Cui Bono? Who Leaked the Harassment Committee’s Conclusions?

17. March 2023 · 23 comments · Categories: Democracy, Governance, Legal affairs, Politics

TWO YEARS AGO

Two years ago, on 18 March 2021, the Committee on the Scottish Government Handling of Harassment Complaints (the Committee) met for the final time and signed off its Final Report which was published on 23 March 2021.

The day is infamous due to the leaking of some of the Committee’s conclusions before it had even completed its deliberations. At 18:58, James Mathews from Sky News reported the Committee’s conclusions in a tweet and live on air.

Later that evening, the First Minister, Nicola Sturgeon, who was one of those whose actions were under investigation, accused me and my opposition colleagues of having made our minds up before she gave evidence and claimed that we were responsible for the leak.

“What’s been clear is that opposition members of this committee made their minds up about me before I muttered a single word of evidence. Their public comments have made that clear. So this leak from the committee – very partisan leak – tonight before they’ve finalised the report is not that surprising.”

The next day, three of the four SNP members of the Committee (Alasdair Allan, Maureen Watt and Stuart McMillan) issued a media statement accusing me and my opposition colleagues of having ”railroaded though their prejudiced assertions based purely on political considerations,” and alleging that, “for the opposition, this was never about the truth. It was never about the evidence and, shamefully, it was never even about the women. All of these are being sacrificed in pursuit of political ends.”

I remain hurt and angry at having these false allegations made against me but chose to let matters rest at the time. Clearly the First Minister and her colleagues were determined to pin the blame for the leak on us and it was futile to engage in an ongoing war of words over the matter.

This blog seeks to determine who was responsible for the leaking of this information.

I am certain of the following:

I do not know how the Committee’s conclusions found their way into the hands of Sky News;
I know that I was not responsible;
I am confident that no member of the Committee leaked the conclusions directly to James Matthews.

CUI BONO?

In this blog, I ask cui bono? Who benefits?

This famous principle suggests that the party most likely to benefit from the leak is probably responsible for it.

What follows is first of all a report of the complaints made to the Ethical Standards Commissioner in the aftermath of the Committee’s work, then a chronology of the events leading up to the leak, and finally an analysis of who stood to gain from the leak.

COMPLAINTS

In October 2021, I received a letter from the Ethical Standards Commissioner containing over 50 complaints from individuals that I and other colleagues had breached the MSP Code of Conduct in two ways. The first (Category D complaints) was that I had openly discussed information in the public domain that was confidential to the Committee. The second (Category E complaints) was that I had leaked information (directly or indirectly) to the media that was confidential to the Committee. These latter complaints related to the 18 March leak to Sky News. None of the complainers to my knowledge claimed to have any evidence of any of the complaints that they were making.

The Commissioner used his statutory powers to require that all texts, emails and other information relating to any contact with named media outlets be handed over to him.

In May 2022, the Commissioner wrote to me to say that he had dismissed as inadmissible all of the Category D complaints.

On 6 September 2022, the Commissioner wrote to me to advise that he had concluded his investigation and had dismissed all of the Category E complaints that I had leaked confidential information to the media. Having assessed all interactions between Committee members and the media and related parties, he found no evidence to support the complaints.

However, he went on to say that he had sought legal advice on the possibility of obtaining information on the source of the leak from political parties and media outlets but that there were no reasonable prospects of success were he able to pursue such a course of action. This is not surprising in relation to the media where the protection of sources is a well established principle. But it is an intriguing claim in relation to political parties, given the powers in Section 13 of the Act which allow the Commissioner to compel the production of evidence from almost any person. Failure to do so is a criminal offence (Section 15 of the Act).

In any event, this particular investigation was over – as was another one initiated by myself.

I had long felt that the statement issued by the three SNP MSPs was defamatory and in breach of the MSP Code of Conduct (see end of this blog for full text of their statement). In particular the Code makes clear that MSPs must not provide the media with any comments on Committee reports until they are published.

