Following the publication of the Land Reform Review Group‘s final report in May, the Scottish Government has committed itself to the introduction of a Land Reform Bill in the current Parliament.
The report (hard copies of which are now available from the Scottish Government) provides an intellectually coherent framework for land reform designed to make the ownership of urban, rural and marine land and property serve the public interest and the common good through increased transparency, accountability and democracy.
The Land Reform Bill provides an opportunity to implement some of the specific recommendations in the report and to put in place a statutory enabling framework that will enable key reforms to be taken forward in future.
What I am presenting here is merely an outline of what the Land Reform (Scotland) Bill 2015 should look like. A key consideration in deciding what might be included is the time necessary to develop detailed proposals. Some of the Review Group’s recommendations require significant further work before any legislation can be drafted.
In addition, some measures will be the subject of separate legislation including agricultural tenancies, housing, succession and wild fisheries and are thus not included here. Finally, it should be noted that much of the land reform agenda does not require legislation (at least in the short-term). Future blogs will flesh out the detail behind some of these proposals.
Chapter 1 Land Information, Valuation and Registration
1. Establish a national land information system providing open and transparent data on the ownership, value and use of every parcel of land in urban and rural Scotland. Such a system will pull together data currently held and administered in separate places such as the Scottish Assessor, Registers of Scotland, Historic Scotland, Marine Scotland, Scottish Natural Heritage and local authorities.
2.Update the data held by the Scottish Assessor to include site values and improvement values for all domestic and non-domestic land and property in Scotland. This should include all land that is currently not included on the valuation roll such as agricultural and forestry land. Bill should make provision for a mandatory annual valuation of all entries. Any reform of council tax and non-domestic rates or introduction of a new system such as land value taxation will require up-to-date valuations for all land both to inform policy and to provide transparency on who pays and who might be exempt. Even if exemptions continue or rebates are given, a universal valuation will enable policy-makers and the public to assess the cost of any such measures.
3. Introduce a protective order mechanism as an amendment to the Land Registration etc. (Scotland) Act 2012 to allow the public to register areas of common land and prevent them from being “land-grabbed”.
4. Make it incompetent for any legal person not incorporated within the jurisdiction of an EU member state to register title to land in the Register of Sasines or Land Register.
Chapter 2 National Land Policy
1. Provide a statutory basis for a National Land Policy taking full account of international best practice.
Chapter 3 Compulsory Sale and pre-emption
1. Introduce a new power of compulsory sale to address the persistent challenge of vacant and derelict land. Unlike the power of compulsory purchase, a compulsory sale order would compel a landowner to sell land to a third party in circumstances where land is not being used.
2. Introduce a right of pre-emption over land to be exercised by the Scottish Government, its agencies and local authorities where this is in the public interest.
Chapter 4 Community Land Rights
1. Establish a Community Land Agency with a range of powers to facilitate negotiation between communities and landowners and to promote, support and deliver a significant increase in local community landownership.
2. Introduce new community land rights as outlined in Figure 17 of the Report.
Chapter 5 Common Good
1. Further to proposals already included in the Community Empowerment (Scotland) Bill, introduce a statutory definition of common good, a statutory right for communities to manage their own common good fund and a statutory right for communities in Scotland’s burghs to recover title to their common good assets.
Chapter 6 Crown Rights
1. Abolish all remaining Crown property rights in Scotland that are not currently administered by the Crown Estate Commissioners and replace them with appropriate statutory arrangements.
2. Nationalise the Crown’s property rights in the foreshore and seabed and set up a statutory framework for transferring rights as appropriate to local authorities and local communities.
Chapter 7 Land & Property Commission
1. Establish a Scottish Land and Property Commission to provide an ongoing focus on all aspects of Scotland’s system of landownership including the provision of advice and initiation of research, monitoring of public policy as it interacts with the system of land and property ownership and keeping under review the Scottish Government’s programme of land reform.
Chapter 8 Miscellaneous
1. Introduce a statutory right for the public to become members of charitable bodies that own substantial areas of land (such as on the Isle of Bute, Applecross and Atholl Estate).
3. Provide a statutory basis for imposing a ceiling on the maximum extent of land that can be owned by any one beneficial interest. The precise nature of such a provision to be the subject of secondary legislation.
Last week BBC Scotland’s new Scotland 2014 current affairs programme took a look at land reform. The last time that BBC Scotland ran a studio discussion on the topic in its current affairs TV output was (if I recall correctly) in 2000. Since then BBC Scotland broadcast a documentary (The Men Who Own Scotland) on aspects of land reform in January 2014.
One of the persistent problems with land reform is how the media frame it almost exclusively as an issue concerning communities in the Highlands and Islands. (1) As the recent report of the Land Reform Review Group makes clear, reform in the relationship between society and land involves a wide-ranging agenda including housing, fiscal matters, public rights, and urban renewal. Indeed of the 62 recommendations in the report, 31 deal with urban issues (including some that also deal with rural issues). Community interests in particular are as relevant in urban areas as they are in rural ones.
When the producers of Scotland 2014 approached me to take part in the programme, I emphasised this point. They said that they would be doing filming in the Outer Hebrides and so I suggested that they film me discussing urban matters on a parcel of derelict land at the Waterfront on Edinburgh. The land is owned by a company in the British Virgin Islands. I wrote a blog about it in November 2012. This would have provided the opportunity to talk about offshore secrecy, community rights to acquire and use land, the failures of the existing volume house-building model, the failures of the existing land taxation system, the Community Empowerment Bill’s right to use proposals, majority land assembly etc. All these are topics covered by the proposed land reform agenda and all affect hundreds of thousands of people across Scotland.
This was agreed but in the end the idea was dropped and I was invited on the show as a studio guest with Murdo Fraser MSP. We talked about a very limited range of matters for 3 minutes and 37 seconds. As I tweeted following the broadcast,
(1) For the avoidance of doubt I fully support the community landownership movement.
On 7 June 2014, the Minister for Environment and Climate Change, Paul Wheelhouse MSP, addressed the Annual Conference of Community Land Scotland at Sabhal Mòr Ostaig on the Isle of Skye. In the most significant speech on land reform since Donald Dewar’s McEwen Lecture in 1998, he provided the Scottish Government’s first substantial reaction to the report of the Land Reform Review Group which was published on 23 May 2014. The text of his speech is reproduced below. A pdf copy is available here.
Good morning! Madainn mhath. I hope that everyone is suitably refreshed after last night’s AGM and conference dinner.
I’m sure that most, if not all, of the land reform issues were solved over dinner, along with most of the worldwide issues as well.
I just hope that someone wrote the solutions down…
…and can I maybe have a copy?
I am particularly pleased to address you at Sabhal Môr Ostaig – which I know well from my consultancy days.
The title for this year’s conference is “Shaping Change – Towards 1 million acres”.
I’m delighted to have been invited to talk to you this morning on what the Scottish Government plans are to help meet this target, which was announced by the First Minister at last year’s conference.
But before I launch into that, it might just be worth reflecting for a minute on just how much everyone in this room has achieved.
In the fringes of an EU meeting, I was talking to one of my counterparts about the community land movement here in Scotland and how it has grown and developed over the last 15 years.
