“Price of farmland hits record high” scream the headlines today across all the media. The BBC, Scotsman, Herald, and local media from the Deeside Piper to the Kilmarnock Standard.

All these stories have two things in common. First, they are virtually identical. Journalists have simply reproduced a press release. Second, they are all inaccurate. What is going on? The answer is that vested interests are successfully capturing the news agenda. In this case it is the Royal Institute of Chartered Surveyors (RICS) and they are on a roll.

Ten days ago, RICS issued a media statement entitled “RICS July 2013 Residential Market Survey” which was widely reported in the press as a recovery in the housing market with rising prices and more buyers entering the market. In reality, the survey (copy here) was a “sentiment” survey based on asking RICS members for their opinion. This is analysed as a “net balance” – a figure between -100 and 100 where -100 means all members think that a variable will decrease and +100 means they all think it will increase. As the small print makes clear, “Net balance data is opinion based; it does not quantify actual changes in an underlying variable”

The vested interest is relevant here because of course members of RICS earn their living by charging fees. In the case of land and property transactions, they typically charge a percentage of the selling price. So the opinion of RICS members is not an objective opinion.

Nevertheless, their Residential Market Survey received massive coverage. So much, in fact that two days ago, the RICS proudly announced that it had generated “our greatest number of media hits ever in one day“. I am sure their members are delighted that their membership fees are buying such good coverage of their own opinions.

So to today’s reports in the media about farmland prices. The BBC report claims that,

“The price of farmland in Scotland hit a record high in the first half of 2013, according to research by surveyors.

“The Land Market Survey by the Royal Institution of Chartered Surveyors (RICS) indicated land values had trebled in less than a decade.

“It calculated the average price of land in Scotland was now £4,438 per acre.

“Surveyors reported the price was being supported by demand from farmers and investors.

“Their report predicted further price increases were likely, with the market “far from finding its level”.

The press release from RICS claims that,

“£7,440* per acre across the UK, hitting a record high for the eighth consecutive period. The cost of land is now more than three times that of the same period in 2004 when an acre cost just over £2,400.”

That asterisk is important. It was not there when I first looked at the press release but was added after I phoned the RICS press office to ask what the following footnote referred to. The footnote says,

* Opinion based measure, £ per acre (based on median surveyor estimates of bare land only containing no residential component, not subject to revision).

Looking at the Rural Market Survey report, itself (which is only available if you register as a RICS site user), things become clearer. The basis for the claim that “prices had trebled in less than a decade” is based upon “an opinions based measure (which is a hypothetical estimate by surveyors of the value of pure bare land).”

It is also a UK wide figure and thus says nothing about the farmland market in Scotland.

The “RICS spokesperson” states, in the RICS media release that,

“The growth in farmland prices in recent times has been nothing short of staggering. In less than ten years we’ve seen the cost of an acre of farmland grow to such an extent that investors – not just farmers – are entering the market. If the relatively tight supply and high demand continues,  we could experience the cost per acre going through the ten thousand pound barrier in the next two to three years.”

What she really means is that the cost of an acre of land according to the opinion of her members. And when she speculates that the cost per acre could go through the £10,000 barrier in the next two or three years – that too is simply the opinion of those with a vested interest in precisely that outcome.

And that trebling only relates to England and Wales, not to Scotland.

Oh, and finally, that £4438 per acre price that the BBC reports the RICS “calculated”?

That’s just an opinion too but reading the press reports today you would not know.

So why does the media give such prominence to the self-promotional opinions of vested interests?

In this Guest Blog, poet & novelist John Burnside reflects on the land, nature, folk and elite power. John’s most recent book is a collection of short stories, called Something Like Happy (Jonathan Cape). This essay was first published in The Scotsman on 29 June 2013 and is published here with their kind permission.

Should Scotland’s environmental policies be governed by the rich and powerful?

John Burnside 29 June 2013

IN 1997, I gathered with a group of other writers at the Edinburgh Festival, gamely sporting my yes/yes badge, to pledge support for a Scottish Parliament. At the time, I had no great expectations of the radical changes I thought were needed, here and elsewhere; what I hoped, however, was that a devolved Scotland might moderate, or even abandon, the high-handed approach to government that I had come to know and despise under Thatcherism. The gathering that day was jovial, with much joking and not a little self-consciousness for some. I had only been back in Scotland for a couple years, having moved south at the age of ten when my father got a job at Corby Steelworks and, at the time, I felt a little uncertain of the territory. I had no party-political affiliations and the idea of nationalism had always rendered me queasy. Still, crossing my fingers, I pledged my support and cast my vote, then stood back to see what would happen.

Now, we are about to do the referendum ceilidh all over again, only this time the stakes are higher. The trouble is, none of the changes I want to see are even on the agenda. Well, they are, in the usual lip service, greenwashed fashion, but none of it is real.

Meanwhile, I am much the same this time around as I was then: unaffiliated, highly sceptical and wondering which compromise to make in order to avoid the lesser of two evils. I would like to be affiliated: like many people, I suspect, I am still waiting for a green party in Scotland worthy of the name, but I see no sign of that for the near future and, to be frank, I want to weep when someone like Al Gore pops round for the day to praise the current government’s supposed environmental credentials (built entirely, and rather ironically, on a flawed energy strategy that, while it lines the pockets of landowners and developers, is devastating our wild places).

In fact, it is a mark of how compromised we are that my political wish-list for today is much the same as it was in 1997: a sound energy policy based on energy saving and informed research into genuinely renewable technology; land uses governed by environmental principle, rather than developer whim; meaningful, by which I mean radical, land reform; clear policies to eliminate, or at least reduce, pollution, (rather than craven kowtowing to the interests of neonicitinoid producers); and democratic social policies aimed at effecting equality of opportunity, not ‘community’ initiatives that sneak ‘Big Society’ in through the back door. Central to all of this, and the chief cause of our failed environmental policies to date, is land use. Or rather, land ownership.

