This blog is the second in a series of blogs about the Scottish Government’s consultation – Land Reform in a Net Zero Nation (see this page for details). It follows a previous blog that provided an overview of the proposals.

This blog provides a short and preliminary examination of the issue of scale and concentration of landownership and is prompted by discussion in the online meeting last night with the Minister and her team,

In the introduction to the consultation paper, the Minister states in her introduction that “we are driving forward reform to historically iniquitous patterns of landownership.”

On page 6, it is stated that “The first three proposals we put forward are aimed at tackling the issues associated with scale and concentration of land ownership in Scotland.”

As was discussed in my previous blog, these three proposals are focussed on large-scale landholdings. I will blog further on what this might mean but for the moment I want to flag up potential issues with the statistics used by the Scottish Government.

Landholdings over 3000ha

Page 7 of the consultation paper contains the following claim,

As of May 2022, Registers of Scotland data indicates that 386 of the 1.86 million titles in the Land Register of Scotland had a total land area of over 3,000 hectares. These titles cover 1.62 million hectares of land, equating to 20.2% of Scotland’s total land mass.

I asked Registers of Scotland (RoS) what the basis of these figures was.

They replied as follows (Land Reform Team refers to officials in the Scottish Government)

The methodology agreed by the Land Reform Team was:

Methodology
For each Title on the Land Register
Measure the footprint of all rights/extents displayed on the title plan, regardless of the type of interest
where the total footprint is over 3000 hectares.

Limitations:
As non-ownership rights are included, the area figures and title counts may be an over-estimate.
Customer may not be interested in leases

Output:
When programmed and executed, this methodology returned
Number of titles over 3000 ha:        386
Land mass covered:                       1,616,976 ha
Area of Scotland:                            8,007,825 ha
% of Scotland’s land mass:            20.2%

I have analysed the Land Register data and found 231 holdings covering 1,531,640ha. So the extent is in line with the Scottish Government’s figures but the number of holdings is not. This is almost certainly because the RoS exercise included wind farm leases and other types of interest that overlap with ownership.

The number of titles is thus greater (386 compared with 231) and the area is also 6% greater than my own figures. Both datasets include almost all of the National Forest estate and so are also both overestimates of the extent of large-scale landownership on the Land Register.

In any event, the Land Register only covers 48.9% of the land mass of Scotland. The majority of Scotland’s land is still registered in the Register of Sasines. Despite this, a Government official claimed last night that the majority of large-scale holdings are on the Land Register and thus their figure is reliable. In fact the opposite is the case.

I have been researching landownership since 1994 and am currently updating my Who Owns Scotland website and so have analysed a more comprehensive dataset of landholdings that includes those still in the Register of Sasines.

My preliminary analysis is illustrated below where landholdings over 3000ha are coloured blue where they are on the Land Register and red where they are on the Register of Sasines. (this map does NOT include ALL holdings over 3000ha – this is research in progress).


In total the map shows 358 holdings covering 2.86 million ha of Scotland (35.6% of the land mass). Of these, only 30% of the land (covered by 130 landholdings) is on the Land Register with the majority (70%) comprising 228 landholdings still in the Register of Sasines.

So the Scottish Goverment say 386 holdings covering 1,620,000 ha (20.2% of Scotland)

I say 130 holdings covering 872,833ha (10.8% of Scotland) from Land Register

PLUS 228 holdings covering 1,988.939 ha (24.8% of Scotland) from the Register of Sasines

giving a TOTAL of 358 holdings covering 2,861,772 ha (35.6% of Scotland)

(My data remains preliminary and does not include some known large scale holdings. it will be finalised in September.)

Tackling Scale and Concentration

The one substantive policy question I wish to address in this blog is why scale and concentration matters and what to do about it.

As discussed in the consultation paper, it is proposed to define large-scale holdings as those over 3000ha, comprising more than a defined % of an administrative unit (such as a Council ward) or comprising more than a defined % of a permanently inhabited island.

I don’t propose to discuss this definition here but to concentrate instead on the rationale lying behind focussing on large-scale holdings and how this is being defined.

A definition of large-scale being landholdings over 3000ha in extent begs an important question. Is the threshold of 3000ha to apply to a single parcel or to an aggregate of parcels? An aggregate of parcels would arise where, for example, an owner owns five landholdings across the country each of 1000ha thus potentially exceeding the threshold of 3000ha.