His response was that this was – and I quote – a “social revolution”, something I have to agree with and something that I am immensely proud of. I am proud that these changes are happening here in Scotland and that the government I am a member of has a played a key role in facilitating this change.
Community Land Scotland’s recently published economic indicators report makes it clear that models of community ownership work.
The study, which involved the 12 comunities who had owned land for more than 5 years, highlighted several key facts.
Between them, they have upgraded 151 houses, built 6 new houses themselves and a further 33 in partnership with others.
They have released a total of a further 141 plots of land for housing development, which has contributed significantly to the positive population trends evident in many communities.
In addition the communities studied have redeveloped 20 other estate buildings for a variety of uses.
It is often argued that community ownership threatens investment, but the study counters this, with the 12 community owners annually contributing significantly to local employment and the local economy with over £2.5m spent on staff and local contractors in 2012/13 alone. The study estimated this was an increase of five times the comparable figures at time of the land’s acquisition.
Direct staffing over this period has also increased from 22 employed at the time of acquisition to 103 in 2012/13, or in other words, direct employment more than quadrupled.
The 12 estates have seen their turnover increase 2 ½ times over – that is rising from £1.7m at acquisition to £6.1m in 2012/13.
Collectively – to date – they have installed almost 7MW of renewable energy capacity.
Community ownership also delivers outcomes that can neither be delivered by private ownership nor by government.
Before I set out the Scottish Government’s vision I want to read out a quote to you.
“Land, which is a necessity of human existence, which is the original source of all wealth, which is strictly limited in extent, which is fixed in geographical position
“Land, I say, differs from all other forms of property, and the immemorial customs of nearly every modern state have placed the tenure, transfer, and obligations of land in a wholly different category from other classes of property”.
Any guesses on who said this? It might surprise some to hear it’s a short extract from a speech by Winston Churchill from 1909; where he goes on to say…
“It is not the individual I attack; it is the system. It is not the man who is bad; it is the law which is bad.
“It is not the man who is blameworthy for doing what the law allows and what other men do; it is the State which would be blameworthy if it were not to endeavour to reform the law and correct the practice”.
To me this demonstrates that the debate on land, and how land is used and contributes to the public interest, has always been of importance to those that take the time to think about it.
Over 100 years later, we are still grappling with the very issues Winston Churchill identified as being important. It is in that contextI want to set out Scottish Government’s vision for land ownership in Scotland.
Our vision is for a fairer, or wider and more equitable, distribution of land in Scotland, where both communities and individuals have access to land.
I have said it before, but I feel Scotland is on a journey to delivering land reform.
My colleagues and I believe the nation’s land should be used to benefit the people and environment of Scotland and to deliver sustainable economic growth with due regard for impacts on the environment. We believe that the land of Scotland should support improvement of the health and wellbeing of communities across Scotland. I share the vision of many that Scotland’s land should benefit the Common Good.
To fulfil Scotland’s potential, this Government believes we need to build a society with greater diversity of land ownership. As I have said before, if I was tasked with designing a system of land ownership from scratch, I certainly would not design a system where 0.008% of Scotland’s population owned half the private land.
Our society will thrive when communities and individuals have access to land to fulfil their aspirations and needs.
It will thrive when our land can support business and employment in urban and rural areas, and for provision of community infrastructure, such as housing and green space.
Clearly,this includes community land buy-outs to achieve greater distribution of land to communities, opportunities for sustainable development and to realise increased economic vitality and employment.
This aspiration for greater community ownership is sometimes portrayed as pro community and anti-private ownership. This is simply not the case.
As concentration of ownership decreases there will be room for both more community owners and, I believe, more private owners too.
It is clear that land reform in Scotland is not something solely for the Highlands and Islands, or rural Scotland.
It is for the whole of Scotland.
We need to take land reform to urban areas to tackle the blight of derelict land in our cities.
We need to encourage community groups in our cities and rural towns to take control of their own destiny and build the sort of sustainable communities that they want future generations to be proud of.
When people read the Land Reform Review Group’s report, its reflection on housing and urban Scotland may have come a bit of a surprise to some.
For most of us, our home and maybe, if we are lucky enough, a garden is the extent to which we would expect to own any land, and as well know, for many even this modest goal is out of reach.
The ratio the review group highlight, on the change in the price of housing relative to income since the 1930’s, is a clear reminder that change is ever present and affordability has deteriorated over time.
They associate at least some of this change in land values with successive governments’ land related policies.
This needs to be interrogated further, but it does raise the relevance of land to us all, through its impact on the supply and affordability of housing.
In this issue, we recognise the need to tackle the housing market to ensure that housing is available, affordable and sustainable, across the country.
The Scottish Government is committed to the provision of affordable housing across Scotland – working flexibly and in partnership, and using innovative approaches to maximise investment.
Funding for the 30,000 affordable homes over the lifetime of the Parliament is on track.
In the four year period April 2012 to March 2016, this Government plans to invest £1.3 billion in affordable housing. At least 20,000 of the 30,000 target will be in the form of homes for affordable social rent.
Resource Planning Assumptions have been allocated to each Local Authority Area to provide affordable housing with local partners.
Higher subsidy levels are available in rural areas where a 3 person equivalent house in the West Highlands, the Island authorities and remote rural Argyll can be subsidised up to a level of £72,000 per unit as compared to £62,000 for a house meeting higher energy standards.
It is recognised that self-build plays a key role in Scotland’s housing supply system, particularly in rural areas.
We recognise that the availability of lending to support self-build projects in Scotland has been restricted, both in terms of the overall number of active lenders and the terms on which self-build mortgages are offered.
Reflecting this, housing colleagues are working a self-build loan pilot project to be launched later this summer.
The Scottish Government has provided £4 million of loan funding to the Highland Small Communities Housing Trust for a “Rural Rent to Buy Pilot Scheme”.
This is aimed at supporting first time buyers on modest incomes to fund the deposit on a new home while also stimulating the affordable housing market.
The Trust works with those eligible self-builders, who are on modest incomes and unable to raise the deposit for a mortgage, to construct of new build properties on behalf of the identified or prospective owner.
The prospective owner rents the completed property for a period of 5 years from the Trust, with a proportion of rent being set aside to assist the prospective owner to build up a deposit to allow the property to be purchased at the end of the 5 year period.
The Scottish Government has also made available an Empty Homes Loan Fund to provide loans to organisations in order to help them renovate empty homes and make them available as affordable housing.
To date, £4.5 million has been offered, or an increase over the £4 million originally set for the fund. The projects started on 1 April 2013 and over the ten-year life of the fund, up to 478 houses could be refurbished.
In my own portfolio, the Croft House Grant Scheme provides grant assistance for the construction or improvement of croft housing.
The scheme has a budget of £1.4 million for 2013-14 and it enables 60-70 croft housing units per annum to be constructed or refurbished.
Scottish Government is committed to a review of the grant scheme, but it is not intended to involve provision of loans which the private sector is better equipped to provide.
However, it is recognised that rural housing needs additional policy solutions to meet need and there are a number of individual pilots and processes being developed to support rural housing.
We will continue to review and monitor the degree to which policies are successful and to assist Local Authorities to deliver housing in rural areas where their Strategic plans identify needs.
We need to be clear on how we want the ownership and use of the land of Scotland to be tailored to fit the needs of future generations.
I’m not talking about the sort of “land grabs” that some quarters have been suggesting.