In his 1931 polemic, Natural Prosperity, the Australian economist, RF Dyson, wrote: “It is just as impossible to secure to each his full earnings and at the same time to treat land as wealth, as it is to make an omelette without breaking the eggs. For first of all the private ownership of land means the private collection of its rental value. Since the rental value, which is always collected in money, is purely a community product, incomes gained through its private collection are as morally indefensible as incomes gained through common burglary…theft is morally wrong because it enables some to live on the labour of others. The private collection of land rent is worse than burglary because it is a continuous and increasing theft, and also it keeps opportunities unequal. That is economically wrong because incomes gained in that manner are not limited by the natural productive power of the recipients, and consequently a few people receive incomes far in excess of their needs.”

If we add in the continuous and increasing theft that is the current agriculture/energy subsidy system, Dyson could be talking about Scotland today – which is not to say that all landowners in Scotland are thieves. There are many who, in the context of current practice, are both responsible and, given the temptations, restrained in the uses they make of the land. The fact remains, however, that because of the way land is owned, and because the subsidy system throws public money – our money – at any business interest that can afford the consultancy to complete the appropriate forms and doctor the Environmental Impact Assessment, (should this even be called for), the fact remains that it is the larger landowners, along with developers and corporations, who dictate Scottish environmental policy, such as it is.

There can be no more obvious illustration of this than the Menie scandal. There is not room, here, to rehash all the details, but one clear fact remains: this was a defining, even textbook case of how to override local democracy, environmental issues and the basic rights of local residents.

On the environment issue, The Scottish Wildlife Trust’s objection was clear: “The very high nature conservation value of this coastline is recognised at both a European … and national level … indeed, the whole stretch of coastline hosts a rich assemblage of specially adapted higher and lower plants and other wildlife, including a diverse breeding bird community and otters. Of even greater concern [is] the destruction of over a third of Foveran Links Site of Special Scientific Interest (SSSI), which is important nationally for both its biological and geological features.” As we know, these concerns were ignored by Holyrood. The billionaire developer would come first; local people, and their environment, came nowhere.

It would be foolish to suggest that this government is any more cynical or undemocratic than many others; for some reason, governments do tend to pander to the rich and powerful. Nevertheless, it’s galling when even our supposedly ‘green’ policies are blatantly shaped by the interests of landowners and developers. Take wind energy, for example. In 2012, the Spanish Ornithological Society, having conducted an independent study on the impact of turbines on birds, said: “The more than 18,000 wind turbines [currently operating] in Spain, could be causing an annual mortality of birds and bats [of] between 6 and 18 million individuals.”

Researchers working on raptors, migrating birds and bats in the United States have called for a moratorium on wind farms or, at the very least, clear guidelines and regulation that would help lower the number of birds and bats killed. With this in mind, surely it would make sense, in a country so fanatically committed to Big Wind, to do all we can to protect birdlife – but in Scotland, turbines all too often go where landowners want them to go, because turbines attract huge subsidies, (the system was, in fact, originally modelled on agricultural subsidies). As The Guardian reported recently: “The boom in onshore wind power, likened to a “new industrial revolution”, is being dominated by a small number of private landowners who will share around £1bn in rental fees over the next eight years. Rental payments vary and are secret but…landowners can now expect £40,000 a year “risk-free” for each large turbine erected on their land. Those set to benefit include senior members of the Royal Family and the Forestry Commission in Wales and Scotland.”

That our energy and land use policies should be governed by the most brutal profit motive is tragic, but this subsidy-grab is just the latest in a long history of moral and environmental crimes. In 1808, tenant farmer named Robert Burns penned these satirical lines:

Farmin, and fencin, an a

Ploughin, and plantin, an’ a

Beha’d how our kintry’s improvin,

An’ poverty wearin awa

Since then, we have continued ‘improvin’ the land for the benefit of the richest and the least socially productive, to the detriment of what should have been a shared environment. As long as it is in the interests of corporate landowners, faux-green energy companies and billionaire developers, Scotland still means business.

However, as we ask ourselves again, over the coming year, what Scotland ought to mean, and what we ought to be doing to protect the quality of life of all (human and otherwise) who live here, we must finally begin the work of making Scotland free for all, not just by redistributing a few acres here and there in ‘community’ buy-outs, but by revolutionising our ideas of how land could be used, not for the profit of a few, but for the delight of all.

 

The tortuous negotiations over the next Common Agricultural Policy reached a conclusion of sorts today although some of the details remain unclear. This morning BBC Radio Scotland invited me to speak about the implications of “capping the CAP” – an upper limit on what any claimant can receive in EU farm subsidy. You can hear the interview here.

This is a very short blog to highlight the key issues covered in the interview.

The current distribution of EU farm subsidy in Scotland is grossly unequal as the graph above shows. (see previous CAP blog) for further discussion). The top 10% of farmers receive 48.6% of the total 2011 Scottish farm budget of £710.4 million.

This is not surprising since the distribution of agricultural land in Scotland is concentrated in relatively few hands and Scottish farms (average size 107ha) are the largest in the EU. (1) Fully 75% of Scotland’s agricultural area is held by fewer than 9% of farmers in holdings of over 200ha in extent.

As a consequence of this and the operation of the system of Single Farm Payments (a system of transferable “entitlements” to subsidy that have been much abused over the past 10 years), the amount of subsidy received by the top 50 recipients has risen from £22 million in 2008 to £35 million in 2011.

The simple fact is that these 50 people (who include the Earl of Moray, Earl of Seafield, Earl of Southesk, Duke of Buccleuch and Duke of Roxburghe) do not need any of this money but they are the beneficiaries of the system.

There is a proposal to cap farm subsidies at €300,000 (£254,000). Neither this nor the question of whether it is to be mandatory or voluntary have yet been agreed and are to be dealt with separately within the Multi-Annual Financial Framework for the overall budget. (2) In any event, it may have little immediate effect since the Scottish Government seems keen to phase in the new CAP regime over, perhaps, as long as five years.

