected Scottish MSPs and political parties and gave written and oral evidence to Committees.

By 2009, I decided that it was time to nail my political views to the mast and I joined the Scottish Green Party in October 2009. My second book, The Poor Had No Lawyers, increased my profile, and seven years after joining the Party I was selected as number 2 on the Lothian Regional List and was elected to the Scottish Parliament.

I have always been clear that the job of an MSP is threefold: to represent constituents on matters within the devolved competence of the Parliament, to hold the Scottish Government to account for their decisions, and to scrutinise legislation and make laws for the people of Scotland. MSPs are representatives of the people, not delegates of political parties.

During all of my working life I have sought to treat political opponents with respect, not least because a determined effort to understand an opposing point of view helps clarify one’s own viewpoint. Plus, life is more agreeable for all when we can disagree well.

Despite some heated debates at Scottish Green Party conferences and the occasional personality clash, I found the Scottish Greens to be collegiate and supportive and I made many friends. However, the mood changed for me from Autumn conference 2017.

Scottish Green Party Conference Autumn 2017

A motion was debated at the 2017 Autumn conference which was designed to deal with what the proposers argued were two “muddled, contradictory and unclear” policies on prostitution and the sex industry. The proposers of the motion highlighted the contradictions in the two policies and sought the agreement of conference for a review of them both with a view to developing a “revised and consistent policy” which was “consistent with SGP principles and policies that set to challenge patriarchy and inequality”.

The motion was moved and supported by young women and by a number of longer-standing women activists, some of whom I had known for many years before my involvement in Green politics. The debate, however, was rushed at the end of conference and the debate, such as it was, was characterised by hostile and aggressive interventions, delaying tactics and procedural technicalities. At the point of voting, I put my hand up to support the motion but was not so subtly told by a Party activist sitting behind me that I should be voting against. I continued to support the motion but it was defeated.

Afterwards, the young women who had proposed it were in tears at the hostile tone of the debate and for the first time I wondered about the culture within the Party. In the aftermath of this vote, a number of prominent female members left the Party, with one citing self-serving cliques and groupthink that were hampering open and free debate.

2018-2019

In the latter part of 2018 and into 2019, public debate emerged about reforms of the Gender Recognition Act (GRA) and rapidly developed into wider debates about sex, gender, identity and public policy more generally. As part of my role as an MSP I met with a range of individuals and organisations to discuss these matters. In April 2019, I co-hosted a meeting in Parliament organised by Scottish Trans Alliance, Stonewall Scotland, LGBT Youth Scotland and Amnesty International Scotland, called “Being trans in 2019”.

But I began to wonder where this debate was going following a heated exchange on STV Scotland Tonight on 23 May 2019 where Maggie Chapman, the SGP co-convenor, claimed that sex was not binary. Technically this is true (it is bimodal), but there are only two sexes.[1550 10 Aug 2021 EDIT – what I mean here is that the distribution of primary and secondary sex characterisistcs is bimodal. Sex is binary (there are only two).] If there are more (as Chapman implied) then Section 11 of the Equality Act 2010 would need to be amended. There may be many genders, of course, but I was genuinely perplexed as to why the Party’s then co-convenor thought it advisable to try and advance such an argument in relation to sex on national television.

June 2019

In June 2019, I attended a meeting at the University of Edinburgh called “Women’s Sex-Based Rights: what does (and should) the future hold?”. It was organised by the University of Edinburgh, and a number of MSPs and Scottish Green Party members were in attendance. I was unaware that there was any controversy around the event but became aware that the University Pride Network had concerns. Afterwards, as one of the speakers was leaving, she was subject to an attempted assault and the next day I Tweeted to condemn this and to express my hope that the speaker was fine.

The ensuing publicity that I had attended this meeting prompted a great deal of online comment and personal abuse. Patrick Harvie asked me to apologise for having attended the meeting, telling me that I needed to eat some humble pie. I refused to do so but did issue a statement apologising for any offence caused to Party members who thought I should not have attended.

On the other hand, many people supported my attendance, commenting that it was exactly what MSPs should be doing. These included the co-chair of the University Pride Network whose opposition to the event had been cited by my detractors. The entire Pride Committee was reported to have resigned in protest at the meeting, but in fact they resigned in response to a request from the University to remove content from an online petition that (in the University’s view) exposed the University to legal action for defamation. The co-chair is a transwoman and had herself attended the meeting. She wrote to me afterwards to say that my “support is most appreciated” and that “your presence at the meeting made sense to me”. The organiser of the meeting herself was a member of the UoE Pride Network. She had endured a hellish few weeks with personal threats, smears and defamatory allegations made against her.