Far from it.
How we change the pattern of ownership and use of land in Scotland is something that everyone has a stake in and needs to take responsibility for.
The Scottish Government, as one of Scotland’s largest landowners, is active in exploring opportunities for creation of new community ownership projects through appropriate transfers of ownership from the Scottish Government estate.
People that live on Scottish Government’s 58 crofting estates, broadly speaking – or so I am told – view us as a good landlord, and when probed on this question the answer it is because we are seen as somewhat ‘benign’.
I believe that our tenants should have higher expectations and higher aspirations for themselves. I hope that they are inspired by other community owners to approach Scottish Government and take control of their own future.
We recognise that government has not, in this respect, always been as enabling as communities might need.
In future, we aim to foster a constructive process where communities actively want to take on the opportunity of shaping their future.
It has been just over a fortnight since the Land Reform Review Group published its final report, and the recommendations contained in the report are wide ranging and comprehensive and potentially far-reaching.
I want to take this opportunity to thank Alison Elliot and the LRRG and all who fed their views into the process. The outcome has been a substantial, authoritative report, and given its depth, it will require some time to carefully consider the full contents.
It contains recommendations we may agree with and some we may not, but I very much welcome the overall direction of travel and look forward to considering the detail in the report.
In particular, I value the way in which the review group are asking all of us to question the public interest arguments that underpin policies and governance of this natural and finite resource – Scotland’s land.
I know that the report was the focus for one of the breakout sessions yesterday, and will be again today, and I will be interested to hear the outcomes of your discussions.
Perhaps my officials will have already managed to pinch a few ideas that we will pass off as our own!
I have already announced, on behalf of The Scottish Government, that we will take forward two of the Group’s recommendations.
We have committed to completing the land register within 10 years, and ensuring that all publicly owned land is registered within 5 years.
This is not an insubstantial commitment by the Scottish Government, and we are firmly of the view that greater transparency it will deliver will aid the debate around land in the future, and I see this as first of many actions that will aid transparency.
We will also be setting up a short term working group, which will be tasked with improving the existing information on the numbers and types of community land owners and the land that they own, and to develop a strategy for achieving the 1 million acre target announced last year.
This group will consider how best the Scottish Government can work with partners to promote community ownership.
This will ensure that communities across both urban and rural Scotland have the information, advice and support they need to facilitate the transfer of the right asset to achieve their aims.
This should be regardless of whether that asset is currently in public or private ownership.
On the 1M acre target, it is important to highlight progress made since the First Minister’s announcement.
Major acquisitions funded by the Scottish Land Fund in the last year include that of the Carloway Estate Trust community – at a cost of £207,500 some 11,500 acres have been secured.
We have also seen the success of the North Harris Trust – where the Isle of Scalpay was gifted by the owner and the Scottish Land Fund assisted the acquisition by funding of £60k to assist with some transfer and development costs –in total approx. 1,700 acres were acquired.
The land fund also granted Pairc Trust £230k to assist with the acquisition and development of the Pairc Estate, which extends to some 26,700 acres.
This didn’t meet the whole cost of the purchase, which was some £500k. The community raised the remaining amount themselves, something which I applaud and congratulate them on.
Of course, while these three acquisitions alone amount to almost 40,000 acres since last year’s conference, but it is not just the large area transfers that we should be focussing on.
The majority of rural communities are purchasing far smaller pieces of land, land which can have a transformational effect on their communities.
Groups such as Sunart Community Company who have purchased 0.25 acres in order for them to create a small hydro scheme which, when completed, will benefit their community for years to come.
It is only fair and just that these rural communities have the same support, advice and access to funding as other groups looking at large area purchases.
Every community purchasing even a small area of land adds to the target of 1 million acres in community ownership by 2020.
It is therefore important to look at the principle behind these projects.
The Review Group themselves, throughout their report, emphasise that any decisions on land use and ownership must be made in the public interest and for the common good.
Not the private interest, or a company’s interest, or even solely a community interest, but the public interest.
It’s an important point to keep in mind as we move forward.
We will be taking the time to carefully consider everything that the Review Group has said, but as I have said I am encouraged by many of the broad themes in the report.
There are recommendations around better and more publicly available information about landownership, tenure, use and value.
The reports highlights a need to adapt, and make fit for purpose, existing legislation around, for example, compulsory purchase.
It sets out a need for a more active approach to regenerating unused land, replacing passive owners with active owners, whether or not that is the same owner.
It highlights the need to ensure that the fiscal arrangements around land are equitable, transparent, fair, and assist in getting the most out of our land resources.
Of course, asset transfer often needs support.
The Scottish Government’s Community Empowerment Action Plan and Regeneration Strategy have long highlighted the benefits that community ownership can bring to local communities.
This is why, since 2011, we have been funding the Development Trusts Association Scotland to run the Community Ownership Support Service.
This represents a £1.2m commitment to deliver a national programme that provides a focal point and central resource for asset transfer activity within Scotland.
This service supports the transfer of publicly held assets into community ownership.
To date, 18 assets have transferred into community ownership with a further 11 in final stages of negotiation. There are currently 214 open cases of enquiry. The process of developing a robust case for the sustainable transfer of assets can take a number of years for community groups to achieve.
The Community Ownership Support Service offers information, advice, resources and practical support to communities across rural and urban Scotland.
There are also financial support mechanisms and one of these is State Aids.
The Scottish Government sees State aid not as an impediment but as an enabler of efficient public spending.
The State Aid Unit advises public funders to apply a discerning approach to the rules, especially where local benefits far outweigh any possible distortions of the European Single Market.
As an example of this approach, we were delighted to see the acquisition of Aigas Community Forest in Beauly with help from the Scottish Land Fund.
This was purchased under the National Forest Land Scheme, a scheme which the Review Group refer to as “as a positive mechanism providing an opportunity for local communities to buy or lease land”.
I know that is has been a very long road to get to this point for the community, but I’m positive that it will be worth the wait.
The scheme has do far seen the transfer of nearly 4,000 hectares of land to 25 local communities, Non-Governmental Organisations and affordable housing bodies.
Communities have approval to purchase a further 3,000 hectares to deliver a range of projects supporting local development, such as hydro renewable schemes, forestry based enterprises, or improved recreational facilities.
Key outputs from the sales to date include 11 sites with the potential to build over 80 homes – and so far over 40 houses have been either built or are nearing completion.
Other outputs include woodland crofts, community growing projects, local wood fuel businesses, renewable energy projects, timber harvesting and marketing activity and local employment opportunities.
These transfers will help our most remote communities to become more economically sustainable and to make best use of their natural assets.
I can confirm that the Scottish Government will refresh its published guidance for funders on State aid in the specific context of interventions in remote rural locations, to ensure that we continue to enable these key transfers to communities.
The group highlights the need to get the framework right to assist communities in fulfilling their aspirations, and on this they make several recommendations.
From what I have outlined above government is taken action in several areas to address barriers, and will look carefully at best way to move forward.
I recognise that resourcing community land ownership is important.
Indeed the Review Group states in its report that “funding to finance buying buildings and land is crucial to expanding local community land ownership.”
The Group recommends that “an adequate level of funding should be available to meet an expected increase in demand for local community land ownership”.