In response to my question on this last night, the Scottish Government stated that their proposal is for a single parcel and that an owner who owned 2009ha in Aberdeenshire and 5ha in Lanarkshire would not be covered by the proposals.

The answer was further reinforced by the Chair of the Scottish Land Commission, Andrew Thin who emphasised that their advice was based on local concentrations of power over land.

So as things stand, aggregate ownership is not regarded as large-scale even it exceeds the 3000ha threshold. The Scottish Government takes the view (based on advice from the Scottish Land Commission) that it the key impact of scale and concentration is the potential negative impact that arises from large landholdings in local areas. Where power is concentrated in the hands of one owner over a large area, it can thwart local priorities.

The Scottish Land Commission’s research and subsequent advice was based upon the impact that the concentration of power can have in a local area and in so far as that analysis goes, it is fine.

BUT, consider this.

If Scotland consisted of 100 landholdings of 80,000ha each, that would be a significant issue in terms of scale and concentration.

If Scotland consisted of one million holdings of 8ha each, that would, on the face of it not pose the same issues.

Except that it would if 100 people or entities each owned 10,000 of these 8ha holdings.

The Scottish Land Commission recognises the issues associated with the former but ignores the issues associated with the latter.

And this is where the question of aggregate holdings is important.

This is a live issue with me as I am, on a daily basis, researching and documenting the ownership of land in order to relaunch my Who Owns Scotland website in September. What I am finding (and this is no surprise) is that there are a number of owners who are accumulating landholdings across Scotland, buying more and more land but typically in individuals holdings that fall below the 3000ha threshold.

If (as the Scottish Government states) it wishes to see a more diverse pattern of landownership with more opportunities for citizens and communities to own land (see page 2 of consultation document) then it needs to be just as concerned with the accumulation of landownership and the resulting concentration that arises as it is with the impacts at any particular local level.

If someone already owns 3000ha as an aggregate total of their ownership, then acquiring more will exacerbate the existing inequalities and lead to more concentrated landownership. Yet this phenomenon is absent from both the Scottish Land Commission’s advice and thus the Government’s analysis of the problem.

Over ten years ago I published an analysis of private forest ownership in Scotland (see 5th document on this page). It showed a remarkably concentrated pattern of ownership in this sector and a stark contrast with the rest of Europe (see graph below). Over 44% of private forests in Scotland are over 100ha in size and account for over 94% of the forest area. Across Europe most forests are small-scale and less that 1% are over 100ha in size. Over half of Scotland’s private forests are owned by absentee owners and a third don’t even live in Scotland.


My current research suggests that the situation has got worse (I will publish a final analysis later this year). If it has got worse, then it is because of the rapid accumulation of land by a few individual owners.

Yet, there are no proposals to deal with this.

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

Introduction

On Monday 4 July, the Scottish Government published its consultation paper “Land Reform in a Net Zero Nation” (1). The consultation is designed to inform the introduction of a Land Reform Bill by the end of 2023.

I spent last week wandering in the hills around Glen Affric during which time I had plenty opportunity to think about where land reform needs to go now and how the proposals set out in this paper contribute to that process. This blog sets out my relatively high level thoughts. More blogs will follow on more detailed aspects of the proposals.

In short, these are significant proposals which, in principle, would introduce some major changes to how parts of the land market operate in Scotland and deserve serious consideration. It is disappointing, however, that the opportunity has been missed to enact more fundamental change. The proposals appear to be designed merely to introduce more accountability and transparency to the land market rather than enact structural reform.

In that regard, I am currently in the process of drafting a Land for the People Bill – a comprehensive set of proposals to democratise land governance in Scotland. This should be published by the end of August. I am also in the process of investing £8000 in updating and upgrading my whoownsscotland.org.uk website which will also be launched in September (if you want to be informed of its launch, visit the site and send me your details).

So, how to respond to this consultation?

This really depends on your perspective on what you want land reform to achieve. My own long-standing position is that land reform is about redistributing power over land in Scotland, democratising land governance and modernising the framework of law governing landownership and use. Land is about power. How that power is defined, distributed and exercised is the central concern of land reform.

In relation to the legal framework, land reform can be secured through reform,

  • to the tenure system,
  • to the fiscal framework and
  • to administrative law (eg environmental and planning legislation).