I did not have the energy nor the presence of mind at the time to make a complaint. I was furious at them for their slurs but wanted to leave the whole sorry saga behind me. But on the first anniversary of the leak, I felt it was time to hold them to account for what I considered to have been a flagrant breach of the Code of Conduct and so on 20 March 2022, I made my own complaint to the Commissioner about their actions.

On the same day that complaints against me were dismissed (22 September 2022), the Commissioner wrote to me to rule that he had dismissed my own complaint against the three SNP MSPs. He did so on the basis that because the conclusions of the Committee were in the public domain as a result of the Sky News report, they could no longer be considered confidential and so were not covered by the confidentiality provisions of the Code of Conduct.

CHRONOLOGY OF EVENTS LEADING UP TO THE LEAK

WEDNESDAY 17 MARCH 2021

The Committee’s inquiry was broken down into four strands of work, namely

The development of the (harassment complaints) procedure
How the complaints were handled
The judicial review of the process
The Scottish Ministerial Code

The Committee agreed early on to present conclusions on all four of these strands.

Over many meetings in February and March 2021, the Committee considered drafts of the Final Report. By 17 March 2021, we had not yet agreed the section of the report on the Ministerial Code. We had agreed that we would not come to any conclusions on whether the First Minister had breached the Ministerial Code. This was the subject of a separate investigation by the Independent Advisor on the Ministerial Code, Mr James Hamilton. However as the Committee’s report makes clear:

653. Mr Hamilton will gather his own evidence and reach his own conclusions in his own report. He will do so independently of this Committee and he is not obliged to take into account any conclusions we reach. Nor do we think it would be appropriate for us to seek to direct Mr Hamilton’s work or influence his own conclusions.

654. However, it remains the case that the Ministerial Code is also in our remit. We have conducted our own evidence taking on this subject. We consider it important that we report to the Parliament on the Ministerial Code in order to fulfil our remit.

By 17 March 2021, we still had no draft conclusions on the Ministerial Code strand.

At 09:53 on the Wednesday, the Clerk sent an email to Committee members with an attachment containing some suggested amendments from three members of the Committee. None were drafted in the form of actual text that could be added to the report but were instead arguments about why we should say one thing or another.

Later that evening, a final draft report for discussion the next day was circulated. I was of the view that the Ministerial Code conclusions were weak. Clerks clearly felt reluctant to go too far in their suggested text as this was undoubtedly the most politically sensitive part of the report’s conclusions.

And so I began drafting some conclusions on the Ministerial Code together with some wider reflections. I sent these to the Clerk at 22:14 that evening and they were circulated the next morning to Committee members at 08:12.

THURSDAY 18 MARCH 2021

On 18 March 2021, the Committee met for the last time to debate and agree its Report. It met from 09:00 – 12:16, 13:38 – 14:30 and 18:29 – 19:35. All meetings were held virtually.

My proposed text came up for discussion shortly after 14:00 and was the subject of some heated debate, with SNP members very unhappy with the draft but having proposed no alternative texts of their own. I offered to take the text away and redraft it to take account of views that had been expressed. I sent a final draft with some modest amendments to the Clerks and it was circulated to MSPs at 16:31.

We reconvened again at 18:29. We had the Ministerial Code, Overall Conclusions and Wider Reflections texts still to agree. At around 18:45, I formally moved that we agree the text of the proposed conclusions to the Ministerial Code section (these ended up as paragraphs 717-721 in the Final Report). They were agreed by division.

Thirteen minutes later, at 18:58, James Matthews dropped his bombshell and reported the conclusions of the Ministerial Code section on twitter and on Sky News. The Committee was still meeting and the report was not due to be published until the following Tuesday. There was a fair degree of astonishment and anger. Stuart McMillan walked out of the virtual meeting.

OTHER LEAKS

This was not the only occasion when confidential material had ended up in the public domain. The weekend after the Sky News leak, confidential evidence from the two complainers, Ms A and Ms B, from whom the Committee had taken evidence earlier in the week on 15 March, appeared in the media. Members had been explicitly advised of the sensitive nature of the evidence we heard, of the potential for contempt of court and of the risks of breaching the agreement entered into between the Parliament and the complainers in relation to how their evidence would be heard and reported. Nevertheless, confidential material containing salacious detail ended up being briefed to The Sunday Times and printed on 21 March 2021.