As things stand, there will be funding for community purchase of land until 2016, and this is having an impact on the number of communities that are approaching the Fund for funding.
Indeed, the Year 2 report of the Fund, notes that “in particular we have seen a significant rise in enquiries around announcement of awards.”
“The success of other groups appears to generate interest in communities and provide them with a belief that they too could secure funding for their community.
Experience to date indicates that asset acquisition projects need time to develop and confidence in the availability of funding to do this.”
It is with this in mind I want to reassure you all that this government is committed to maintaining the Scottish Land Fund and I can confirm that we will do so until at least until 2020.
It would be inappropriate for me to put a value on what we would put in; as this is for future spending round decisions.
However I hope my reassurance will give greater confidence to communities to consider community land ownership.
It would give communities time to work up their plans.
This is an especially important consideration as plans do not just happen: projects need time to develop, and this can sometimes be a year or two or more.
It would allow for a growing interest and confidence in the sector which is important in underpinning the growth in community ownership of land.
I understand that from time to time communities come forward with very large scale projects that dwarf the size of the land fund.
Often, funding them would jeopardise the stream of smaller community acquisitions in the pipeline.
I therefore want communities to know that the Scottish Government is open to discussion, on a case by case basis, on how we help these communities fulfil their aspirations, and stretch the land fund to meet that demand.
There have been calls for the Scottish Government to set out its intentions on the recommendations of the Review Group.
This is understandable. However, as I stated earlier, the report and its recommendations will need further study, and it would be irresponsible to rush into these without a thorough investigation of the facts and consequences of implement them.
Fundamentally the Scottish Government is interested in the outcomes desired by the recommendations in the Report and will focus on shaping its actions to meet these outcomes.
Having said that, the Scottish Government is already taking action on several recommendations in the report.
We have created the Crofting Legislation Stakeholder Consultation Group to develop a modern and robust statutory framework for crofting.
Members of the group include the likes of : Scottish Land & Estates; National Farmers Union Scotland; Crofting Commission; Registers of Scotland; and the Cross-Party Group on Crofting
We have the Agricultural Holdings Review, which will, amongst other things, consider the review groups recommendation on the community dimension of any right to buy.
There is, too, the Wild Fisheries review which is tasked with developing and promoting a modern, evidence-based management system for wild fisheries fit for purpose in the 21st century.
Probably one of the biggest areas where government has already made clear commitments is on the Community Empowerment Agenda and in the planned Community Empowerment (Scotland) Bill.
Although it is not in my gift today to tell you what exactly is in the bill, as much as I would love to, you already know that as part of the consolation on the Community Empowerment Bill, we were proposing improving the community right to buy.
For more on this and other proposals, you will have to wait for it to be laid before parliament later this month.
When you see this, I do hope you will be encouraged by this Government’s commitment, to both the community ownership and community empowerment agendas.
However, I clearly recognise that all this will only deliver part of the measures that will ultimately need to be taken forward, and between now and December this year, the Scottish Government will consider the fuller agenda.
In our consideration of the recommendations of LRRG, the Scottish Government will take into account the views of stakeholders in taking forward the development of legislation.
I am however pleased to inform you that it is intended that a Bill will be brought forward before the end of the current term of the Scottish Parliament. Due to protocol I cannot say more than that at this stage in terms of the Bill’s content.
But we must all recognise, as the review group suggested, land reform is not an event, but a process and it will need continued perseverance to deliver meaningful change.
There are measures we can address now, and we are doing so where appropriate, but other challenges will need careful reflection on the Group’s recommendations and, perhaps, further work before formulating our response.
However, there are many areas of policy where community led activity is tackling – this includes Community Broadband Scotland, where applications from community-led broadband projects for capital assistance grants from its Start Up fund.
Funding totalling £430,587 has been awarded to these projects, five of which are making progress towards the 655 broadband connections expected. Investment of this kind can help ensure community ownership projects have the necessary infrastructure to allow communities to flourish.
I want also to welcome the publication of Scotland’s Rural College’s third Rural Scotland in Focus report.
It highlights some great examples of the outcomes that can be achieved locally and nationally to address issues facing rural Scotland.
Its authors also recognise the need for continued action by us all, with ownership of the agenda by our communities and businesses, vital.
I completely agree with SRUC’s view of the need for continued action, which is why I will ensure that we reflect on the recommendations within the Land Reform review report and come up with an inclusive strategy going forward.
Not all of the recommendations are within the Scottish Government’s powers to take forward and there has been some talk already of just how much of the review group’s recommendations lie within the gift of Scottish Ministers.
I want to be clear that devolution has enabled Scotland to progress and to address land reform in a way that would, I believe, have been nigh on impossible before the existence of a Scottish Parliament.
However without the full powers that come with independence, it will always be possible for those that want to evade the aspirations and policies of the Scottish Parliament to do so.
For example, last year this Government was considering approval of Durness Development Group’s plans to purchase the 58 acre site from the Northern Lighthouse Board.
However, apparently, the MoD felt that it had the political clout to fight the Government over this on “grounds of national security”.
Perhaps they might like to explain if it is tourists enjoying the views, locals having tea and cakes in the café, or walkers completing the Scottish National Trail that posed the greatest threat?
Thankfully the MOD ultimately saw sense on this occasion, but who’s to say something similar may not occur with another community buyout.
So, in summary, the Scottish Government commissioned a wide ranging comprehensive report on land reform, which you have seen.
Our Parliament will debate land reform vigorously and, I hope, come forward with substantial proposals.
Although I expect that the Scottish Affairs Committee report into land reform, will make important observations about reserved levers that will distort and prevent action in Scotland, it is unlikely to get any traction or interest in Westminster.
There is too much vested interest, not least from the House of Lords, a number of whom, I’m sure, do own land in Scotland.
It won’t be high on David Cameron’s agenda either….no not the one sitting here…the other one.
That David Cameron is known to enjoy holidays on the Isle of Jura on the estate owned by his Stepfather-in-law, through Ginge Manor Estates Ltd. He is also a member of the House of Lords and the company is itself registered in Nassau in the Bahamas – outside the EU, so forgive me if I an cynical about the likelihood of action in “another place”.
This brings me squarely onto the Crown Estate.
The review groups map on the front cover of the report, indicates that ½ of Scotland’s total territorial area is seabed.
This is seabed that is administered by the Crown Estate Commissioners.
I have nothing against those who work for the organisation, but despite the number of reports that have made a clear case why decisions over the seabed should reside with Scottish Ministers, no action has yet been taken by Westminster.
With Independence, we do have the opportunity to change this, and that opportunity is now. Scotland is approaching a critical period in its future.
We have our destiny within our own grasp, and it means we can shape and guide the political, economic, social and geographic future of this country.
I know that you’re all committed to seeing that, whatever decision the people of Scotland take, that our future is founded on the principles of fairness, social justice and equality, in all ways. I can assure you that this Government has the same principles in mind. Together, we can ensure that future generations of Scots will enjoy this beautiful country of ours, secure in the knowledge that its ownership and its use will be aligned to deliver the best interests of the people of Scotland and to be managed – whether by communities, the public sector or private sector – in the public interest of the people of Scotland.