At a time when welfare payments to the poorest and most vulnerable in society are being capped at £26,000 per year, perhaps it is time to consider capping farmer welfare at a level considerably lower than £254,000

UPDATE 27 June 2013

George Lyon MEP reports in a tweet that capping will be voluntary. He says this is good news. I am not sure why.

Press Release from European Commission on the final shape of the CAP.

UPDATE 28 June 2013

Excellent analysis from Professor Alan Matthews – “A triumph for the Irish Presidency – a damp squib for CAP reform” including the astute observation that “The bulk of the CAP budget will continue to be spent on land-linked payments under Pillar 1 with no obvious rationale other than that to remove them is opposed by the current beneficiaries.”

(1) For detailed analysis of farm holdings see Eurostat – Large farms in Europe.

(2) According to Alyn Smith MEP today, “capping of direct payments is “square bracketed”. Council are adamant that capping should not be mandatory for Member States to apply.  A likely compromise will revolve around degressivity of payments above 150,000 EUR, with Member States deciding on the percentage to be applied.”

 

Image: Jane Lawson, London (Doctors’ Commons) : Judd & Co., 1881

We are pleased to publish this Guest Blog from Professor James Hunter, Emeritus Professor of History at the University of the Highlands and Islands. From 1998 to 2004 he was chairman of Highlands and Islands Enterprise and between 1985 and 1990 he was the first director of the Scottish Crofters Union, now the Scottish Crofting Federation. Until April 2013, he was a member of the Scottish Government’s Land Reform Review Group. The article outlines a radical way forward for reform of agricultural land tenure by moving to a more European model of owner-occupation and freedom to contract in the leasing of land. It makes eminent sense and could be the bold initiative that breaks the current impasse in the debate over agricultural land tenure.

This article was first published in the Scottish Farmer on 15 June 2013 and is reproduced here with its kind permission.

Time for a Lochhead Act?

Professor James Hunter 14 June 2013

In October 1900, Britain’s then Prime Minister, Lord Salisbury, made a fellow Conservative and fellow aristocrat, George Wyndham, Chief Secretary for Ireland – all of it, at this point, still in the United Kingdom. Three years later, Wyndham took through the UK Parliament the legislation that resulted in easily the most far-reaching land reform the British Isles have seen.

By enabling virtually all of Ireland’s tenant farmers to buy their farms and by advancing cash to help them do so, the Wyndham Act, as that 1903 measure is still known, eliminated big estates from Ireland and made the entire country, both south and north of the present border, a place where farms and smallholdings are overwhelmingly owner-occupied.

Might the review of agricultural holdings announced last week by Richard Lochhead, the Scottish Government’s Cabinet Secretary for Rural Affairs and the Environment, do for Scottish tenant farmers what the Wyndham Act did for their Irish counterparts?

To get the answer, it won’t be necessary to wait for the outcome of Mr Lochhead’s promised review. All that will be needed are details – to be revealed shortly – of how the review is to be conducted.

If the Cabinet Secretary opts for a review group representative of all the divergent interests with a stake in this key issue, it will immediately be apparent that a tenant farming right to buy (something that long ago transformed not just Ireland but lots of other European countries) has been ruled out for Scotland.

That’s clear from the record of the Scottish Government’s already established Tenant Farming Forum (TFF). The forum can only deliver on matters on which its members reach consensus. Since both landlords and tenants are represented on the TFF, and since they’re at odds over what’s best for them, the forum has so far delivered little.

A better model for Richard Lochhead’s agricultural holdings review would be the Land Reform Policy Group set up by the late Donald Dewar in 1997. The group, which paved the way for the land reforms enacted during the Scottish Parliament’s first session, consisted not of competing interests but of senior civil servants with the ability to draw as necessary on external (and non-aligned) expertise.

Most critically, the Dewar group was chaired by Lord Sewel, the Minister responsible in the pre-devolutionary Scottish Office for what’s now Mr Lochhead’s portfolio. Lord Sewel made clear what he and colleagues wanted by way of reform – and the group’s task was to work how how these reforms could be delivered.

So why doesn’t Richard Lochhead now set up and chair a similar group of high-ranking officials (drawing on external academic or other expertise as required) whose job will be to tell the Scottish Government how a tenant farming right to buy could be made to work in Scotland? A review group constituted on this basis might investigate:

  • Giving a right to buy to all farmers with secure (so-called 1991) tenancies;
  • Helping purchasing farmers by giving appropriate government backing to mortgage arrangements to be negotiated with banks;
  • Possibly extending similar right to buy opportunities to other (non-1991) tenants.

These measures would ideally be taken forward in conjunction with other land reforms already under consideration, such as expanding the area in community ownership, the overall aim being greatly to diversify Scotland’s land ownership structure by reducing the number and size of big estates and putting an end to the current ownership of more than half the country by fewer than 500 people.

But as well as exploring how to get farm tenants out of the ‘feudal time warp’ (as it’s been described by the Scottish Tenant Farmers Association’s Chair, Christopher Nicholson) in which they’re presently stuck, Mr Lochhead’s review group should look at the possibility of a right to buy for existing tenants being quickly followed by:

  • The repeal of all agricultural tenancy law.

This would create a situation where farmer-to-farmer rental arrangements (whether for a field for a year or an entire farm for ten years) would be on exactly the same basis as, for example, the letting of premises for a shop or some other business.

In the post-reform Scotland, which (like Ireland, Denmark and many other European countries) would be largely owner-occupied, then, there would be complete freedom of contract in respect of letting of land – just as there is with regard to other forms of commercial letting.

This would have the effect, among others, of making it easier for new entrants to get into farming. But the Cabinet Secretary and his review group might also consider helping new entrants further by investigating:

  • The formation of a farmer-led co-operative which would buy agricultural land with a view to establishing on this land a network of differently-sized starter units (of different farming types) which would be let (for five, ten or more years as appropriate) to new entrants renting under freedom of contract arrangements.

Such a co-operative might be pump-primed financially by government – but would thereafter be dependent on its letting income both to cover its costs and to generate an annual surplus sufficient to enable it to add to its landholdings and thus aid, over time, a growing number of new entrants.