For land reform to be successful there needs to be a comprehensive, sustained and coherent programme delivered systematically over a period of years involving all three.

In that context, the proposals set out by the Government, though of some utility, are very partial and are unlikely to achieve significant change in how Scotland’s land is owned and used. After twenty years of devolution and with no shortage of ideas over the past few years on how to reform Scotland’s land, it is disappointing that the proposed Bill is not more ambitious and comprehensive. Here are just four examples of what could have been included

  • reform law of foreshore and seabed (been on agenda since 2003)
  • common good (been on agenda since at least 2005)
  • land taxes (long standing debate)
  • inheritance law (been on agenda since 2009)

The proposals in the paper are based on recommendations made by the Scottish Land Commission and it is worth reading its paper for further background to the proposals. (2)

These recommendations were for large landholdings,

  • to be required to produce a management plan,
  • to be made subject to strengthened duties under the existing Land Rights and Responsibilities Statement and
  • to be subject to a public interest test when large landholdings change hands.

Approached from a different point of view, the proposals can be seen as a set of useful measures that are of some utility. I agree that they will bring benefits. But they will not deliver the outcomes claimed by Government and they do not represent more than a modest intervention in the way land is owned.

As SLC said in its 2021 paper,

It is very important that the proposed legislative mechanisms described in this paper are understood within this broader context, as part of a comprehensive package of land reform interventions

and

The measures will not, on their own, deliver the longer term systemic change in patterns of land ownership that are required to realise the full benefits of Scotland’s land resource. Achieving this will require more fundamental policy reform, probably including changes to the taxation system.

The Proposals

The proposals seek views on the following questions,

  • The definition of large-scale holdings (Part 4)
    (this definition is the used to define those landholdings that will be subject to)
  • Strengthening the Land Rights and Responsibilities Statement (Part 5)
  • requiring compulsory management plans (Part 6)
  • a public interest test when land is transferred (Part 7), and
  • introducing new constraints on what entities can own land (Part 11)

The consultation also proposes,

  • new conditions for those in receipt of public subsidy (Part 8)
  • a new land use tenancy for tenet farmers (Part 9)
  • review of smallholdings legislation (Part 10) and,
  • an invitation to submit other ideas (Part 12).

Commentary on the Proposals

I will be blogging in more detail on these proposals over the coming weeks.

Meanwhile here are some initial thoughts and questions.

Will these reforms deliver?

There are two key issues here.

The first is the focus on tackling the scale and concentration of landownership in Scotland. The Minister states in her introduction that “we are driving forward reform to historically iniquitous patterns of landownership.” On page 6, it is stated that “The first three proposals we put forward are aimed at tackling the issues associated with scale and concentration of land ownership in Scotland.”

However, there is very little in these proposals to suggest that they will much if any have any impact on the scale and concentration of landownership. I will explore this in a future blog.

It is notable that there are no proposals to reform the law of succession (giving children the legal right to inherit land) or to reform land taxation. These are the two measures that have been proven historically to dismantle concentrated patterns of landownership.

The second major focus is on helping to deliver climate policy. Indeed the consultation paper is titled Land Reform in a Net Zero Nation. It is far from clear, however, how any of these proposals will help to secure net zero. The two proposals with the most claims in support are the prior notification to sell and the new land use tenancy.

The prior notification to sell is suggested as a means by which community bodies could be assisted in acquiring large-scale holdings. However there is little evidence that community bodies are interested in acquiring large-scale holdings beyond those which have either been historically badly managed or where there are substantial crofting interests.

Furthermore, the consultation suggests that these proposals could tackle the inflation in land values as a result of carbon speculation and offsetting. But the cost effective way to achieve that is not (as the Government currently wishes) to support carbon markets for offsetting but to ban them altogether. Every ton of carbon sequestered in Scotland and used to offset emissions elsewhere is a ton of carbon that is not contributing to cooling the planet.

Overall, the proposals will probably deliver some much needed accountability, engagement and transparency among large-scale holdings but they will not eliminate the concentrated pattern of landownership in Scotland. As mentioned above, it is measures such as taxation and succession law that will achieve that.