In the great span of history, the most significant of the recommendations put forward by the Scottish Land Reform Review Group will – if acted upon – prove to be the 60th and last. It is worth quoting at length:
“The Review Group recommends that the Scottish Government should have an integrated programme of land reform measures to take forward the changes required to modernise and reform Scotland’s system of land ownership.
“The Review Group considers that there is a need for a single body with responsibility for understanding and monitoring the system governing the ownership and management of Scotland’s land, and recommending changes in the public interest. The Group recommends that the Scottish Government should establish a Scottish Land and Property Commission”.
Setting up new quangos is not, of itself, a radical device. But in this case is it an absolutely essential one. What this recommendation will, if acted upon, establish is both the continuity of the land reform process and the principle of interventionism in how the land of Scotland is owned and managed. And recent history confirms that these are two underpinning essentials.
The critical importance of this report is that it destroys for ever the myth that land reform, whether within Scotland’s current constitutional status or beyond, is too difficult or impossible because the powers do not exist. That is the alibi which has brought the process of land reform to a grinding halt for the past decade and it has, as this report confirms, never been true.
As the report bluntly states: “At present, the Scottish Government has no integrated approach to land reform and Scotland has not had a land reform programme for ten years”. What an indictment! In other words, since some of the programme for which the ground was laid prior to devolution in 1997-98 was implemented, there has been a complete dearth of original thought or action to follow. I have been bemoaning that for years. Now it is confirmed.
As a result of initiatives in that earlier period, feudal tenure was abolished, rights of access established, the crofting community right to buy introduced and the Scottish Land Fund created. But, as this new report recalls, the Sewel Report which laid the ground for all that (and much more if it had been fully acted upon) was explicit in warning that land reform must be an ongoing process rather than a few piecemeal actions.
Once the devolved government of Scotland fell into the hands of people who were only too happy to park the whole question of land reform, whether through disinterest or hostility, the process ground to a halt. I have no idea whether the other 59 recommendations in this latest report will be acted upon, but if only the 60th survives then at least there will be an ongoing reminder that political inaction is the product of neglect rather than necessity.
There is much to be praised and welcomed in the new report but we don’t have a clue how much of it will be turned into reality. The process by which this point has been reached has not been particularly encouraging. The Review Group was set up in 2012 to head off the mounting criticism of inaction on land-related issues and was generally seen as a kicking into touch device prior to the referendum.
The rather puzzling choice of Dr Alison Elliot, a former Kirk moderator with no hinterland in the subject, to chair the Review Group did not inspire confidence. Last May, an interim report notable only for its monumental blandness was greeted with universal derision. At that point, two of the three Review Group members resigned and the Scottish Government realised that it had a significant political own-goal in the making. The personnel was revamped, notably through the introduction of John Watt as a Group member and Robin Callander as an adviser.
As a result, a final report has been achieved which bears absolutely no resemblance to the interim report, other than the presence of Dr Elliot who presumably agrees as much with the one as with the other. Whether they wanted it or not, the current Scottish Government now has a programme of action on its hands and with it, a moral and political obligation to pick its low-hanging fruit without further delay.
Recommendations in the report which commend themselves to common sense and early action include the reform of Scotland’s compulsory purchase legislation with a public right of pre-emption; “a more integrated and ambitious” programme of land acquisitions for forestry; a “strategic framework to promote the continued growth of local community land ownership”; a more “solution-focused and less risk-averse” approach to EU state aid rules; the establishment of a National Housing Corporation charged with acquiring sufficient land to meet house-building needs.
The important point to remember about all of these is that they could have been done years ago, if the political will had existed. Instead, the ubiquitous mantra of “we don’t have the powers” was deployed to hide behind. Equally, the proposed abolition of the District Salmon Fishery Boards, to be replaced by accountable bodies representing diverse interests, and the long-promised extension of right-to-buy to tenant farmers have never needed constitutional change in order to deliver them. That is the truth that has now been laid bare and inescapable for this and future Holyrood administrations.
The recent report by the Scottish Affairs Committee of the House of Commons recommended the need for a proper Land Register as the essential building block of land reform and this new report emphasizes the need to speed up the current snail-like progress towards that objective. The Scottish Affairs Committee also stressed the need for beneficial as well as nominal ownership to be revealed and, in all respects, the two reports are entirely complementary and should be treated as such.
The interventionist nature of the Review Group proposals is confirmed by the observation that implementation of a Land Use Strategy process “will lead to reductions in the current flexibility in rural land owners’ choices over how they use their land. The Group recommends that the Government ensures that the necessary mechanisms are in place for the successful implementation of the Land Use Strategy in the public interest”.
This proposal, if acted upon, strikes at the power of landlords to be the sole arbiters of how land is used, misused or under-used; whether or not there are people living on it; and therefore, to some extent, what its market value is. There is not the slightest doubt that such interventions will be resisted by the landowning fraternity who will defend the sacred principle that ownership through inheritance or wealth give them the right to do what they like.
Let’s hope that the stomach exists for the fight, but I wouldn’t bet on it. We need safeguards to ensure that the issue of land reform never again goes away. The proposed Scottish Land and Property Commission should become the guardian of Scotland’s conscience and ongoing guarantor against the backsliding and evasion which have characterised the past decade.
It has been a rocky road for the Land Reform Review Group which was established in July 2012 and whose final report The Land of Scotland and the Common Good was published this morning (Low Resolution version – 13Mb pdf – on Scottish Government website here and 52Mb high resolution version on Scottish Government website here or my website here). A Scottish government press release is here. Response from Community Land Scotland here. Lesley Riddoch comments here. Scottish Tenant Farmers Association reaction here. Scottish Gamekeepers’ Association reaction here. Scottish National Party reaction here. Scottish Land and Estates reaction here. Community Energy Scotland here. Scottish Labour Party reaction here. Scottish Green Party reaction here. Lord Shrewsbury reaction here. Calum Macleod blog here and West Highland Free Press analysis here. Knight Frank reaction here. CKD Galbraith reaction here. Pinsent Masons reaction here. Brian Wilson reaction here. John Muir Trust here. Bell Ingram reaction here. Savills reaction here. Gillespie Macandrew reaction here. Scottish Conservative & Unionist Party reaction here. Scottish Liberal Democrats reaction here. Evidence submitted to Scottish Parliament’s Rural Affairs Committee here.
This blog provides a brief initial reaction to the report.
By the time the Group published its interim report in May 2013, two of its three members had resigned and the report itself was widely criticised (e.g. see here, here and here). The Group was then strengthened by an additional member and the appointment of a specialist adviser. This re-configured group has survived intact with the exception of one of the advisers, Andrew Bruce-Wootton, who resigned in April 2014.
Much of the turmoil reflects the fact that this is a controversial subject, it is complex and it has received scant academic or political attention for over a decade. The Final Report is thus something of a minor triumph. It is more comprehensive than anything that has gone before and it is detailed and thorough in its description and analysis of the topics covered. The 62 recommendations are wide-ranging. Some will be regarded as radical and perhaps even controversial in certain quarters but there is in fact not one which is anything other than plain common sense and certainly none that citizens of most other European countries would be surprised at.
The group’s remit was to make proposals for land reform measures that would,
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.
If these ambitions are to be realised then big changes are needed in Scotland’s archaic and regressive system of land tenure. As the opening paragraph of the preface states,
This Report is entitled “The Land of Scotland and the Common Good”. It reflects the importance of land as a finite resource, and explores how the arrangements governing the possession and use of land facilitate or inhibit progress towards achieving a Scotland which is economically successful, socially just and environmentally sustainable.