Subsequent to getting rid of the plethora of legislation that’s been keeping lawyers and the Court of Session’s Lord Gill & others so busy of late, the one regulatory measure that might be required would be an upper limit on the area of farmland that can be owned by any individual or company – other than the farmer-led co-operative mentioned above.

This upper limit would vary in accordance with land quality. It would have the effect of dismantling and returning to individual farmers some of the bigger in-hand operations which have recently been taking shape on some estates. And it would prevent the re-emergence of something approximating to the sort of estates these reforms would be designed to remove from the farming scene.

There might, however, be no ban on the amount of land an individual might rent on a freedom of contract basis – thus enabling the formation, as appropriate, of large-scale farming enterprises.

And what of the barrier allegedly put in the way of any meaningful land reform by Article One, Protocol One (A1P1) of the European Convention on Human Rights (ECHR)? In fact, A1P1, which has to do with ‘peaceful enjoyment’ of property, need be no barrier at all. As Lord Gill commented in December, when ruling on measures that give crofting communities an absolute right to buy crofting estates, such reforms are perfectly in accordance with A1P1 – provided the Scottish Parliament takes care to ensure that the case for reform is made on clearly stated grounds of public interest.

Over, then, to Richard Lochhead. While it’s clear that his review group, if it were to have the sort of remit suggested here, wouldn’t have an easy job, it wouldn’t (as is shown by the experience of other countries) have an impossible one either. And all that’s required, in the first instance, is for the Cabinet Secretary (who pushed strongly for a tenant farming right to buy when in opposition) to launch the sort of review that shows he’s still committed to the one thing that’ll truly help a group of people who, though they include some of Scotland’s most go-ahead farmers, have for far too long had a really lousy deal.

Politicians holding office can opt simply to administer their departments – which means they’ll have a quiet life and quickly be forgotten. Or they can choose to promote game-changing legislation to which, as in George Wyndham’s case, their name will long after be attached. Time, then, for a Lochhead Act?

 

[UPDATE 30 May 2013 This blog is an edited version of the one published yesterday (pdf copy here) in which I incorrectly argued that there was only one review promised in the SNP manifesto. There were in fact two as explained below. However, this fact does not change the substance of my argument. Why are farm tenancies being removed from the scope of land reform to be dealt with on their own?]

Richard Lochhead, the Cabinet Secretary for Rural Affairs and Environment for the past six years, told a conference yesterday that “the future of land tenure is one of the biggest issues facing the future development of rural Scotland“. Here is his speech in full. He was speaking at a National Farmers Union Scotland (NFUS) seminar entitled A Vision for Land Tenure: 2020. (1)

In his speech he announced a new review of farm tenancy legislation.

Now this is interesting because the Land Reform Review Group (LRRG) has been given the task of coming up with radical proposals to take forward land reform but, in its Interim Report published last week, it said that it would be taking no further interest in land tenure as it affected Scotland’s tenant farmers (see my previous post for a fuller discussion). This was a shock to all those who had submitted evidence on the topic and particularly to tenant farmers some of whom, as the report noted, were “fearful of speaking at open meetings, or even of putting their concerns on paper, because of possible recriminations should their landlord hear they were expressing these views in public.” They thus (mistakenly as it happens) placed some faith in this independent review of land reform to address their concerns. Yesterday, Mr Lochhead announced a separate review of agricultural tenancies.

All of which is rather confusing. The rationale for a separate review was that two separate reviews were promised in the SNP election manifesto in 2011. The relevant part of Lochhead’s speech is as follows.

11. This event is very timely, because we are at an important stage of the government’s work in this area.

12. That work includes two separate reviews, as set out in our election manifesto back in 2011.

13. The first review is the one being run by the Land Reform Review Group, who recently published their interim report.

14. That report set out a range of areas to be investigated more fully during the next phase. The group’s intention is to collect more evidence, by speaking to   those involved at the heart of those issues, before presenting recommendations to the Scottish Government.

15. Meanwhile, the government has also been committed to a separate review of farm tenancy legislation.

He then continues,

22. However there’s one thing I can make clear even today.

23. We were always committed to two separate reviews, and now the Land Reform Review Group has decided to focus on other issues for the remainder of their work.

24. So I want to confirm today that all the issues on farm tenancies raised during the Land Reform Review Group’s work will not be lost. They will be carried forward and looked at very carefully in the farm tenancies review.

I have read the SNP election manifesto carefully and the topic is covered on page 39. It states that,

We will amend the Agricultural Holdings Act to support tenant farmers and will work to encourage new entrants. We also believe that when a farm business is being passed from one generation to the next it should be easier for the successor to build a home on the farm where required.”

So no mention of a review there – simply a clear commitment to amend the legislation which most Governments do by holding a consultation, drafting legislation and introducing a Bill to Parliament.

On the same page, under the heading “Land Reform” it states that,

We believe it is time for a review of Scotland’s land reform legislation. For example, we believe the current period for three months for communities to take advantage of their right of first purchase is too short, and we would wish to see it extended to six months. We will establish a Land Reform Review Group to advise on this and other improvements which we will legislate on over the course of the next five years.”

Scotland’s land reform legislation is the body of statute that emerged from the work of the Land Reform Policy Group chaired by Lord Sewel from 1997-1999. it is all laid out on the Scottish Government’s website and it includes the question of agricultural holdings legislation which also formed an explicit part of the remit of the LRRG (Annex A here). The task of the LRRG is to “review Scotland’s land reform legislation“.

However, the SNP also published a farming manifesto which states that.

We will work with the sector to increase the amount of land available for rent and bring in the legislative changes already proposed and review the effectiveness of the amended act within 18 months.”

The legislative changes referred are now included in the Agricultural Holdings (Amendment) (Scotland) Act 2012 which received Royal Assent on 12 July 2012. The review promised in the farming manifesto is only of this amended Act and does not address the many issues tenant farmers raised with the Land Reform Review Group.