What are large-scale holdings? (Part 4)

The most significant proposals in the consultation are targeted solely at “large-sclae landholdings”. Part 4 of the paper seeks views on how to define this and suggests that meeting any one of the proposed criteria would classify a landholding as large-scale. These criteria are,

  • A fixed threshold of 3,000 hectares
  • Land that accounts for more than a fixed percentage of a data zone (or 
adjacent data zones) or local authority ward(s) designated as an Accessible Rural Area or Remote Rural Area, through our six-fold urban/rural classification scheme
  • Land that accounts for more than a specified minimum proportion of a permanently inhabited island.

Key issues are whether the proposals should indeed focussed exclusively on large-scale holdings and whether, if they should, that these are the correct criteria. A question also arises as to the data used to estimate the extent of Scotland covered by holdings of over 3000ha is accurate and I will explore this in a future blog.

Most importantly here is the question of why the proposals are only to apply to large-scale holdings (however they might be defined – do they for example include aggregate holdings across the country which would exceed the threshhold?).

The idea has its origins with the Scottish Land Commission whose advice to Government was that large-scale holdings are the most likely to pose a risk to the public interest by the excessive concentration of power over a large area.

However, the inclusion of criteria b) and c) is an admission that other circumstances can lead to concentrations of power also. Indeed the SLC itself argued that monopoly ownership of strategic infrastructure such as slipways, petrol stations as well as important cultural facilities and housing land supply can also be characteristics of concentrated landownership that could create a structural risk of excessive power. (2).

It is hard to see what objective justification there is for proposing a land reform bill whose key powers are only to be used in relation to large-scale holdings. I will explore this further in a future blog but key questions relate to avoidance (easy to transfer 100ha of a 3099ha holding into another company or trust and circumvent provisions of the Bill) and what benefits to communities or the environment is expected to be delivered.

The focus of the proposals is very much on providing communities with greater opportunities but for many parts of Scotland dominated by large-scale landholdings there are no communities to speak of.

For much of Scotland that is covered by large-scale landholdings, the biggest challenge is the restoration of nature. I was walking in Glen Affric last week (see image b elow) and was delighted to see the extensive work on woodland restoration undertaken by Trees for Life.

If we live in a climate emergency and want land reform to help transition to net-zero then there is a strong argument that environmental bodies should be given new rights and powers as well as community bodies.

There is also a vital question of why existing legislation covering deer management and nature conservation is not being used more vigorously. Again, such questions expose the lack of a clear set of desired outcomes and anticipated timescales for reform.

There is further lack of logic in the proposal to exclude “family farms” (however they may be defined). What’s so special about family farms? And if family farms are to be excluded, why not family forests and family estates?
The image below (apologies for the quality) is of severe environmental degradation on a landholding of less that 3000ha on a family farm. The land is in a National Park and has recently been sold to a Danish company. Why should land which is part of a National Park be excluded from the provisions of the Bill?

Strengthening the Land Rights & Responsibilities Statement (Part 5)

The Land Rights and Responsibilities Statement was introduced by Part 1 of the Land Reform (Scotland) Act 2016 and is an expression of principles to guide land policy but has no statutory force.

My own view has long been that some form of statutory responsibilities should be embedded within the land tenure system (a system which currently bestows only rights to those who own land). The next best solution is give them statutory force and provide remedies for any breaches. The proposals here do the the latter but again only in relation to large-scale landholdings.

This proposal is fairly uncontroversial but could be strengthened further by applying it to all land across Scotland.

Compulsory Land Management Plans (Part 6)

The paper proposes compulsory land management plans for all large-scale landholdings. This is not an unreasonable expectation but as with the Land Rights and Responsibilities Statement proposals, there is no good reason why it should not apply to all landholdings (or certainly far more of Scotland’s land than is encompassed by large-scale landholdings). They should be compulsory for example for all land in National Parks and National Scenic Areas.

Whilst such plans will produce some grater accountability, they (like the Land Rights and Responsibilities Statement proposals) do nothing in and of themselves to tackle the concentrated pattern of landownership. Indeed they risk doing the opposite by (in the words of the consultation paper) allowing landowners to benefit “from being able to demonstrate they are responsible stewards of the land”.

There is nothing revealed about how such management plans will be drawn up where the land is tenanted either by agricultural tenants, crofting tenants or hunting tenants.