Plain common sense.
What is notable about the report is that it helpfully defines what it means by land reform. For that past 15 years, politicians and others have been guilty of framing land reform as something exclusively to do with rural Scotland, with the Highlands and Islands in particular and with the affairs of tenant farmers and communities in these places. These are important elements to be sure but, as the report’s title indicates, the land of Scotland is the totality of the sovereign territory. This is emphasised by the image on the cover which shows the legal boundaries of Scotland. (1)
The group’s defines land reform as
“measures that modify or change the arrangements governing the possession and use of land in Scotland in the public interest.”
This relates to urban land, rural land and the marine environment. The recommendations reflect this comprehensive agenda. They include longer and more secure tenancies for private housing tenants, new powers of compulsory purchase, the establishment of a Housing Land Corporation to acquire land, new arrangements for common good land, the devolution of the Crown Estate, removing exemptions from business rates enjoyed by owners of rural land, giving children the right to inherit land, prohibiting companies in tax havens from registering title, protecting common land from land grabbing, reviewing hunting rights, limiting the amount of land any one beneficial owner can own and introducing a wide range of new powers for communities to take more control of the land around them in towns, cities and the countryside.
Of the 62 recommendations, 58 are within the full devolved competence of the Scottish Parliament. The four that are reserved relate to inheritance and capital taxation, State Aid rules and the Crown Estate – all topics which the Scottish Affairs Committee are examining in a parallel inquiry.
It is notable that this report is the first ever report into the topic since the establishment of the Scottish Parliament in 1999. It’s early work was informed by the Land Reform Policy Group, chaired by Lord Sewel which published its final report in January 1999. In the foreword, Lord Sewel wrote,
“It is crucial that we regard land reform not as a once-for-all issue but as an ongoing process. The parliament will be able to test how this early legislation works and how it effects change. They will then have the opportunity to revisit and refine their initial achievement…..These present recommendations are therefore by no means the final word on land reform; they are a platform upon which we can build for the future”.
However, as the Land Reform Review group note in their own Preface,
As a time limited Review Group, we are acutely aware that Government approaches to land reform, when there has been a political will to engage with the issue at all, have traditionally been characterised by periodic review and piecemeal intervention. Given the importance of land reform to delivering societal aspirations, we recommend that the Scottish Government regard land as a separate, well supported area of policy, to ensure that the common good of the people of Scotland is well served by its land resources.
As the report notes,
The first session of the Scottish Parliament had a land reform programme established by the Scottish Executive. In contrast, since 2003, there has been no land reform programme. The land reform measures after 2003 have therefore tended to be specific responses to particular issues, rather than part of any wider land reform strategy or programme.
Hopefully, this report will serve to shift the baseline – to move the agenda forward and to deliver a consensus that these recommendations provide the minimum necessary to re-frame and modernise Scotland’s stystem of land governance to one which is people-centred and in which the land of Scotland serves the common good of all of its citizens. The report does not cover a range of important topics but if all of its recommendations were to be implemented over the coming 5 years, we would be living in a country with a far more democratic and equitable distribution of land and power. The report concludes thus.
The Group recognises that this is a critical time for the future of Scotland. Along with the people of Scotland, land is the most important resource in the nation. How it is owned, managed and used is of fundamental importance to Scotland’s future prospects, whatever constitutional direction the country chooses. The Group believes that we have reached a critical point in relation to land issues. We offer the Scottish Government, a range of recommendations, summarised in Section 34, and we encourage it to be radical in its thinking and bold in its action. The prize to the nation will be significant.
UPDATE 1240 23 May
The Scottish Government’s press release contains this statement from Minister for Environment and Climate Change Paul Wheelhouse.
“I am pleased to read the recommendations on improving the availability of land, both rural and urban, and the need to increase access to rural housing, these are issues that will have a direct impact on many people’s lives. The Group have also highlighted the need to address transparency of land ownership in Scotland which I believe is crucial to taking forward this agenda.
“I also welcome that the benefits of community ownership have been highlighted within the report. We have always said that community ownership empowers communities, sparks regeneration and drives renewal which is why we have an ambitious target to get one million acres of land into community ownership by 2020.
“I am pleased to announce that I agree with the Review Group’s recommendation for a working group to develop the strategy for achieving the million acre target and I will shortly be forming a working group to achieve just that.
“Land Reform not just about land ownership but how that land is used and managed and the benefits it can bring to the people of Scotland. I look forward to considering how the recommendations in this report can further benefit the people in Scotland through the relationship with our land.”
But in the Notes to Editors, the release states that,
The Scottish Government recently completed a review on business rates. This Government is committed to maintaining the most competitive business tax environment anywhere in the UK through our business rates policies and we can confirm there are no plans to make changes to the position of agricultural business rates relief.
So a major Review is published and within 3 hours, the Government flatly rejects a key recommendation because of a previous review that was not concerned with land reform – a statement not even consistent with its statement at the time.
In November 2012, the Scottish Government launched a public consultation on how the non-domestic rating and valuation appeals systems can support businesses and sustainable economic growth and on how to improve transparency and streamline the operation of the rating system. As the analysis of consultation responses noted:
Agricultural land and sporting estates are exempt from business rates and the comments on this issue were mixed with some supporting the exemption because of the benefit to the rural economy, and others opposed because they felt all businesses should be treated in the same way.
In its response to the consultation, the Scottish Government said that it had “committed to use the period until the next revaluation in 2017 to conduct a thorough and comprehensive review of the whole business rates system.” In relation to existing reliefs and exemptions, the consultation response said: “All rates reliefs will be kept under regular review to ensure that benefit is directed where it is most needed. Although views were mixed, the Scottish Government has on balance decided that all current exemptions provided, including to agriculture, should be retained.”
So, despite saying today that there are no plans to make changes, in September 2013, Ministers said that the “period to 2017 would be used to conduct a thorough and comprehensive review of the whole business rates system“. Confused?
NOTES
(1) Note the controversial sea boundary off Berwick where the sea boundary as defined by the Scottish Adjacent Waters Boundaries Order 1999 contrasts with the boundary of Scotland’s civil jurisdiction.
Some Minor Gripes
The footnotes are a mess. One simply states “SAC ref” Others note speeches by give no reference other than a date. Another is “Wightman (blog re commonty at Biggar)” – no link and it is Carluke not Biggar. Hopefully these can be sorted.
Scotland’s landed class made the front page of the Scotsman yesterday under a headline “Lairds in warning over new buy-out powers”. The story is based around submissions of evidence to the Scottish Government’s Land Reform Review Group (LRRG) which will publish its final report in April 2014. These submissions can all be read here.
Since January 2013, when the LRRG call for evidence closed, I have submitted two Freedom of Information requests for these submissions to be made public. (1) The LRRG had originally stated that they would not be published until April 2014 which is patently ridiculous. I responded by inviting those who were willing to publish their responses on my website.
Both FoI requests were refused but I am pleased that the responses (or rather those from the two-thirds who were willing to have them published) have now, six months later, finally been published. As the Scotsman story illustrates they make for interesting reading not least in relation to the sense of entitlement expressed by the five white male members of the landed class that the paper quoted (including the Duke of Roxburghe pictured above who, according to his website, is correctly referred to as “His Grace”). Much more insight into these discourses on land and power can be gleaned from reading all the responses. But more on that later.