All of which gives rise to a number of questions.

Given that the LRRG has dropped the issue, will the remit of this second review be broadened out beyond a simple review of the effectiveness of the 2012 Act?

Why exactly has the LRRG dropped this topic from the mainstream of land reform?

Why, if farm tenancies were indeed “always” to be the subject of a separate review, was this not made clear at the beginning of the LRRG process?

Why, if farm tenancies were “always” to be the subject of a separate review, were tenants led to believe that the LRRG would be considering these issues, were encouraged to provide evidence and indeed were involved in face to face meetings in the field?

Did Scottish Ministers exert any influence over the LRRG to drop any further consideration of farm tenancies?

Land reform is an integrated programme of work designed to do four things.

1.reform land tenure

2.redistribute land

3. provide a fiscal framework for land & property

4. establish appropriate governance arrangements for land relations

That, more or less, is what the Land Reform Policy Group did in 1977-1999.

Why is the Scottish Government messing around with this issue and passing one of the most pressing land reform issues to another as yet unknown review process to be announced “after the summer break“?

What on earth is going on?

 

(1) two of the presentations given at the seminar are available – Phil Thomas, Chair of Tenant Farming Form and Clive Phillips of Brodies, Solicitors.

UPDATE 30 MAY 2013 2115hrs

The Chair of the LRRG gave a speech to the AGM of Scottish Land and Estates on Tuesday 21 May. It was given from notes and no written speech was published but I understand that she said that the farm tenancy issues was dropped due to “timescales and lack of specialist knowledge”.

The timescale of the LRRG from July 2012 to April 2014 is a generous 20 months. Members & advisers were appointed by Scottish Ministers who presumably were fully aware of what specialist knowledge the members and advisers have. It is reasonable to conclude therefore that the lack of specialist knowledge was by design not accident. The Scottish Government press release of 24 July 2013 states clearly that advisers would be appointed “with expertise in areas such as property and land issues, economics, legal issues, community-led organisations, landownership, forestry and access“.

It is probably quite appropriate that today, within 24 hours of publishing her Interim Report, the Chair of the Land Reform Review Group, Alison Elliot, is giving the keynote address to Scottish Land and Estates AGM at Perth racecourse. (1) No doubt she will receive a warm welcome and a rousing cheer from the landed class and its legal and financial advisers as the latest attempt at kick-starting land reform withers and dies on the vine of complacency and ignorance. See previous blogs on the topic and, in particular the immediately previous one for a foretaste of developments today.

The Land Reform Review Group (LRRG) was announced by Alex Salmond at a meeting of the Scottish Cabinet on Skye in 24 July 2012. On 23 August it’s remit was published and on 8 October the Group’s advisers were announced. Given that nothing had happened on the land reform front for a decade, this development was widely welcomed at least among those who believe that Scotland needs land reform.

Yesterday, the Group published its Interim Report together with an analysis of the evidence submitted to the Group. Following the previous resignation of Professor James Hunter, it was also announced that the one other member with (limited) experience of land reform has also resigned – Dr Sarah Skerrat. She is the co-author of the report along with the one member left from the original Group – the Chair Alison Elliot.

The Interim Report fails to deliver anything meaningful and effectively kills off any prospects of radical land reform due to one significant (and for those unfamiliar with the topic not immediately obvious) and devastating revelation in the report.

wrote at the time the group was established that whether any of the wicked issues like “inflated land values, affordability of housing, succession law, tax avoidance, secrecy, absentee landlordism, theft of common land, land registration laws, common good etc. etc. etc.” got looked at depended on 1) a definition of land reform and 2) the remit of the group. Last August, I welcomed the remit as wide-ranging and I did so because on a straight reading of the words, it was just that. For the avoidance of doubt it is worth re-stating the preamble and three key tasks that the Group was set.

The Scottish Government is committed to generating innovative and radical proposals on land reform that will contribute to the success of Scotland for future generations.

The relationship between the land and the people of Scotland is fundamental to the wellbeing, economic success, environmental sustainability and social justice of the country. The structure of land ownership is a defining factor in that relationship: it can facilitate and promote development, but it can also hinder it. In recent years, various approaches to land reform, not least the expansion of community ownership, have contributed positively to a more successful Scotland by assisting in the reduction of barriers to sustainable development, by strengthening communities and by giving them a greater stake in their future. The various strands of land reform that exist in Scotland provide a firm foundation for further developments.

The Government has therefore established a Land Reform Review Group.

The Group will identify how land reform will:

1) Enable more people in rural and urban Scotland to have a stake in the ownership, governance, management and use of land, which will lead to a greater diversity of land ownership, and ownership types, in Scotland;

2) Assist with the acquisition and management of land (and also land assets) by communities, to make stronger, more resilient, and independent communities which have an even greater stake in their development;

3) Generate, support, promote, and deliver new relationships between land, people, economy and environment in Scotland

The emphasis is mine and I interpreted the three tasks as relating broadly to 1) individuals 2) communities and 3) governance. Others may read it differently of course but it appears to provide a wide framework of analysis. It follows on from a preamble that highlights structural problems, progress to date and community ownership as representing one strand of land reform.

Yesterday that remit was ripped up.

Section 4.4.2 contains the first clue in a passage that tenant farmers across Scotland have reacted to with a sense of anger and betrayal.

This aspect of rural Scotland is clearly problematic and requires sensitive and expert attention. For the LRRG to address these issues would be to interfere with the work of the TFF [Tenant Farming Forum] and to stray considerably away from our remit which focuses on communities rather than relationships between individuals. Having spent time on the issue during the first phase of the review we would be interested in sharing perspectives with the TFF through our advisers as appropriate but we do not intend to report further on this matter, except where it can be addressed within the context of community ownership” (my emphasis).

This a kick in the teeth for Scotland’s tenant farming sector. As the Group noted, some tenants were “fearful of speaking at open meetings, or even of putting their concerns on paper, because of possible recriminations should their landlord hear they were expressing these views in public.” (2) Now they learn that, after patient and diligent engagement with the Group, their concerns are to be addressed by a talking shop in which the lairds have a veto.