Public Interest Test and Notification of Intention to Sell (Part 7)

The proposed public interest test would apply to the acquisition and sale of large-scale landholdings and the purpose is stated as being

to assess whether, at the point of transfer of a large-scale landholding, a risk would arise from the creation or continuation of a situation in which excessive power acts against the public interest.”

Where the test is met, the Government proposes that the sale could only proceed subject to specific conditions reflecting the reason that the sale was not considered to be in the public interest. Two examples are provided. The first is compulsory lotting where no one party could acquire all of the lots and the second is where the land could be offered to constituted community bodies.

The concept of a public interest test is sound but restricting it to large-scale landholdings has little logic. Equally the public interest will inevitably extend far beyond the two conditions provided by way of illustration and could include, for example,

  • the sale of land to environmental bodies
  • the sale of land or property (leased mountaineering huts or tennis courts) to sporting bodies and
  • recreational organisations
  • the sale of land or property to local individuals, businesses and associations
  • the sale of strategic land to local authorities
  • compulsory leasing to such bodies

This proposal is fraught with complexity and is a good example of a measure that is only being proposed because of the existence of concentrated patterns of power. It is an ideological choice to choose to mitigate concentrated power structures rather than eliminate them.

The other proposal covered in Part 7 is the prior notification to community bodies to sell large-scale landholdings. The paper argues that

This proposal responds to concerns that a combination of rapidly rising land values, and a rise in off-market transactions, is in effect excluding communities from access to ownership of large-scale landholdings.”

I am not convinced by these concerns and they are a poor basis for such a major reform. Few communities have expressed any interest in acquiring the kind of large-scale landholdings that have been the focus of recent market activity associated with carbon sequestration (many of which do not exceed anything like the 3000ha threshold). A better approach is to eliminate the market in carbon altogether so as to eliminate this speculative gold rush.

Key to reducing land values is better regulation of the market in general (such as insisting that owners live join their holdings) and, crucially, reform of land taxes. It is ironic that the owner of the largest extent of Scottish land, a Danish businessman, is paying substantial taxes to his home municipality in Denmark and next to none to the local authorities in which his land is situated.

New Conditions on Receipt of Public Funding (Part 8)

Part 8 introduces proposals that, unlike this in Parts 5, 6 and 7, apply to all land in receipt of “land-based-subsidies” and require them to comply with the Land rights and Responsibilities Statement.

The paper is silent on what constitutes such a subsidy and only mentions tree planting and peatland restoration. The largest subsidies of course are provided by means of agricultural subsidies (over £500million per year). All such public subsidies should be within scope of this proposal.

Subsidies are also provided by way of tax breaks such as the Small Business Bonus Scheme which is claimed by some of the wealthiest landowners in Scotland including the North Affric Estate which I walked through last week (owned in the Seychelles) and Cluny Estate in Inverness-shire owned by the Qatari royal family. Such tax breaks should also be encompassed by these proposals.

The proposal also includes a requirement that all recipients of such subsidies be registered and liable to pay tax in the EU or UK (though neither Question 27 nor 28 ask for views on this). This is sensible though it is unclear why the EU is included given the lack of transparency in some EU member states and that fact that the UK is no longer a member state and thus no longer subject to freedom of movement to capital.

Finally, a proposal is floated that all land in receipt of land-based subsidies be registered in the Land Register thus stimulating more rapid completion.

Land Use Tenancy (Part 9)

The paper proposes a new tenancy that would enable tenant farmers to engage in activities such as agroforestry, nature restoration and peatland restoration alongside conventional agricultural activities. This is possible under existing agricultural tenancies but freight with difficulty in many cases. The proposal is to allow existing tenants to convert to a land use tenancy.

This proposal is a sensible modernisation of agricultural tenancies to reflect modern land use priorities. Again, however, if the aim is to redistribute power and tackle concentration of landownership then an absolute right to buy for tenant farmers is what would represent serious land reform.

Small Landholdings (Part 10)

No proposals are presented in Part 10 which is about modernising smallholdings legislation. Consultees are invited merely to be kept informed of a separate small landholding consultation.

Transparency (Part 11)

A sense of deja vu here as the Government finally accepts that land (or at least large-scale landholdings) can only be acquired by legal entities registered for tax purposes in the EU or the UK. It is unclear why the proposed restriction is not simply a requirement to be registered in Scotland or at least the UK when the UK is no longer a member state of the EU.