What I should have done some weeks ago is to review where the land reform process is and what’s been happening. Calum McLeod recently provided a well-written overview on his blog. There have been two important developments.
This was quite revealing. The new members, it was reported, were keen to see the submissions made public as soon as possible and their efforts have now borne fruit. The Group has also undertaken a mid-term review of its progress to date. One consequence if this is that the work programme identified in the Interim Report has been expanded (thus addressing one of the key criticisms of the Group that it had narrowed what had been a wide original remit). In summary, the Group appears to have found a new focus and direction which more faithfully reflects the wide remit given to it and the Scottish Government’s wish to see it develop bold and radical proposals. The Group has also published Declarations of Interests of its members.
The test of course will be in whether the final report delivers on this ambition but the new Group already has a different feel to it and has the services of a special adviser with a track record in the topic and wide expertise. I should add at this point that it has been suggested in some quarters that I declined to become a member of the LRRG. This is incorrect – I was never invited either at the outset or during the recent expansion of membership. I wish the LRRG well in its work over the coming months.
Scottish Affairs Committee
The Scottish Affairs Committee of the UK Parliament meanwhile has launched a consultation on the future of landownership in Scotland and, in particular, on the corporate and fiscal dimensions of how Scotland is owned. A briefing paper (432:50 – Towards a comprehensive land reform agenda for Scotland) was published. This is a very welcome move since a Select Committee of Parliament has, unlike an independent review, the power to call witnesses and the authority to probe official bodies. This consultation (which is expected to lead to an inquiry in the Autumn) compliments the work of the LRRG and indeed the Review Group has written to the Committee to welcome the inquiry
“The SAC inquiry will complement the work of the LRRG as it takes forward its phase 2 analysis. The LRRG shares the view that there should be a comprehensive approach to land reform in Scotland, and agrees that the relationship between public funds and patterns of land ownership is an essential aspect to investigate. The LRRG recognises that the Scottish Affairs Committee is particularly well positioned to consider matters related to taxation.”
“The individuals submitting this report have been well-known land reform activists for many years and are using this approach as another tactical ploy” and argued that “such an investigation is unnecessary and unwarranted”.
I understand that the Chair of the Scottish Affairs Committee has spoken to SLE to ask them to correct this statement.
The individuals who wrote the report (which includes myself) did not “submit it” to the Committee. It was commissioned from us by the Committee. The consultation and inquiry are not a “tactical ploy” by us or anyone else. It is the work of a Select Committee of the House of Commons!
For the record, a number of members of the Scottish Affairs Committee have been very interested in exploring further aspects of the land question since the publication of the Committee’s excellent and thorough report on the Management of the Crown Estate in Scotland in March 2012.
I know this because they have discussed it with me on occasions. As it happens I was initially quite sceptical about what might be achieved by such an inquiry but it became clear that there was much to be examined in relation to what might be described as the “reserved dimensions” of land reform.
The recent EU Council agreement (see previous blog) as highlighted by Ian Davidson in his question to the Prime Minister has merely added impetus to such a move.
All in all it seems that following over a decade of no political action on the land question, there is rather a lot happening. As David Ross eloquently put it in a recent column in the Herald
“Land reform campaigners used to complain that legislators in London danced to the Scottish landed lobby’s tune, but it seems Westminster is expanding its taste in music.”
(1) Some responses were made on a confidential basis and these remain unpublished. I have never sought to have these released and respect and understand why some people feel that they cannot openly say what they think.
I am delighted to publish this Guest Blog by Douglas McAdam who is chief executive of Scottish Land & Estates. The article first appeared in the Herald newspaper today. It is published here in the spirit of a mature debate and those posting comments should observe this wise counsel. Comments policy is here.
Let’s have a mature debate that does not demonise landowners
Douglas McAdam 28 June 2013
The most ardent advocates of land reform in Scotland went into overdrive when they did not like what they saw emerging from the Government-appointed Land Reform Review Group.
Even though the group published an interim report containing measures that could be seriously detrimental to private landowners’ interests, it was not enough to satisfy the blood lust of those who will only be happy if rural estates are wrenched from their lawful owners, broken up and sold off.
Those in favour of draconian land reform try to claim the moral and emotional high ground. However, we are confronted with a debate about the future of the countryside, communities and rural economies that is not rational. Instead, we have a propaganda war where fact runs a distant second to fiction. To create a more mature and informed debate we should attempt to separate fact from fiction.
Take tenant farming. In a recent Scottish Parliamentary debate, one MSP referred to the terrible “oppression” suffered by tenants who, she said, were operating in a climate akin to the Highland Clearances. The fact is that the agricultural landlord and tenant relationship is already among the most heavily regulated in commercial property arrangements. Around 80% of tenants have virtually complete freedom of use and can pass on the tenancy to future generations. Tenants have unrivalled security of tenure.
The Supreme Court recently ruled, in what has become known as the Salvesen case, that a landowner’s rights were violated by law passed by the Scottish Parliament which prevented the landowner ending what is known as a limited partnership agreement with a farmer. Those in the industry who were aware of the real circumstances did not try to make capital out of the situation and knew this was a complex and technical case. But it was portrayed in some quarters as a charter for landowners to throw tenant farmers off their land, with hundreds facing eviction; emotive, but false. There is no possibility of mass evictions of tenants.
Last week, Richard Lochhead, Cabinet Secretary for Rural Affairs, criticised landowners for not bringing farm land to the market for rent yet 96% of estate land is already farmed under some kind of arrangement, with 70% being let to tenants. Farms do not become available every day to landowners or tenants. Estates are generally fully let but there could be opportunity if older generation tenant farmers retire and also if confidence could be given to the owner-occupier farmers to let land.
Inevitably, the land reform lobby focuses on who owns Scotland and how unjust it seems that anyone should own what is perceived as a lot of land. All too often we hear that half of Scotland is owned by a few hundred people. This is misleading. Yes, there are large-scale landowners but often they own low-quality, fragile land. In reality, the 16 biggest private landowners hold less land than the Forestry Commission. More importantly, the vast majority of people who own rural land own less than 1000 acres, accounting for many thousands of these people.
There is a rich mosaic of land ownership across Scotland. The Government owns land, as do local authorities, charities, communities, NGOs as well as private individuals; quite a healthy mix. The caricature of a few landed gentry exercising complete control over Scotland does not reflect reality.
In one of the few pieces of research carried out into public attitudes towards estates, the public revealed it did not think about estates often, enjoyed the facilities and thought estates should do more to promote their activities -– all perfectly reasonable observations.
A mature land reform debate should be about use and management rather than ownership. It is time for the debate to move forward and concentrate on making decisions, based on fact, that will help rural Scotland. Private rural landowners are a constructive and progressive voice to be heard in that debate.
With kind permission of the West Highland Free Press, this Guest Blog reproduces Brian Wilson’s column in today’s paper.
The back of the envelope duly arrived in Sleat last weekend
Brian Wilson, 14 June 2013
The back of the envelope duly arrived in Sleat last weekend, borne by Alex Salmond. What was written on it amounted to no more than a headline. But since headlines are his raison d’etre, that will count as a good result.
