Scottish Land Commission Amendments

10 minute read.

The Scottish Land Commission (SLC) has published advice to Scottish Ministers on changes that it recommends be made to Part I of the Land Reform (Scotland) Bill introduced to the Scottish Parliament by the SNP/Scottish Green coalition government in March 2024.

A copy of the advice can be found here.

The key changes proposed are as follows.

• Setting a unified threshold of 1,000 hectares for all proposed measures, rather than the varied thresholds currently set out.

• Simplifying the Prior Notification process by introducing a single 90-day notice period, with exemptions for small transactions and a decentralised local notification system.

• Ensuring a wider range of public bodies and community councils are involved in ensuring accountability of Land Management Plans.

• Strengthening the Transfer Test to focus explicitly on public interest and enable strategic public sector land acquisition for housing, community ownership, farming and other opportunities

My reflections on these proposals are as follows.

This is not the way to develop public policy

I was critical in my oral and written evidence (links available here) to the Net Zero, Energy and Transport Committee that the Bill had been developed with little meaningful input by those who could have helped to make it work. An initial quite high level consultation in July 2022 was followed by no further public consultation until the Bill was published in March 2024 and the Scottish Parliament began the process of Stage One scrutiny.

I contrasted this with the process adopted in 2000-2001 by the Scottish Executive in developing what became the Land Reform (Scotland) Act 2003. In particular I drew attention to the publication of a draft bill in February 2001 which contained clear policy explanations and a draft bill accompanied by explanatory notes on each section.

This process enabled anyone with an interest to provide comments and feedback to Ministers with a view to making the sure the Bill was as robust as it could be. Such feedback was given in an atmosphere of assisting Ministers in developing the final version of the Bill for introduction to Parliament.

By contrast this time around, those of us interested in robust and effective legislation have had to raise the flaws and weaknesses in the Bill as part of the Parliamentary process. This means that there is less time to do anything about them, they have to be dealt with in the political heat of Parliamentary proceedings and amendments are not subject to any meaningful public consultation.

The proposals published by the SLC reflect this inadequate process. They are not just normal amendments to a Bill. They involve ripping up major parts of it and replacing them with new provisions (eg the prior notification proposals) as well as introducing completely new proposals such as a statutory power for Ministers to acquire land as part of the lotting decision process.

If accepted in whole or part by Ministers these new proposals would be given effect by Government amendments at Stage 2. Ordinarily, MSPs sitting on the Net Zero, Energy and Transport Committee will have no opportunity to find out what everyone who submitted evidence at Stage One thinks about these changes and very limited scope to properly scrutinise and test the purpose, operation and effectiveness of such amendments (which it should be remembered are complex enough already because they do not stand alone but instead amend existing Acts of the Scottish Parliament).

The proposed amendments to management plans are welcome but not enough

The proposed amendments to the management plan provisions bring the threshold down to 1000 hectares to match the threshold for the prior notification measures. Given that the management plan proposals are the only meaningful reform in Part I of the Bill, this is welcome. However, the SLC has made no proposals in relation to whether such plans are expected to be implemented. At present the Bill mandates the preparation of a plan for a five-year period. Beyond that requirement, however, there is no duty to implement it, for it to be binding on successors, or to enable any such implementation to be monitored.

The remains very weak framework for something that should be quite transformative. I recommended in my oral evidence to the Net Zero, Energy and Transport Committee on 3 December 2024 that the example of Forest Dedication Scheme should be considered, a scheme introduced in 1947, which dedicated land to forestry and was registrable against the title ensuring that the commitments entered into were binding on future owners.