Very soon afterwards, some Party members submitted complaints through the internal Party system. I tried to respond to them as best I could, but was never informed as to what exactly the complaints were and what it was I was alleged to have done beyond some generic references to the Code of Conduct and to a transpositivity statement (of which more later). In the wake of my resignation, one of the complainers, Eilidh Martin, complained that swifter action had not been taken against me.

I was shaken by these events and disappointed at the smears and allegations levelled against me, mostly in private, but some in public, by Party members. I began to wonder whether I could continue to be a member.

This event was swiftly followed by a Parliamentary motion in the name of Jenny Marra MSP lodged 2 days later which stated:-

“That the Parliament notes that a well-attended discussion on women’s sex-based rights, with a range of invited speakers, took place at the University of Edinburgh on 5 June 2019; believes that universities should be safe places for complex and sometimes controversial discussions to take place; and strongly believes that there is no place for violence or threats of violence towards women engaging in public life in Scotland.”

Patrick Harvie asked Green MSPs not to sign the motion and a bad-tempered meeting of Green MSPs attempted to discuss the matter. I signed this motion as I support free speech, the right of Universities to hold meetings to discuss complex and controversial matters, and obviously believe that there is no place for threats of violence against women.

Further complaints inevitably followed.

Scottish Green Party Autumn Conference 2019

The Party’s Autumn conference was held in Inverness in October 2019. The results of selections for the Holyrood election were made public and I was pleased to be selected again as number 2 on the Lothian List with 133 first votes, second to Alison Johnstone with 191 and with the Party’s co-leader, Lorna Slater in 3rd place with 36. (Lorna was then to take my place after I resigned.)

One of the motions brought to conference was titled “Inclusive debate within the Scottish Green Party”. The motion noted the “increasingly toxic, aggressive and intimidatory nature of political debate in society and the departure of a number of longstanding women activists”. It stated that “it is a matter of concern that some members have reported feeling inhibited from expressing their views publicly at some recent SGP conferences and events” and that the “General Meeting also notes with concern the number of committed feminist activists who have left the Party in recent years.” The motion went on to recommend the establishment of a working group on ensuring open, inclusive and egalitarian practices. When the motion was called, no one came forward to propose and speak to it. It therefore fell without being debated.

The reaction of many of the delegates was to whoop and cheer. I was sitting near the front and turned round with a quizzical expression on my face to try and understand why. A number of those who had been and would become my detractors noted that I was not joining in the celebration and later I overheard someone asking what the motion was all about. The response to this person was to label the women referred to in the motion as transphobes, even though as far as I was aware these women were those who had resigned in the wake of the vote on the sex industry and prostitution debate (nothing to do with trans rights or the trans debate).

Earlier that same day, the Party had just adopted a new Code of Conduct which committed members to be inclusive, considerate, respectful, understand that diversity gives us strength, forgive mistakes, maintain political discipline and help each other be better.

I now realised that elements of the culture within the Party were in direct violation of these values.

January 2020

Given my experience of attending a meeting in June 2019, one might expect that any Green MSP attending any such meeting again would be subject to a similar reaction from Party members.

On 14 January 2020, Patrick Harvie attended a meeting in the Scottish Parliament at which the Declaration of Women’s sex-based rights was launched. The meeting was criticised in advance by the Equality Network as being “anti-trans”.

In a conversation with a senior Party member, I asked why Patrick had attended given the criticism levelled at me and why no apology had been forthcoming, I was told that Patrick was clearly not anti-trans. When I said that neither was I and that the criticism was that I had attended such a meeting not that I was anti-trans, I was told that this was different. When I asked what was different, I was told that this was a meeting in Parliament and not a public meeting. When I asked what difference that would make to Party members who were so critical of my attendance at such a meeting, I was told that Patrick was doing his job. When I said that I was doing my job too, the conversation stopped.

By this time, it was clear me that the public debate was now embracing more than the proposed reforms of the Gender Recognition Act (GRA). The meanings of the words “sex” and “gender”, the  theory of gender identity (as opposed to gender dysphoria) and public policy around these were increasingly at the forefront of the GRA debate. Language and the meaning of words were at the heart of the debate.

I support reform of the GRA to become more person-centred but do not believe that it is necessary to change long-established concepts or scientific fact or meanings of words to achieve this. Far less do I believe that is necessary or relevant to have to embrace queer theory in order to support the advancement of trans rights.

Then the pandemic happened.

The Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

One of the problems with bringing to justice those responsible for sexual assault is that victims are reluctant to complain in time for forensic evidence to be gathered. Even when forensic evidence had been gathered in a health setting, there were problems with admissibility in court. The Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill sought to put the good practice that had been established between Police Scotland and NHS Scotland on a statutory footing and place a duty on health boards to provide forensic medical services and to enable such evidence to be held until such time as a complaint might be made to the police and criminal investigations commenced.

Of necessity, the Bill amended parts of the Victims and Witnesses (Scotland) Act 2014. Section 8 of that Act implemented EU Directive 2012/29 of 25 October 2012, which established minimum standards on the rights, support for, and protections of, victims of crime, and gave a statutory right to victims of sexual violence to specify the sex of the interviewer. The 2014 Act went further than this in Section 9, which gave the right to request that any forensic examination be conducted by a person of the same sex as the victim. Section 8 of the 2014 Act implements this Directive in Scots law but uses the term gender instead of sex (as does Section 9).

In its Stage 1 report on the 2020 Bill, the Health and Sport Committee recommended that the words “gender” and “sex” have different meanings and that the 2014 Act should be amended to replace the word “gender” with “sex”.

In the Stage 3 debate on the Bill, Johann Lamont MSP proposed an amendment that would do just that.

This was to prove controversial.

In law, the use of the words “gender” or “sex” in the context of Sections 8 & 9 of the 2014 Act makes little difference, as the intention of the legislation is clear from the context and from the EU directive.

However, the word “gender” is now being used in a much greater variety of ways and has a number of meanings. Whilst changing the words used in Section 9 may not have many practical consequences, it seemed to me that this was, on balance, a justifiable amendment given the language in the EU Directive and the recommendation of the Committee.

Furthermore, I was in receipt of significant correspondence from constituents who had been victims of sexual violence asking me to support the amendment. I initially responded saying that I was not convinced that changing the language would be meaningful. However, in the 48 hours leading up to the vote I had undertaken further research and now felt that on balance there was a good case for supporting it and advised the Group that I was minded to support it and that legislation dealing with matters of the utmost sensitivity relating to (mainly) female victims of sexual assault would not be conflated with other debates about trans rights.

The replies I received were interesting. Voting yes to the amendment would be “best described as biological essentialist” and that this was in “direct opposition to gender recognition and therefore incompatible with trans people’s human rights”. This is of course nonsense. Sex is the protected characteristic that categorises women and men. Using accurate language has nothing to do with trans people’s human rights.

SGP MSP Meeting

An urgent meeting was called for, on Thursday. This was online, and was attended by all SGP MSPs except Alison Johnstone who was on long-term leave for health reasons. She was the Party’s spokesperson on health, and the Party’s member of the Health and Sport Committee. Apart from one MSP who was initially relaxed about my voting yes, the 3 others were implacably opposed. They advised me in very stark terms that voting yes to the amendment would lead to complaints from within the Party and action against me, up to and including deselection and suspension.

One SGP MSP colleague advised me that it would be in direct contravention of a transpositivity motion passed at the AGM of the Spring 2018 conference and it was trans-exclusive to vote yes to the amendment. They told me that “the Party will absolutely take action against anyone who votes for the amendment” because the Party takes an unequivocal stance on trans rights as voted by conference. It’s perhaps worth saying something about this trasnspositivity motion.

The transpositivity motion was debated at the AGM of the Party in Spring 2018. It was passed under AOB at an AGM attended by “in excess of 90 members” according to the Minutes. It was later to be cited as evidence that I was minded to vote against Party policy. But AGM motions are not Party policy. Party policy is made on the conference floor and documented in the Policy Reference Document. The motion was only presented to members attending the AGM early on a Sunday morning. There was no advance notice in order to allow amendments to be proposed and the motion itself says nothing about when it is appropriate to use the word “sex” and the word “gender”. If using the word “sex” in legislation is to be deemed trans-exclusive then the word needs to be excised from all legislation including the Equality Act (a move I would not support).

It was later argued by some of my critics within the Party that the transpositivity motion was part of the code of conduct, but a new code of conduct passed in Autumn 2019 did not incorporate the 2018 motion. Indeed, at the time of my resignation many members made clear that they had never heard of it and it transpired that the Party had never published it.

The tone and content of this Group meeting left me deeply distressed. The clear view of the majority of the group was that dire consequences would follow if I voted yes.