As pointed out in last week’s Free Press editorial, Mr Salmond’s sociable wee trip to Skye had taken on a different perspective due to the hostile response accorded to the interim report of the Land Reform Review Group and particularly the scathing comments from Jim Hunter, erstwhile member of that group.
It was not only the vacuous nature of that document which attracted comment but the inherent redefinition of land reform which it contained. In effect, this had been reduced to a discussion of “community ownership” which, in turn, had been reduced to the level of Third Sector jargon, rather a part of any broad, reforming strategy.
Mr Salmond’s speech, and his subsequent comments, need to be measured against that unpromising backdrop. Did he reassert the need for Scottish land reform – to address what he once declaimed against as “a problem, a question and a scandal in every part of Scotland” – and recognise that a whole range of weapons will be required to address it? No he did not. Quite the contrary, actually.
The headline sought and obtained was about “a target” of one million acres under community ownership by 2020. Targets are useful devices for politicians, especially when set at such a safe distance. But to have any credibility, they need to be accompanied by a route-map which gives at least some clues as to how they might be reached.
Sadly, there was no room on Mr Salmond’s hastily scribbled envelope for such detail – leaving no more than an empty assertion which duly became the headline in the Scottish media which, in general, neither knows nor cares enough about these matters to explore beyond the press release handed to it.
At present, there are roughly half a million acres under community ownership, the vast majority of them in crofting areas and particularly the Western Isles. Much of the low hanging fruit has already been picked, thank goodness. And of course, there were the Stornoway Trust’s 63,000 acres already in the bag before the modern wave of buy-outs began.
So where are the next 500,000 acres of buy-outs to come from? If Mr Salmond had the slightest clue about the answer then he declined to share it. Take a number, double it and you have your headline. No need for anything more, First Minister.
The only other announcement was an extension of the Scottish Land Fund until 2016 with another £3 million in the pot which will now mean £9 million over five years instead of £6 million over three. Anyone who thinks they are going to change Scotland’s land ownership structure with that budget is seriously deluded. It is far less than the previous Scottish Land Fund operated with a decade ago.
Also, I can’t say that I am terribly impressed by how the new Scottish Land Fund has interpreted its role so far. As I pointed out at the time, there was a danger in the remit of supporting the purchase of “land and land assets” – the latter term being capable of covering just about anything. And so it has started to prove.
The early subjects of grants made by the Scottish Land Fund include a lighthouse in Moray, a village hall in the Borders and a smokehouse in Assynt. I do not for a moment question the worthiness of these projects – but the idea they have anything do with land reform is a joke. There has so far been no significant award which shifts the ownership balance by one acre, far less 500,000.
I also notice that the maximum grant which can be applied for to the Scottish Land Fund (Mark Two) is £750,000. This makes it unlikely that there will be any more buy-outs on a South Uist or North Harris scale within that constraint. So once again I ask, what is the substance behind the “one million acres by 2020” target – and the answer is absolutely none.
But community buy-outs can only occur, even hypothetically, where there are viable rural communities. That generally means in crofting areas where a specific legal framework creates a rationale for collective acquisition. But most of rural Scotland is not under crofting tenure and much of it has been reduced to minimal populations under the existing system of land management.
From both Mr Salmond’s remarks and the Land Reform Review Group report, it would appear that these vast acreages have already been written out of any land reform agenda. Indeed, Mr Salmond and his colleagues have been going out of their way to offer that reassurance to the Scottish Landowners Federation as I will continue to call it.
In a BBC Alba interview last Friday, Salmond ruled out compulsory purchase on the grounds that “if we tried to compulsorily purchase land, we would end up for generations in the European Court of Human Rights”. This is patently untrue and “blaming Brussels” for one’s own lack of action is a well-established refuge for political scoundrels.
If the option of compulsory purchase is ruled out in this cavalier way, then we will stay exactly where we are now – with no effective sanction against even the most extreme abuse of land ownership and control.
What is urgently needed is a clear setting-out of both options and constraints in terms of substantial land reform, open for comment and discussion – not an ex cathedra assertion from the First Minister which has no obvious basis in fact and which, if accepted, would close down a crucial option for driving change.
The other issue on which there is now nothing but silence is the right of tenant farmers to buy their land – one of the most important means of changing the pattern of vast landholdings and feudal power structures in many parts of rural Scotland. Is Mr Salmond saying that this too is forbidden by the European Court of Human Rights – or simply by his own anxiety to keep sweet with the landowners?
One observer present at the Community Land Scotland conference in Sleat described his speech as “going through the motions but without any indication of his heart being in it”. That sounds about right. But if that is the case, then the certainty is that nothing much is going to happen because in order to drive a land reform agenda there has to be belief and sustained commitment to overcome the powerful forces both externally and within Government.
It is both a tragedy and a warning that no such belief or commitment exists among those who currently hold power in Scotland. The empty rhetoric of the past has been replaced with the conservative inertia of the present and, if we allow it, the future.
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.
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?
Alex Salmond gave an interview to BBC Alba at the Community Land conference on Skye on Friday (see previous post of today) in which he appeared to rule out the use of compulsory powers as part of any new measures to strengthen the rights of communities to buy land. Listen to the audio link above in which he says,
“If we tried to compulsorily purchase land, we’d end up for generations in the European Courts. I mean .. that’s very clear.”
He is wrong.
The European Convention on Human Rights (Article 1 of Protocol 1) makes perfectly clear that land can be acquired against the interests of the owner provided it is in the public interest to do so and that it is done in accordance with the law.
Compulsory powers of land acquisition have existed for well over a century. The Scottish Government has most recently introduced such powers in order to acquire land for the Commonwealth Games (picture above shows John Swinney meeting protesters who object to the use of these powers).
There is a well-established body of statute and case law which provides ample guidance for Parliament when framing any new powers of compulsory purchase. Most recently, the Court of Session upheld the powers contained in Part 3 of the Land Reform (Scotland) Act 2003 which provides powers for crofting communities to purchase croft land against the wishes of the owner. The Lord President ruled that this law actually provides a level of protection to the landowner that equalled or surpassed anything required by the ECHR (Pairc Crofters Ltd v Scottish Ministers at 68).
Given that the independent Land Reform Review Group is considering new measures that involve a degree of compulsion, one must assume that Mr Salmond was airing his own views and not those of the Scottish Government.
Since I would like to know which it is, I have asked Mr Salmond’s office whether it is the Scottish Government’s policy that no new powers of compulsion will be included in any new land reform measures. I will let you know the answer.
UPDATE 13 June 2013
A Scottish Government spokeswoman said:
“We have yet to hear the recommendations of the Land Reform Review Group, which are due in their final report in April 2014. Until then, the Review Group will investigate and consider all options in relation to community right to buy. This will include any Human Rights considerations, as the chair of the Review Group, Allison Elliot, made clear in her speech to Community Land Scotland at the weekend.”
Following the publication of the Land Reform Review Group‘s final report in May, the Scottish Government has committed itself to the introduction of a Land Reform Bill in the current Parliament.
On 7 June 2014, the Minister for Environment and Climate Change, Paul Wheelhouse MSP, addressed the Annual Conference of 
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It has been a rocky road for the Land Reform Review Group which was 