In January and February 2021, the Committee was engaged in a protracted dispute with Mr Salmond about the publication of his evidence and arrangements for giving oral evidence. Mr Salmond’s legal representatives, Levy and McRae, chose to send various emails and evidence directly to Committee members rather than, as advised, directly to the Clerk of the Committee.

At 15:32 on the afternoon of 22 February 2021, David McKie of Levy and McRae, wrote to the Committee to report that his client (Mr Salmond) had just been approached by media representatives who advised him that the First Minister had organised a media interview at 4 p.m. to “rebut our client’s latest submissions to the Committee.” These submissions had been sent to the Committee on 17 February but were not published until after 19:00 on 22 February. Whether the First Minister’s media interview was in fact in response to Mr Salmond’s latest submissions or alternatively in response to the briefings that Mr Salmond’s team had themselves been providing to the media, I cannot say. But if it was the former, and she had sight of his written submissions, then clearly someone had leaked them.

CUI BONO?

The sources of leaks are seldom found. I still do not know how some of the Committee’s conclusions ended up being broadcast by Sky News ten minutes after we agreed them. But I can say something about the likely culprits.

Leaks typically occur when the person leaking considers that either they have something to gain from the leak or that it is in the public interest for information to be publicised. People do not leak confidential documents on a whim. It is a risky venture and tends only to be done when the stakes are high and when there is a clear rationale for doing so.

First of all it is important to note that James Matthews must had had the draft conclusions well before 18:58. It is inconceivable that whoever leaked them did so at 18:45, that James Matthews managed to assure himself of the authenticity of the documents and organise an outside broadcast live on TV all within 13 minutes. As we will see, I think there was contact with Mr. Matthews in that time window but it was not the first contact that had been made.

The first draft conclusions on the topic of breaching the Ministerial Code were circulated to the Committee at 08:12 on Thursday. The draft conclusions that James Matthews reported were circulated at 16:31. We voted on them at 18:45 and they were then revealed on Sky News at 18:58. Whoever leaked them must have provided them to James Matthews well before 18:45.

It is worth noting as well that the meetings held on the Thursday were all virtual. Anyone could have been present with any of the MSPs hearing the Committee’s deliberations.

So who leaked the document?

As I argued at the outset, I am quite certain that none of the MSPs on the Committee leaked it directly to James Matthews. This would have been highly risky and without any evident purpose. The report would be published the following Tuesday after the verdict from James Hamilton and two days before Parliament went into recess for the May election. The report would, in presentational terms, be the last word.

To the extent that any opposition party MSP considered that there was any political advantage to them from the conclusions, they just had to wait just over four days. In any event, if they thought that the press should see them before Tuesday, they would, given the sensitivity of the leak, consult their own media teams and leaders. Even then, if there was any partisan gain to be had, the Sunday newspapers were the obvious channel for any such leak. There was one party for whom there was an evident benefit in leaking the conclusions, however.

Whilst not at first appearing to be of benefit to the First Minister, the leaking of the conclusions could be used by the First Minister’s political operatives as the precursor to the fury and condemnation directed at the Committee and effectively neuter the impact of the final report when it landed on Tuesday. It was a high risk strategy but there was little to lose. The Committee’s recommendations would have to be dealt with one way or another on the following Tuesday. James Hamilton’s report was due on Monday.

There was a channel of communication from the Committee that had been revealing confidential material for some months. I spoke to two political journalists, both of whom claimed that they received briefings from Scottish Government Special Advisers (SPADs) at various points during the inquiry. Much of the content of these briefings was spin on oral and written evidence that was in the public domain, but on a number of occasions it concerned details about process and evidence that was not in the public domain. Such information had to have come from the Committee, but neither myself, nor Liberal Democrat, Labour or Conservative MSPs were in the habit of briefing SPADs.