I discussed the matter further during the afternoon and decided that I would in the end vote against Johann Lamont’s motion, as I was clear from the SGP MSPs’ Group meeting that were I to vote for it, then I would have to resign immediately, and I was unclear at that stage of the consequences for myself and particularly for my staff.

On reflection that evening I decided to resign from the Party for the simple reason that I could not work in an environment with such a censorious, bullying and intimidatory culture and where I was expected to agree that scientific facts such as sex are to be sidelined. This position has never been debated and agreed by Conference but appears to be an implicit consequence of the Party’s stance on trans rights.

Aftermath

I resigned the following Friday (resignation letter here). Party members whom I had regarded as good colleagues immediately denounced me as a transphobe, accusing me of wanting to participate in a moral panic about transpeople. One Edinburgh Councillor thanked me for all that I had done but, on learning of the circumstances of my resignation, recalled the message and said I was disgusting.

The Party immediately embarked upon a damage limitation exercise. A Q&A document purporting to set out why I had resigned was distributed to members and discussions took place on online platforms, most of which I believe I have now seen and have copies of.

A number of Party members, including office-bearers, were suspended for expressing views in support of me. A proposal was made to Party Council for an independent investigation into my resignation but was defeated 33-4. Senior Party officials told members that I had deliberately set out to cause as much damage to SGP as I could when in fact precisely the opposite was the case.

Three accusations have been frequently levelled against me by the leadership and other senior officials.

The first is that I had taken the view that the vote on the amendment was a vote of conscience. I never took this view and never argued that it was. The vote was on which word to use in a section of a Bill. Asserting that I might have thought this was a vote of conscience is untrue.

The second is that I was uncomfortable with Party policy and that steps had been taken to ensure I was comfortable explaining and defending the Party’s policy on transgender rights. I was never uncomfortable with Party policy and it is patronising to tell members that many in the Party had reached out to me and that I had not engaged. In fact, I would contend that I was unusually well informed about trans rights, being a legislator who aimed always to research diligently both proposed legislation and its context, and having engaged with a wide variety of constituents on this matter. The problem all along was a cultural one and an expectation by key influencers in the Scottish Green Party that being supportive of GRA reform was not sufficient evidence of one’s support of trans rights – one also had to subscribe to tenets of queer theory which were and are not Party policy.

The third was the accusation expressed frequently by Patrick Harvie in media interviews that I was opposed to Party policy and had never taken any opportunity to bring forward amendments or debates at Party conference. This was a key argument at Party Council on 6 May 2021 against any independent investigation. To re-iterate, the Scottish Green Party does not have any policy on the use of the words “sex” and “gender” in legislation. Plenty of members have views and express them vigorously and I have never taken issue with their right to do so. But the idea that voting for the amendment was in violation of the transpositivity motion or Party policy is based on a particular interpretation and a set of implicit ideas that have never been set out nor debated nor become Party policy.

The Q&A for Party members and other public statements are insistent that my fault was to have wanted to vote against Party policy on trans rights. This has never been the case. What has been the case is that the Green Group of MSPs insisted that this vote on an amendment to a Bill concerning victims of sexual assault should be viewed through the lens of trans rights and queer theory, and that there was a hostile and bullying culture within the Party.

I have never understood why one has to subscribe to queer theory and gender identity theory in order to improve the lives of trans people. But that’s the bar that has been set in the SGP.

To conclude, I resigned because I could no longer work in such an environment. That others can and do is fine and I am not seeking a debate as to whether I was right or wrong. But for me, I need an environment that is more tolerant, more questioning, more critical, more empathetic, and more willing to listen.

This blog is far longer than I intended it to be but I am not prepared to let misrepresentation and falsehoods gather any more credibility.

I have an audio recording of the SGP MSP meeting of 10 December 2020 and will not hesitate to publicise a transcript if the Party and its office-bearers persist in spreading lies and misinformation about me, my views and my motives.

Only one person knows why I resigned and that is me.

This blog attempts to explain why.

The Report of the Committee on the Scottish Government Handling of Harassment Complaints has been published and can be downloaded here.

PREAMBLE

In early December 2019, I joined the Committee as a substitute when my colleague, Alison Johnstone MSP had to leave the Committee for health reasons. Later in December I resigned from the Scottish Green Party and have sat as an Independent MSP.

I have undertaken my Committee work with impartiality and have worked hard to discharge the duties placed upon the Committee by Parliament, namely to conduct an Inquiry with a remit:-

to consider and report on the actions of the First Minister, Scottish Government officials and special advisers in dealing with complaints about Alex Salmond, former First Minister, considered under the Scottish Government’s “Handling of harassment complaints involving current or former ministers” procedure and actions in relation to the Scottish Ministerial Code

The Inquiry was in four phases – development of the harassment complaints procedure, handling of complaints, the Judicial Review and actions of the First Minister in relation to the Ministerial Code.

