Where now for the Land Reform (Scotland) Bill?
INTRODUCTION
The Net Zero, Energy and Transport has no completed taken evidence as part of its stage one scrutiny of the Bill this concluded with evidence from the cabinet Secretary Mairi Gougeon on Tuesday 18 February. The draft Official report is available here. The committee is drafting its Stage One report and the Stage One debate has to be held by the end of March. More resources on the Bill are available here.
In this blog, I want to briefly highlight important revelations made by the Cabinet Secretary and point to the priorities in relation to amending the Bill.
THE EVIDENCE BASE
Government has said that it is keen to tackle the concentrated pattern of landownership but in evidence to the Committee, the Minister made clear that this ambition is restricted to circumstances where the impact of concentrated landownership is felt locally and where there is evidence to that effect. This follows advice from the Scottish Land Commission in 2019 [1] and 2021 [2] which argued that scale in and of itself was not a problem but it was a useful proxy for the concentration of power at a local level. In other words, as Scotland’s pattern of private rural landownership is getting more and more concentrated, Ministers do not believe that there is any evidence that this is an issue to be tackled per se. This is quite an important perspective on Scottish Government policy making after quarter of a centry of devolution.
This advice and associated recommendations have never been subject to any meaningful scrutiny or challenge and so have become the basis for this Bill. The following exchange between Michael Matheson and the Minister encapsulates this (italic emphasis is mine – Cols 17-18 of Official Report).
Michael Matheson:
….. The cabinet secretary will be well aware of the significant commercial holdings of land that are owned by companies and that are all under the threshold, although in some cases those companies are in the top five landholders in Scotland. They would be left out. They would not be covered by the existing definition of how land management plans should be applied. Has any thought been given to including aggregated or corporate holdings in a way that would allow us to make sure that we are capturing what are very significant landholders who, because of the nature of the parcel of land that they own, fall under the threshold for a land management plan?
Mairi Gougeon:
I appreciate that point, which I have also picked up through evidence. What is key for us is that our proposals have an evidence base, which is why they are framed in the way that they are. I also completely appreciate the point that you make about aggregate holdings. However, the bill focuses on how communities are impacted by a high concentration of land ownership in an area, which would be harder to evidence if we were looking at overall ownership, which could be in other parts of the country, too. Bringing aggregate land holdings into the bill might not be appropriate to meet that aim and we would have to give that greater consideration. I hope that that helps to explain the approach that we have taken. The focus is on the concentration of land ownership in an area, which becomes more difficult to evidence when looking at aggregate holdings.
Michael Matheson:
I understand that, but do we want, for example, the third-largest landowner in Scotland potentially not to be required to produce any land management plans because every parcel of land that they own falls under the threshold? Is that seriously what we are trying to achieve?
Mairi Gougeon:
I completely appreciate and agree with your point, but we need to make sure that the proposals that we introduce are evidenced, so that they stand up to scrutiny. I am not averse to considering that point, but we would have to give greater thought to how that mightwork and what the evidence base for that might be. I understand the concerns that were raised in evidence in relation to that.
Michael Matheson:
If we get to the point where someone is the third-largest landowner in the country but does not have a land management plan to their name, while someone who happens to have one piece of land that is just over the threshold has to go to the extent of having a full land management plan, there will be a real inequity to that. That needs to be addressed.
Mairi Gougeon:
We would have to give greater thought to how that could be done and to the evidence base that we would use if that was to be the proposal.
Source: (Cols 17-18 of Official Report)
When the Minister talks about evidence, she is referring to the work of the Scottish Land Commission that formed the basis for the advice given to Ministers. When she talks about the Bill standing up to scutiny, she means that any legal challenge is best defended by being able to point to the evidence of the Scottish Land Commission.
In short, Ministers have created a straitjacket for themselves based on a partial evidence base and remain extremely nervous about legal challenges.
The partiality of the evidence is highlighted by a later comment from the Minister,
Mairi Gougeon:
With regard to pieces of land that communities might be interested in taking ownership of, the vast majority—I think that the figure is between 60 and 70 per cent—are areas of less than a hectare (col. 26)
This highlights a glaring contradiction. If communities (and I would argue individuals and business) are predominantly interested in small parcels of land, why restrict the provisions in the Bill to large landholdings over 1000ha which impact on probably only around 5% of the Scottish population?
Why must a landowner who owns 1010ha be required to notify Ministers when they sell 2ha that affects nobody but a landowner who owns 990ha has no such obligation in relation to the sale of 500ha which has a significant impact on a local community?
AMENDMENTS
The prospects for this Bill being improved appear to be limited to modest changes which will not overcome my principal objection that, with the exception of management plans, the provisions in Part I (amended or not) will have next to no impact whatsoever on the pattern of ownership in Scotland. Ministers can simplify these procedures all they like but if the core mechanisms remain as they are then they will remain ineffectual as I have previously argued.
So what can be done to improve Part I of the Bill?
MSPs should focus on the management plan provisions. Indeed this is the only part of Part I that I think is going to achieve anything. There are three key reforms to be made.
- Firstly, the timescale for management plan should be extended five years to anything between 20 and 50 years.
- Secondly there should (at the very least) be the option for these plans to be registered against the title meaning that they become binding on successors.
- Thirdly, there needs to be some measures to ensure implementation of these plans.
A lot more thought needs to be given to why we are doing this in the first place. It is not just to bring some transparency and community engagement on land use, welcome as those aims are. It should be to provide an enhanced framework for restoring nature and achieving net-zero. Those goals are not achieved by five year plans that can be changed every time there is a new owner and where there is no framework for ensuring implementation.
One possible way forward is for landowners who agree to a longer plan (say 50 years) have it registered against the title and would then have priority access to government grants and support for nature restoration.
One other important area for amendment is in monitoring and reporting which should take two forms.
The first is at a technical level reporting on the operation of the mechanisms in the Bill – in other words the number of notified sales, lotting decisions etc.
The second (and far more important) aspect of monitoring and reporting is to have a better assessment of land governance across Scotland and how it changing. At the moment we don’t have this data and we cannot therefore undertake an assessment of the extent which all of the land form measures of the past 25 years are contributing towards a more diverse pattern of landownership
The Bill of course has a wide scope and amendments can go beyond the provisions set out to included other reforms to the ownership or management of land. Introducing new areas of policy at Stage 2 however is tricky as they will not have been subject to any meaningful consultation. I hope to turn my mind to these other areas soon.
NOTES
[1] 2019 report https://www.landcommission.gov.scot/downloads/5dd7d77021f04_Report-to-Ministers-Scale-and-Concentration-Land-Ownership-FINAL-20190320.pdf