All of which leads me to conclude that it was the SNP which stood to benefit from the leak, as it provided an excuse to trash the Committee, its opposition members and, by extension its report and conclusions.

SO WHAT HAPPENED?

Here’s my best assessment.

The briefing provided to journalists by SPADs came from information supplied to them by an SNP member of the Committee. At some point on Thursday after 08:12 when the first draft was circulated, a SPAD was provided with the draft conclusions. They were perhaps emailed or perhaps the SPAD was present with the member at what was a virtual meeting.

Either way, the Government needed to know as soon as possible what was going to hit them on Tuesday and the job of the SNP member was to provide advance warning of what was to come.

During Thursday, a plan was devised that, for reasons of plausible deniability, was never shared beyond a very small circle of advisers and certainly not with the First Minister, who could not be seen to be part of the operation and who needed to be able to react with genuine surprise and fury at the leak.

Advisers got hold of the early 08:12 draft and decided that it should be leaked. This would not be the first time that James Matthews had been given stories by sources close to the First Minister that were damaging to Mr. Salmond. James Matthews was offered the exclusive. But SPADs and Mr. Matthews had to wait until the Committee had voted on the the text. After 16:00, it would be clear that the Committee was going to divide on the text and that it would pass by a majority. James Matthews got organised and ready to go on air at a moment’s notice. Shortly after 18:45, when the vote took place, he was given the all-clear to broadcast the text.

THE FURY

After James Matthews had dropped his bombshell, the journalist, who was known for his assertive interviewing style, waited for Nicola Sturgeon at her home. This is unusual. Journalists by convention do not doorstep the First Minister at her home unless there is a major news story breaking involving her – which there was. James Matthews was the only journalist there. Was he there on his own initiative or had he been tipped off?

The First Minister accused me and other MSPs of being partisan and having made up our minds before hearing her evidence.

This was followed the next day by Alasdair Allan, Maureen Watt and Stuart McMillan, with their faux outrage and accusations, trashing the committee’s reputation. Social media was awash with condemnation of myself and my opposition colleagues. The narrative was established that we were partisan and had debased Parliament by leaking sensitive information.

The First Minister’s spokesperson released a statement questioning the integrity of the Committee’s members (presumably excluding the SNP members, though at this stage that hardly needed saying), accusing us of “baseless assertion, supposition and smear”. The irony of this last accusation was clearly been lost on whoever wrote the statement.

Spin doctors held private briefings with journalists to try to undermine my personal integrity in particular.

Meanwhile, I responded to over a dozen queries from journalists about the authenticity of the leak, by saying that I was barred from commenting until the report was published.

How naive of me.

To cap it all, the leak of Ms A’s and Ms B’s evidence on the Sunday amplified this narrative a hundred-fold, with further accusations of bad faith and betrayal by us.

The plan was a success. The reputation of myself and my opposition colleagues was in the gutter. Un-evidenced claims that one of us had been the source of the leak became alleged established fact.

The Committee’s reputation was in tatters and its conclusions derided.

AFTERMATH

We still do not know who was responsible for this leak. But it is notable that the Ethical Standards Commissioner wanted to interview political parties but for, following legal advice, concluded that he couldn’t..

I have said nothing about the leak of Ms A’s and Ms B’s evidence, but cui bono?

Finally, the MSP Code of Conduct is not fit for purpose. It is now abundantly clear that any MSP can, for malign motives, leak Committee reports and, indeed, any other confidential information.

They can then conduct a systematic demolition job on the Committee’s conclusions, since the rules on confidentiality no longer apply.

Meanwhile mugs like me follow the spirit of the rules and make no comment. I shall be writing to the Presiding Officer on the matter.

Thanks for reading.

——————————————————————————————————-

Statement by Alasdair Allan, Maureen Watt and Stuart McMillan

STATEMENT FROM MSP [sic] MEMBERS OF SGHHC COMMITTEE

“This Committee was meant to carry out a dispassionate search for the truth.

But, at the very last minute, without full consideration of the evidence, the opposition railroaded through their prejudged assertions based purely on political considerations.