But the revelation goes way beyond the immediate concerns of tenant farmers

It redefines the remit of the group as focussing on “communities rather than relationships between individuals“. This redefinition is confirmed by Sections 4.1, 4.2 and 4.3 of the report which interpret each of the three aims in the remit as relating solely to community ownership. Section 4 opens with the claim that,

The group was given a wide-ranging remit which entailed a review of the legislation of 2003 as well as the task of considering how the benefits of community ownership could be extended to more communities through the exploration of new relationships between land, people, economy and environment in Scotland” (my emphasis).

It concludes by announcing that “some more technical issues that are frequently raised in discussions of land reform – the position of the Crown Estates, common good land, taxation and succession” have not been considered but the Group “may do so if they are likely to throw light on the other topics on the Phase 2 agenda.”

So these important topics (not to mention tax avoidance, secrecy, absentee landlordism, housing tenure, land information etc.) will only be considered if they have a bearing on advancing community ownership.

I was thus wrong when I welcomed this wide-ranging remit because I failed to understand what it meant.

Either that or, effectively, the Group has re-written its remit so as to exclude concerns relating to anything other than community ownership.

Has the Scottish government approved of this redefinition or was I alone in having interpreted the remit wrongly? From the Media Release issued, it appears that the Minister, Paul Wheelhouse agrees with the Group that the Review is, in fact, about community ownership.

“The LRRG has made good progress over the past few months as they have travelled across Scotland meeting a wide range of people with an interest in land reform and in an effort to understand how Scottish Government can utilise Scotland’s land and assets to empower Scotland’s communities – both rural and urban.  The interest in the review has been great with the Group receiving over 475 responses to their initial consultation.

 “I now very much look forward to the next stage as the LRRG move into the second phase of it’s work looking at radical options for community land ownership before the final report in 2014.” (my emphasis)

So it must be me then. I just misunderstood the remit. This is not a land reform review group – it is a community ownership review group.

Given the coverage in the media today (a few sentences in the Herald’s farming page and a brief interview with myself on BBC Radio Highland (itself quote a reflection on the marginal significance now attached to land reform), it is clear that land reform is effectively dead as a matter of public policy. That does not reflect my own experience of speaking to thousands of people across Scotland over the past couple of years (during which events less than a handful of people ever appeared to have heard of the LRRG) but it does sit comfortably with elite Scotland’s view of the world.

What makes the report hard to understand is that there are flashes of radicalism like this.

Scotland has significantly large private landholdings and the discretions of ownership allow a few people to make decisions about large parts of the country’s land resource and also in some cases about the options available to people who live their lives on it. While many of these will be good decisions, it is an expression of the material inequality in the country that this situation obtains.”

But then there is a complete and utter failure to say anything at about how this is to be dealt with.

Perhaps it is time that the Rural Affairs, Climate Change and Environment Committee of the Scottish Parliament called the group in for another chat.

Finally, as I have made clear in the past, I remain concerned at the lack of transparency in the proceedings of the Group and in particular its refusal to publish the evidence being submitted to it until April 2014. I thus submitted a Freedom of Information request for this information – something that respondents were made aware was a possibility in the Call for Evidence. I was thus rather surprised to read in Section 2.5 Alterations to timescale the following claim.

Immediately after the deadline for submissions in January, a Freedom of Information request was received that the full set of submissions should be made public. This request was dealt with by the Secretariat but it did have an impact on how the group approached analysis of the submissions. Uncertainty over whether confidential responses would be made public worried some respondents and did nothing to enhance the trust some people felt towards the group or the process.”

For the record I never asked for confidential responses to be released and there is a perfectly legitimate exemption under FoI legislation to cover this. To blame an FoI request for undermining trust in the group is frankly pathetic.

(1) Perth racecourse is on Scone Estate – land subject to a heritage tax exemption for allowing public access (map here).

(2) Interim Report page 14

UPDATE – further media reports.
BBC Highlands & Islands online 21 May
BBC Naidheachan online 21 May
Herald 21 May
Herald 22 May

Today the Scottish government has published a very welcome consultation paper (media release & consultation paper) on the future of allotments. The reform and modernisation of allotment legislation will form part of the forthcoming Community Empowerment and Renewal Bill and this consultation is the opportunity to get the allotment bit of that bill right.

It is significant that the media release is illustrated with a tiny little garden shed and a wheelbarrow – the essence of the spartan and utilitarian idea that was embodied in the Allotments (Scotland) Act 1892 (original version here) which provided the statutory basis for burghs to respond to any “demand for allotments for the labouring population in such burgh….” Section 2(1) This notion of a small plot of land for the labouring classes to grow food has hardly changed in over a century (and of course the ruling class had no need for such legislation being mostly in possession of ample land themselves).

Meanwhile, in the rest of Europe, things developed rather differently. Sure, there are allotments like we have, but there are also other arrangements which provide fuller opportunities for urban dwellers to enjoy life in the garden. Which is why I have included what I think is a fantastic aerial view of my own vision of what allotments could and should be like – a far cry from the pokey patches of ground that allotments consist of today. Please do click on the image to see a larger version.

This is an example of the German Schrebergarten – suburban gardens which can be lived in over the summer and which provide a wonderful refuge for German families. See a previous blog for further discussion on the benefits this creates for children and families including a wonderful video.

My vision of the future is of land around our towns and cities devoted to food-growing, suburban gardens and forests – something like Frankfurt – and further out on the continuum, huts….

Of which more soon.

Meanwhile do respond to the consultation which is open until 24 May 2013.

UPDATE 21 APRIL 2013

The Scottish Government is holding 3 “engagement” events to allow members of the public to discuss the allotments consultation and how it fits into the wider work being taken forward by the Community Empowerment and Renewal Bill.