This has been a difficult inquiry into a series of high profile and sensitive issues of sexual harassment in the workplace and involving Scotland’s two most recent First Ministers.

The Inquiry has been carried out in an increasingly fractious and toxic political environment where claim and counter-claim have become weaponised in an ugly debate on social media and more widely.

The Committee has, in the circumstances, in the face of serious impediments to its work and in a very tight final timescale managed to produce a report which will, I hope, lead to a far better response to the serious mater of sexual harassment in the workplace.

FINDINGS

This whole sorry tale arises because the former First Minister, Mr Salmond behaved inappropriately towards female civil servants.

There was an organisational culture of inappropriate behaviour by Mr Salmond and complicity across a number of fronts in terms of people not challenging that behaviour.

The Scottish Government failed in its duty of care towards civil servants, in particular, some female civil servants during the period when Mr Salmond was First Minister. Safeguarding appears to have been wholly absent.

Very senior civil servants and Special Advisers knew about this and did nothing. Instead, they were complicit in covering up such behaviour.

The First Minister instructed a review of sexual harassment complaints in October 2017 and is to be commended for doing so. The new procedure included provision for retrospective complaints against former Ministers and it was right to do so.

Two complainers came forward with formal complaints and were right to do so. They trusted the procedure to deliver a just outcome for their complaints.

The procedure was developed in a short space of time with insufficient stress testing. The Permanent Secretary led the work and went on to have the key decision making role in the procedure as well as a number of contacts with the complainers.

The Scottish Government failed to identify the issue of prior contact by the Investigating Officer as a potential procedural failing never mind the subject of a potential legal challenge.

The Scottish Government breached their duty of care to the complainers by not ensuring the confidentiality of the final decision report which was leaked to the Daily Record newspaper in a shocking violation of the complainers rights to privacy. No-one has been held accountable.

In response to the Judicial Review, the Scottish Government failed in its duty of candour to the court in not identifying and disclosing key evidence from the Investigation Officer until so late in the process that the case become unstateable and had to be conceded.

At an early stage the Scottish Government was responsible for a serious, substantial and entirely avoidable situation that should never have arisen in a well run organisation.

In responding to this inquiry, the Scottish Government frustrated the inquiry by its failure to provide timeous documentary evidence and refusing to disclose legal advice and waive legal privilege until 6pm on the day before the appearance of there First Minister.

As the First Minister recused herself from Scottish Government dealings with the Committee, this failing is the responsibility of the Deputy First Minister, John Swinney.

In relation to the First Ministers actions in relation to the Ministerial Code, she has been cleared of any breaches by James Hamilton QC and the Committee never sought to make any determinations as to such breaches.

The Committee, however finds it hard to believe that the First Minister knew of no concerns about inappropriate behaviour by Mr Salmond prior to November 2017. Awareness of his behaviour was an open secret in Government and was known about at the highest levels of the civil service. The First Minister did not hear of any concerns because the truth was being intentionally concealed from her.

All senior members of Government including the then deputy First Minister have a duty to ensure the welfare of staff and to ensure no-one is allowed to behave with impunity. That means asking discrete but awkward questions at the right time.

Fundamental errors were made by a number of parties throughout the whole process from October 2017.

The First Minister misled the Committee by stating in her written evidence that she would not seek to intervene in the process. On the contrary she did offer to intervene. In the event, of course, she did not in fact intervene and that was the right decision.

The First Minister bears some responsibility for failing two women and many others who did not come forward. Mr Salmond and Mr Salmond alone, however, is responsible for his inappropriate behaviour.

As Head of Government, the First Minister responded appropriately in the wake of #metoo albeit long after senior members of ScotGov knew of Mr Salmond’s harassment of civil servants.

The First Minister should be perfectly capable of accepting the conclusions of the Committee’s report and committing to work with others to develop a robust and fair system for dealing with complaints that can be trusted by staff in the workplace.

Some MSPs and their parties should reflect on the extent to which they weaponised for political advantage an inquiry into how two women were failed over serious complaints.

Some MSPs and other in party machines should reflect on their role in breaching the MSP Code of Conduct, leaking confidential material and betraying the trust of the two women whose testimony to the Committee in private was meant to stay private.

It is time to work together to eliminate sexual harassment and sexual violence against women and men.