On the question of the First Minister offering to intervene, there are two sides of the story and we have evidence from both sides, but opposition MSPs chose not to reflect that by selectively referencing only the evidence which supported their preconceived narrative.

We have also heard clear, consistent evidence that the First Minister had no knowledge of concerns of inappropriate sexual behaviour by Alex Salmond before November 2017.

Yet, without a shred of evidence to the contrary, the opposition simply used their majority on the committee to insert 11th-hour predetermined political assertions that have no basis in fact. That is simply disgraceful and wrong.

For the opposition, this was never about the truth. It was never about the evidence and, shamefully, it was never even about the women. All of these are being sacrificed in pursuit of political ends.

This is the politics of desperation by the opposition members.”

Alasdair Allan
Maureen Watt
Stuart McMillan

Note:

We the above Members release this joint statement to address issues raised by the leaking of information – in blatant contravention of the MSP code – relating to the unfinished and unpublished report from the Committee on the Scottish Government Handling of Harassment Complaints.

We have previously refused to give a running commentary on the Committee’s work but media speculation has compelled us to comment solely on accounts recently placed in the public domain and we will not comment further until the full report is published.

Climate Finance and Carbon Offsetting

03. March 2023 · 16 comments · Categories: Environment, Finance & Money, Forestry, Land Reform, Land Use, Politics, Scotland's hills

Image – Minister for Green Skills, Circular Economy and Biodiversity, Lorna Slater MSP signing a Memorandum of Understanding with Hampden and Co., Palladium and Lombard Odier Asset Management Europe) Ltd.

On 1 March 2023, NatureScot announced a £2 billion private finance pilot designed to secure landscape scale restoration of native woodlands.

The project involves NatureScot and private companies Hampden and Co., Palladium and Lombard Odier Asset Management Europe) Ltd.

NatureScot has provided me with a copy of the Memorandum of Understanding (MoU) with the agreement of the investment partners. It is worth a read – it is only 5 substantive pages.

In the MoU, signed in February, the parties agree to explore the potential for a significant investment in woodland creation in Scotland focussing on the Scottish Borders and the Atlantic Rainforest.

The parties aims are inter alia to “catalyse private investment into the project at significant scale”, to deliver “high integrity carbon investment”, demonstrate how government policy and subsidy support can enable private investment into nature restoration” and “maximise the benefits for nature and communities from the investment”.

Hampden and Co will provide finance for the project via Special Purpose Vehicles (SPVs).

Palladium will design the project, establish SPVs and lease with partners on the ground to agree terms of investment and carbon contracts.

Lombard Odier Asset Management Europe) Ltd. will be responsible for selling carbon credits.

The project will provide financial returns for landowners and investors whilst claiming to “deliver significant and lasting community benefit“. See the NatureScot media release for a full FAQ on the project

This blog is not so much about this project which will at least provide some greater transparency around how carbon markets may evolve in Scotland but about the assumptions and policy decisions which appear to lie behind it and other activity undertaken by Scottish Ministers to promote carbon markets and private investment.

Carbon Offsetting

Scottish Ministers have stated an ambition to develop carbon markets in Scotland as a means of securing private investment in nature restoration and contributing to the statutory net-zero climate targets. Offsetting is the means by which polluters can buy carbon credits to offset their emissions. Carbon credits are typically sold by brokers on behalf of landowners whose management activities (such as tree planting and peatland restoration) lock up carbon or (in the case of peatland restoration), curb existing emissions.

The development of a carbon market is seen as key to attracting the kind of investment represented by the financiers behind this project as as has already taken place by financial companies such as Aviva and Standard Life.

The problem with this whole approach is that there has been no comprehensive assessment made of to what extent carbon offsetting should be part of Scotland’s net-zero plan. Every ton of carbon that is sequestered by woodlands (for example) and offset against emissions by cement factories or fashion companies, is a tone of carbon that is contributing nothing in the long term to net-zero since it has been sold as an offset to a polluter enabling them to continue polluting.

How much of Scotland’s land shoudl we allow to be used for this purpose?