Friday 3rd May Great Glen House, Leachkin Road, INVERNESS at 1100hrs – 1300hrs
Tuesday 7 May Atlantic Quay, 150 Broomielaw, GLASGOW 1400hrs – 1600hrs
Thursday 16 May Saughton House, Broomhouse Drive EDINBURGH 1400hrs – 1600hrs

Those wishing to attend are requested to email AllotmentConsultation2013@scotland.gsi.gov.uk at least 72 hours before the event to allow the necessary security arrangements to be made.

Above – Richard Lochhead at NFUS AGM. Image: Paul Watt Photography

The future shape of the Common Agricultural Policy for 2014-2020 has become clearer following the EU budget summit on 7 – 8 February and the European Parliament’s adoption of a negotiating mandate with the Commission and Council on 4th February.

One possible conflict between the Parliament and the EU leaders is on the subject of capping direct payments to farmers (see my previous Nov 2011 blog on the topic). As the Parliament noted,

The distribution of direct income support among farmers is characterised by the allocation of disproportionate amounts of payments to a rather small number of large beneficiaries. Due to economies of size, larger beneficiaries do not require the same level of unitary support for the objective of income support to be efficiently achieved.” (1)

MEPs voted to cap direct payments paid to any one farm at €300,000 with additional reductions in payments for those receiving over €150,000.

At the EU budget summit, however, European leaders agreed that,

Capping of the direct payments for large beneficiaries will be introduced by Member States on a voluntary basis.” (2)

This difference between the Council of Ministers and the Parliament will be one of the many items to be resolved over the coming months.

As far as Scotland is concerned, agriculture is devolved. If capping is to be left to member states to decide, then which way will Richard Lochhead and the Scottish Government decide to proceed? In Scotland, the amount of farm subsidy paid to the top 50 recipients increased from £22m in 2008, £24m in 2009, £27.6m in 2010 and £35m in 2011. The existing subsidies are allocated in a very unequal manner as the graph below shows. For 2011, the top 10% of farmers received £345 million – 48.6% of the total subsidy pot of £710.4 million. Over two-thirds of subsidy goes to the top 20% of farmers.

Were payments to be capped, this would apply to only the £500 million of so-called “direct payments”. Under the €300,000 cap proposed by the Commission and agreed by MEPs, this would result (based upon 2011 figures) in a clawback of £35 million from the 484 recipients of the largest subsidies (7% of the £500 million of direct payments).

Were a more reasonable cap to be adopted (say a maximum of £100,000 per farmer) then the amount that would be clawed back from the 813 farmers who receive more that this would total £53.9 million. (over 10% of the £500 million of direct payments).

This is money that could be used to support new entrants to farming and supporting local food schemes such as the Fife Diet.

Recent surveys of opinion have shown that the majority of Scottish farmers want a ceiling on the amount of subsidy any one farmer can receive. (3) Whether capping is left to member states or not is yet to be decided. But if it is, then Richard Lochhead has a decision to make and it will be interesting to watch what he decides to do. He is very close to the farming lobby.

At the National Farmers Union of Scotland AGM last week, he made the startling admission that for the past six years “I have had the honour of being your representative in Government”. (4) The last time I looked, Richard Lochhead MSP was the representative of the people of Moray and as a Minister in the Scottish Government he represents the interests of the people of Scotland.

It is always a danger that Ministers are captured by elite groups and the NFUS is both a powerful lobby group (what other organisation would attract 2 UK Cabinet Ministers and 2 Scottish Ministers to its AGM?) and is further dominated by the interests of the larger farmers and landowners who (it would appear) Mr Lochhead is in Government to represent.

As I say – it will be worth paying close attention to how this question resolves itself over the coming months.

(1) Amendment 8 to Regulation recital 15

(2) para 65 of Conclusion of 7 – 8 February 2013 EU Summit

(3) See Alyn Smith MEP consultation results and Scottish Government consultation

(4) Speech to NFUS AGM 12 February 2013

These words were spoken by Angus Stewart when he appeared before the Napier Commission to give evidence as the very first witness on Tuesday 8 May 1883. He wished an assurance that, as a consequence of his evidence, he would not be evicted by his landlord.

A report by Robbie Dinwoodie in the Herald this morning claims that the Scottish Government is still to decide whether to appeal a Court of Session ruling (Salvesen v Riddell 2012) that Section 72 of the Agricultural Holdings (Scotland) is ultra vires and in breach of Article 1 of Protocol 1 of the European Convention on Human Rights. If the Scottish Parliament wishes to defend its own legislation, action needs to be taken otherwise it will be struck down in accordance with Lord Gill’s ruling.

I have blogged on this case before in these two posts here (on the politics of it) and here (on the legal case itself).

Meanwhile, I though it might be worth reproducing the opening page or so from Chapter 18 of The Poor Had No Lawyers in which the background to this case is explained.

“On 3 February 2003, around one hundred tenant farmers across Scotland received eviction notices ordering them to quit their farms. It was the culmination of a hectic few weeks of such notices being served. On a day of particularly severe winter weather, every effort was made to deliver the legal papers. Some farmers, forewarned of the move, battened up their letterboxes but to no avail. These tenants all leased land by means of limited partnership tenancies, a legal device which had been constructed by lawyers to prevent tenant farmers enjoying security of tenure. The draconian activity was provoked by the fact that the next day, the fourth, an amendment was to be tabled in the Scottish Parliament to a new agricultural holdings act that would give such tenants security of tenure and the right to buy their farms if they should ever come up for sale. The amendment was necessary to protect tenants against further eviction notices issued between that date and the passing of the act.

The Agricultural Holdings (Scotland) Act of 2003 is one of the unsung successes of the land reform programme introduced by the Scottish Parliament. It provides a number of important benefits to tenants including a right to buy when the farm is sold, rights to diversify land use, rights to assign the tenancy and improvements to compensation arrangements when a tenant leaves the farm. George Lyon MSP was one of its architects and, in the debate that passed the act, he had this to say:

For too long, tenant farmers have played the game with the deck stacked against them. Until now, the landlords have held all the aces in negotiations. The bill waters down dramatically the powers of landowners and their factors. Those powers must be watered down, because landowners have seriously abused the provisions of the Agricultural Holdings (Scotland) Act 1991. The partnership tenancies created by that act were nothing more than a legal device that left tenants with no security and at the mercy of landlords, who could kick them out at any point during the partnership agreement.