In this regard it is interesting to note that in the July 2024 Minutes of the Senior Executive Team of Scottish Forestry, it was agreed that Scottish Forestry would seek amendments to the Forestry and Land Management (Scotland) Act 2028 through a Bill such as the Land Reform Bill to “ensure that forests and woodlands remained such in perpetuity”. If Scottish Government civil servants are proposing amendments to ensure that a certain land use is continued in perpetuity, it does not seem much of a stretch for Ministers to strengthen the Land Management Plan provisions to ensure that over the next 50 or so years, they are in fact implemented and are binding on whoever may own the land in future. [1]

Amendments do simplify the complex bureaucratic processes in the Bill

The SLC has identified means by which the existing processes in the Bill can be simplified and made less bureaucratic, complex and onerous. These proposals reflect evidence given by much of the written and oral evidence to date. In particular the changes to the prior notification process (a process which I argued looks like a job creation scheme for civil servants and which brings into scope sales such as the sale of a house to a tenant) are welcome. If taken on board, these amendments will help to deal with some of the problematic details in the bill.

The amendments make no change to the underlying inadequacy of the Bill

In the evidence session held on 3 December 2024, Mark Ruskell MSP asked myself and other witnesses the following question to which the following answers were given.

Mark Ruskell: I am wondering where we are with the bill now that we have had several hours of criticism and proposals for some pretty fundamental changes to itWhat are your thoughts on the bill? Should the bill as it stands pass? Is it fixable?

Peter Peacock: As it stands, no, the bill should not pass, but with amendment, yes, it should.

Laurie Macfarlane: As the bill is currently drafted, it should not pass. However, with some fairly significant amendments, it could be worth while, although it would probably still not cover everything that it needs to cover.

Magnus Linklater: I do not think that the bill is workable in its present form, for all the reasons
that we have heard this morning. The Government should withdraw the bill and reconsider it from a different perspective, which is that of land use, rather than the distribution of land.

Andy Wightman: As I said in my written evidence, the committee should not recommend that Parliament pass sections 2 to 6. Although, as Mr Ruskell knows, anything can be amended, the bill has already been drafted. My point is that more pre-legislative work should have been done. The fundamental principle behind lotting, prior notification and all the rest of it will not deliver the outcomes that ministers are seeking. However much the bill is amended, if they stick with that principle and those mechanisms, it will not deliver the right outcomes. It would be irresponsible of Parliament to impose new, complex, legalistic and bureaucratic mechanisms on the people of Scotland that will not deliver the outcomes that ministers say that they will. That is just making bad law.

Prior notification, which opens up the possibility of right to buy registration (under the 2003 Act which is itself the subject of review), over the small amount of eligible land coming on the market each year, by a community body that may not exist, and which has to satisfy the high hurdle that already exists for later registrations ,will achieve precisely nothing to effect meaningful changes in the pattern of landownership which is already getting more concentrated.

The same arguments apply to lotting.

Ministers can propose all the amendments they wish to make these processes simpler but the underlying mechanisms will simply not deliver the outcomes Ministers claim they will. This is the central challenge for the Net Zero, Energy and Transport Committee to grapple with – what precisely, over what timescales, will change as a result of this Bill and how, in the abscess of any reporting or monitoring duties, will we know that it has or has not?

Concluding thoughts

Contrary to some popular belief, I am not nor ever have had, any significant influence in public policy-making. I have never been a member or advisor to any of the land reform advisory processes and my last meeting with a Scottish Government Minister, was over 20 years ago (when I did manage to secure a modest but important change to legislation). And so I have no illusions that the critique which I and others have made of this Bill will be listened to.

But what can do is write blogs like this, to undertake research and analysis, and to monitor the changing face of landownership in Scotland. In five and ten years time I hope to still be in a position to do this. In the absence of any monitoring, reporting or evaluation duties in the Bill, I will at least be able to do this (for example, I will shortly be publishing a report on who owns Scotland 2025, the rural land market 2023 and a report setting out all of the 1100 or so landholdings of over 1000ha captured by the Bill).

There will be no hiding place in future. With the appropriate data, we will see whether in fact this Bill has or has not delivered the transformative changes that Ministers claim it will.

NOTES

[1] – See 24 July 2024 Minutes agenda item 3. https://www.forestry.gov.scot/publications/about-scottish-forestry/structures/senior-executive-team/senior-executive-team-minutes-2024