No answers have been forthcoming from Government and yet it is a central player in this market since it provides the key means of validating claims about carbon credits through its Woodland Carbon Code and has provided guidelines for investors through the Interim Principles for Responsible Investment.

In the FAQ associated with the project, NatureScot claim that carbon offsetting is an important part of global agreements on climate change. However, there are no legally-binding agreements in place that govern who can use offsetting. The MoU claims that an ethical framework will be developed to ensure that offsets are used only by “legitimate businesses who have credible carbon reduction pathways in place”.

Even more fundamentally, even if offsetting is a legitimate means of companies with unavoidable emissions achieving net-zero, why should then be expected to acquire offsets rather than simply, for example, having their emissions assessed by Government as unavoidable. Such registered emissions would then be accounted for within national carbon budgets with no need for a private, unregulated market in carbon offsetting.

The £20 billion finance gap

Central to the Government’s argument is the so-called “finance gap for nature”. In NatureScot’s media release, the Minister, Lorna Slater is quoted,

Biodiversity Minister Lorna Slater said: “The finance gap for nature in Scotland for the next decade has been estimated to be £20 billion. Leveraging responsible private investment, through valuable partnerships like this, will be absolutely vital to meeting our climate targets and restoring our natural environment. Scotland is well placed to take a leading role by offering investors the opportunity to generate sustainable returns from the restoration and regeneration of our landscapes. This investment will generate multiple benefits: ending the loss of biodiversity, improving water quality, reducing the risk of flooding, regenerating local communities and creating green jobs.”

What exactly is this £20 billion finance gap? The figure derives from a report published by the Green Finance Institute, an “independent, commercially focussed organisation backed by government and led by bankers”. In the “Finance Gap for UK Nature” report, published in October 2021, the gap between required spending and committed spending by Government to deliver nature restoration is claimed to be between £44 and £97 billion. For Scotland, the gap is £15-£27 billion with a central estimate of £20 billion.

The nature-based outcomes covered by this gap are illustrated below (figures are UK-wide).

The breakdown in the finance gap for Scotland is illustrated below.

The finance gap thus covers a wide range of outcomes of which, for Scotland, the largest (£9 billion) is climate mitigation through bio-carbon). The second largest is the protection and restoration of nature (£8 billion). Woodland creation is only one part of this with others including protecting endangered species, restoring freshwater habitats, ensuring seafloor habitats anre healthy and sustainable and achieving biodiversity net gain.

Should we be planting trees?

Of the £20 billion finance gap, £8 billion is for the restoration of habitats and only part of this (the Finance Gap for UK Nature report provides no further breakdown) is for woodland creation and management.

In addition to the unanswered question of what role (if any) offsetting should play in Scottish climate finance, is the question of whether we even need all of this private investment in the first place. Clearly we do need private investment. Over 85% of Scotland is privately-owned and the public is not in a position to make all the investment that is required.

It is at this point, however, that there appears to have been no detailed analysis by Government as to how nature restoration could be supported. Instead, it has jumped onto the rapidly growing carbon offsetting model.

There are alternative means of restoring nature. Here are some.

Landowners could be placed under legal obligations to restore nature (the damage to which has been caused in large part through their management activities) through the tenure system or through policy instruments such as the Land Rights and Responsibilities Statement.
Government could implement the recommendations of the Deer Working Group to reduce wild deer densities to the level required to allow forest regeneration.
Reform agricultural support to require nature restoration as a condition of agricultural subsidy.
Strengthen biodiversity gain through the planning system.
End damaging actives such as muirburn.
Reform land and property taxes to deliver woodland, water and peatland restoration

Regulating existing ownership and use of land in ways designed to restore nature and contribute to net-zero has huge potential to achieve nature restoration goals. Much of this will be at no cost to the public purse and will not involve global financial corporations becoming partners in any such activity.

Currently, government is sleep-walking into a future of global capital and carbon markets with no clear policy on whether and why offsetting should even be supported and no clear plan as to the extent to which alternative policy measures could deliver landscape scale nature restoration.