Write-down agreements robbed tenants of the value of their investments and, to rub salt into the wound, the tenants usually ended up paying rent on their own investments. Post-lease agreements were designed to allow landlords to dump their responsibility for repairs, renewals and provision of fixed equipment on tenants.

The use of Queen’s Counsel and expert witnesses in rent arbitration meant that the cost of arbitration for tenants was prohibitive. The most recent rent arbitration that was carried out on Arran, of which the minister might be aware, cost £12,000. If a landlord has to balance that cost over 60 farms, because the precedent is set when the rent goes up, the cost is affordable, but if an individual tenant on a three-year rent review has to spread the cost of £12,000 over three years, it is a no-brainer – they do not do it. I believe that the actions by landlords and factors that I have described drove a coach and horses through the 1991 act and left tenants powerless to fight for a fair and just deal.

I hope that the bill will end that abuse. It will shift the balance of power back to tenant farmers and will be fundamental in ensuring the future of the tenant farm sector. The creation of two new tenancy vehicles and the provisions allowing diversification should reinvigorate the tenanted sector and act as a further spur to rural development.” (1)

In no other land use is the struggle between the landless and the landed so marked and of such long standing as agriculture. People have always been farmers out of necessity and farming requires land. Any analysis of farming is likely therefore to shed much light on land relations.”

(1) The full transcript is available here in the Official Report 12 March 2003. George Lyon’s comments are at Col. 16386

 

I am grateful to Lallands Peat Worrier for his comments on a draft of this blog.

A dispute over a farm in East Lothian may be responsible for the second time in two months for the provisions of an Act of the Scottish Parliament being declared unlawful and struck from the statute book due to a breach of the European Convention on Human Rights (ECHR). In a legal ruling which has had little publicity beyond the specialist pages of legal newsletters and the farming press, Lord Gill found that “the appellant’s rights under Protocol 1, article 1 are violated by Section 72 of the 2003 Act”. (1)

The case concerns the Agricultural Holdings (Scotland) Act of 2003 which, among other things, provides tenant farmers who occupy land under “secure” tenancies with a right to buy their farm if and when it is ever sold. (2) For many years prior to 2003, no new “secure” tenancies had been created. and landowners, instead, made new tenants partners in Limited Partnerships (LPs). These LPs were granted the tenancy as “secure tenants” but by stipulating that the LP would be dissolved at a specified date, such a structure was effectively a device for circumventing the provisions of the law providing security to tenant farmers.

When the Bill was going through Parliament, there was anticipation that such tenants would be granted secure status. On 3 February 2003, a date that became known as the “night of the long knives”, around 200 tenants were served with notices of dissolution of the LP – effectively an eviction notice. The next day an amendment was tabled in Parliament to provide retrospective security of tenure to all tenants who had been served such notices. This became Section 72 of the Act.

One such tenant was the partnership of John and Andrew Riddell of Peaston Farm, East Lothian. They were served notice on 3 February 2003. Under Section 72, the Riddells applied to the Land Court in 2008 to be recognised as secure tenants and won their case in 2010. (3) During the land court hearing, Counsel for Alastair Salvesen, the landlord, made clear that he did not seek to invoke the ECHR.

Having lost the case, however, he appealed to the Inner house of the Court of Session and was successful in having breach of Convention rights as a new ground of appeal. The Court has ruled in Salvesen’s favour and found the Agricultural Holdings (Scotland) Act 2003 to be in breach and thus outwith legislative competence. A referral has been made to the Advocate General under Section 102 and the action is likely to move to the Supreme Court.

It was bound to happen eventually – the inevitable consequence of a “supreme” UK Parliament and a “subordinate” Scottish Parliament, a creature of statute and thus constrained by the terms of the Scotland Act. Section 3 of the Human Rights Act 1998 provides that where a court finds that any legislation from the UK Parliament is in breach of Convention rights, it may make a “declaration of incompatibility”. This obliges Westminster to do nothing at all to remedy the breach.

The Scotland Act, by comparison states boldly in Section 29 that an “Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament”. A breach of Convention rights is one example of an Act being outside competence. Thus, on the face of it, the Supreme Court or the Court of Session can strike down an Act of the Scottish Parliament. This happened for the first time in February 2012 (Cameron vs Procurator Fiscal ) when a provision of the Criminal Justice and Licensing Scotland) Act 2010 was struck down. The wider policy issues in relation to the Agricultural Holdings Act are discussed in my previous post.

This unbalanced treatment of laws passed by the UK and Scottish Parliament has always been one of the weaknesses of the devolution settlement. It has been evident, for example, that human rights has all too easily been invoked during the consideration of bills in the Scottish Parliament. A number of land reform statutes, for example, were watered down due to fears of a human rights challenge and the ultimate fate that may thus await any Act that was subsequently found to breach Convention rights. It has resulted in Scottish legal drafting being rather more cautious and timid that might have been the case with any equivalent statute in the UK Parliament.

This dramatic legal development comes at a sensitive time with a recent history of friction between the Scottish Government and the Supreme Court. It is right that human rights are observed and that laws are subject to judicial intervention. Unfortunately in this case, not enough was done early on to prevent landowners circumventing the law. Attempts to do so retrospectively have now proven unlawful.

It is now time for the Scottish Government to decide whose side it is on in the unequal class struggle between landlords and tenants.

(1) Salvesen vs Riddell [2012] CSIH 26

(2) Secure tenants are those whose tenancy is governed by the Agricultural Holdings Act of 1991 and which is heritable and perpetual provided certain statutory obligations are met. Many tenanted farms have been held by the same family for well for over a century.

(3) Salvesen vs Riddell, Land Court ruling

UPDATE 4 OCTOBER 2012 Andrew Riddell died on 2 October 2012. STFA Press Release