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

Highland Titles Day 2023

10. February 2023 · 3 comments · Categories: Environment, Finance & Money, Land Rights, Who Owns Scotland

Happy Highland Titles Day (10 February 2015)

Its been a while since I have said anything further about Highland Titles for obvious legal reasons. I do have a great deal more to say of which more later.

Meantime, it is worth noting that Highland Titles Ltd. (company registered in Alderney No. 1599), a company that has sold over 300,000 souvenir plots over the years (see image above), is no longer selling any souvenir plots.

If you buy goods or services on any website there will be (or should be) a page setting out the terms and conditions of the transaction. This is the legal basis for the contract of sale being entered into.

Highland Titles Terms of Sale are to be found here. They make clear that if you do not agree to be bound by these terms then you should stop using the website immediately. So let’s have a look at them.

At the outset, it is noted that the agreement is between you the customer and a company called Scottish Highlands Ltd. This is the company that is selling the souvenir plots now and not Highland Titles.

Under the Privacy Policy, it is claimed that “Scottish Highlands Ltd.” trades as “Highland Titles”.

Scottish Highlands Ltd. is a company registered in Guernsey (69292) and was incorporated on 3 June 2021. Its Directors are Laura Bevis, Helen McGregor and Douglas Wilson. Its beneficial owners are Laura Bevis and Helen McGregor. Helen McGregor is the spouse of Peter Bevis, the founder of Highland Titles.

Mr Wilson is the CEO of Highland Titles and was heavily involved in Wildcat Haven Enterprises CIC (WHE), the company that sued me for £750,000 (and still owns me £60,000 in expenses). It was Mr Wilson that put up the £110,000 bond of caution on behalf of WHE when in the Court of Session.

Anyway, let’s move on.

Under Definitions, “goods” means “any products that Scottish Highlands Ltd. advertises or makes available for sale through the website” (so souvenir plots mainly but there are also tartan tammie hats, Highland Titles face masks and a selection of soft toys). Thus Highland Titles are no longer selling any of these products – Scottish Highlands Ltd. is.

But Highland Titles has not gone away. It appears in at least 25 clauses of the Terms to Sale. Now this “Highland Titles” may simply be referring to the name by which Scottish Highlands Ltd. trades (see above) but nowhere in the Terms of Sale is that stated (it should be). Nor is there any definition given of what is meant by the term. Highland Titles is, for example, responsible for the communications systems on the website.

Under Clause 5 (Intellectual Property), we are told that all text, graphics, logos etc. are “the property of Scottish Highlands Ltd, our affiliates or other relevant third parties and that they are protected by UK and international intellectual property law”. If you wish to use them, you can ask permission from a company called Little Landowners Ltd..

Little Landowners Ltd. used to have a website (it seems still to exist but has no content) that promoted the sale of souvenir plots to children. Little Landowners was incorporated in England and Wales (Company 11477641) on 23 July 2018. The sole Director was Douglas Wilson but the person with significant control was The Little Land Company, a company registered in Guernsey (No. 64451).

Little Landowners Ltd. was struck off by compulsory strike-off under Section 1000(3) of the Companies Act 2006. Thus, if you wish to use any of the text, graphics, logos, etc. you will be asking a defunct company.

Under Clause 9.2, you also acknowledge that this struck-off company “reserves the right to monitor and any and all communications made to use or using our system (“system” being defined as the online communications infrastructure made available by Highland Titles).

So who should you ask if you want to use any of the intellectual property? Well, presumably you should ask the owner of the relevant intellectual property. If, for example, you wished to use the registered trademark “Laird of Glencoe”, then up until October 2014, you would have had to ask a company called Highland Titles Ltd.. Oh, and that is not the Highland Titles registered in Guernsey but a company of the same name registered in the British Virgin Islands. If you wish to use it now, you should ask another company, Highland Titles OÜ, a company registered in Estonia.

Highland Titles OÜ also owns the intellectual property in “Conserving Scotland one square foot at a time”, “Lady of Glencoe”, “Highland Titles”, “The Jacobite Trail” and “Celtic Titles”. Celtic Titles sells souvenir plots in Ireland, an operation run by Highland Titles OÜ (although any dispute will be governed by the laws of Guernsey despite it being an Estonian company).

The owners of Highland Titles OÜ are Douglas Wilson and Helen McGregor. The company had a turnover of €2,488,706 in the year to 31 December 2020 and made a profit of €741,537.

Highland Titles OÜ owns two parcels of land at Kilnaish and Glen Nant in Argyll. You can buy souvenir plots at Kilnaish through the Highland Titles website though your contract will be with Scottish Highlands Ltd.. Highland Titles OÜ claim not to control any sites that the Highland Titles website links to (Clause 7).

Finally, under the Overseas Companies Regulations 2009, all non-UK companies having a place of business in the UK are required to register with Companies House (not to be confused with more recent Register of Overseas Entity regulations requiring registration of non-UK companies that own land or property in Scotland). Neither Highland Titles Ltd. nor Scottish Highlands Ltd. are registered (though both Scottish Highlands Ltd, and Highland Titles OÜ have complied with the requirement to register on the Register of Overseas Entities).

Quexus Ltd, a company registered in the British Virgin Islands which owns the estate from which Highland Titles operates and sends gift packs (presumably on behalf of Scottish Highlands Ltd.) is also registered in the Register of Overseas Entity. Its beneficial owner is Helen McGregor.

I offer all of the above in the spirit of consumer advice. I do not expect any of my readers will be contemplating buying a souvenir plot from Highland Titles/Scottish Highland Ltd./Highland Titles OÜ or Little Landowners Ltd. but if you do, maybe check the Terms of Sale first.

This blog has been supported by donors to my defamation crowdfunder who kindly donated their eligible refunds to my work on land reform. These refunds were provided of course from the £110,000 Bond of Caution lodged by Douglas Wilson.

Established Titles

02. December 2022 · 2 comments · Categories: Environment, Land Rights, Land Use, Legal affairs, Who Owns Scotland

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.

Land Reform Bill Consultation

26. October 2022 · 3 comments · Categories: Democracy, Land Reform, Land Reform Bill 2023, Land Rights, Land Use

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. 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. Similarly, many large-scale landholdings as defined consist of extensive areas of upland with no-one living. There is no community to be affected. 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: All land, regardless of size, must be registered in the Land Register of Scotland. 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. All non-domestic land should be one the valuation roll All land should be liable to at least some property tax even if at a modest level 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. 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. 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. 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). Council tax should be scrapped and replaced with a progressive domestic property tax 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 Enhanced protection for common land Transfer of ownership and management of Crown land from Crown Estate Scotland to local authorities Powers for local authorities to acquire land for developement at existing use value Introducing a new Use Class for second homes as has been enacted in Wales. Democratising charities that own land such as Mount Stuart Trust (Bute) and the Applecross Trust (Applecross) to allow local people to join as members Transfer decision making on community rights to buy to local authorities Modernise the Land Settlement (Scotland) Act 1919 Reform inheritance law to allow children to inherit land Introduce residency requirements for landowners Enact mandatory targets for nature restoration Make the destruction and ongoing decline in native forests a criminal offence unless otherwise approved. Reform District Fishery Boards Democratise hunting though a licensing system operated by local authorities and much more.

The Future of Kinloch Castle on Rùm

25. October 2022 · 12 comments · Categories: Culture & History, Land Reform, Land Rights, Land Use, Who Owns Scotland

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

Land Reform Consultation – Scale and Concentration

22. July 2022 · 6 comments · Categories: Environment, Land Reform, Land Rights, Who Owns Scotland

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.

Land reform in a Net Zero Nation

12. July 2022 · 12 comments · Categories: Environment, Land Reform, Land Rights, Land Use, Uncategorized

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 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)

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

The Rio Earth Summit & the Scottish Forest Charter

06. June 2022 · Write a comment · Categories: Environment, Forestry, International, Land Use

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.

Restoring the Commons

23. May 2022 · 5 comments · Categories: Culture & History, Land Reform, Land Rights, Legal affairs

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.