The paper argues that this could “help deal with instances of absenteeism” but fails to say how this is to be achieved. In fact it will do no such thing unless there is a requirement for those in control of such entities to live on their landholdings or at least in Scotland and be a Scottish taxpayer.

This reference to absenteeism is curious as tackling this could and should be a central plank of land reform. It is hard to justify crofter with a few acres of bog and rock having by late to be resident within a set distance of their holding but owners of tens of thousands of acres can live anywhere they like in the world.

Other land related reforms (Part 12)

Finally, Part 12 asks consulters if they have any views on the future role of taxation to support land reform and about community benefits from natural capital.

Taxation has always been the ghost in the room of land reform. I have hinted above at how significant it is and will blog in more detail about it. The Scottish Government has been extremely reluctant to engage seriously with this question. During the passage of the Non-domestic Rates Bill in 2016-21, for example, opposed (together with the Conservatives) proposals to ensure that all rural land was on the Valuation Roll so that even if it were to be given 100% relief, could at least help to quantify the cost of such relief in relation to all other ratepayers.

Much of the intellectual work in this area has already been done by, for example, the Mirrlees Review and the Land Reform Review Group but Government has neglected it to such an extent that it offers no concrete proposals.

This is an area therefore where consulates should make suggestions (a more detailed blog on this topic will be published soon).

Some Final Thoughts (for now)

This blog is already very long and thus I shall not say much more but conclude on three final reflections.

Firstly, the neglected role of local government must be addressed. Far too much land reform decision making is centralised in Edinburgh when local authorities are perfectly capable of administering the kind of new regulatory functions envisaged by these proposals. As the Scottish Land Commission note in its 2021 Legislative proposals paper, (2)

The potential role of local authorities should also be considered. Running through all three proposed mechanisms is the underlying intention to better connect landownership and decision-making with local democratic accountability. In most northern European countries that have regulatory mechanisms for land ownership, decision-making is generally embedded at a municipality level. Sufficient connection to local authorities, as a means of connecting decisions with local and regional circumstances, should be built into consideration of these measures.”

There is no evidence that they have been. Indeed aside from some contemporary context, local authorities do not feature at all in the proposals.

Secondly, it is very unclear how exactly the proposals are envisaged to actually tackle Scotland’s uniquely concentrated pattern of private landownership. As mentioned previously, proven methods include inheritance land and taxation but neither of these feature as proposals.

As a consequence, the proposals legitimise the existent of large scale landownership whilst only introducing some accountability (a worthy aim) rather than the systematic elimination of concentrated patterns of power over land.

In my 1999 book, Scotland, Land & Power: an agenda for land reform, I wrote that

Land reform is not simply about tactical interventions in the status quo.¨ It involves reform in the way power is derived, distributed, transferred and exercised. It involves meaningful reform of the tenure system, the ownership of land, the market in land, the division of land, the use of land, the fiscal status of land and the occupation of land. And it involves eliminating those characteristics of the current system which serve to perpetuate the status quo, which frustrate the public interest and which are antithetical to a just, fair and open society in a new Scotland. It is thus a highly political venture because in order to promote social, economic and environmental advancement, it needs to challenge and reorganise existing power structures.”

These proposals are a good example of tactical interventions in the status quo.

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

NOTES

Details of the consultation can be found here.

(2) See Legislative proposals to address the impact of Scotland’s concentration of landownership. A discussion paper from the Scottish Land Commission, February 2021

 

Today marks an important moment in the struggle to reclaim rights for the people over common land.

In May 2005, I discovered an extant commonty in the Parish of Carluke (pictured red above). Commonties are ancient areas of common land, often very extensive, that provided residents of the parish with fuel, building materials, food, and a place to bleach linen, conduct meetings and undertake the distillation of exotic drink. Unlike in England where the commons were enclosed by individual Acts of Parliament, in Scotland an Act of 1695 created a simple judicial process that facilitated the division and privatisation of millions of acres of common land.

The Division of Communities Act 1695 remains on the statute book (when I invited the Scottish Government to consider repealing it, I was told that it remained of value for farmers and landowners – so much for land reform).

Over the next seven years, I and others undertook extensive research on the history of the common and concluded that there was indeed no owner and that it was an undivided common. Unfortunately, land reform has yet to create a statutory process for reclaiming such areas of land for the common good and thus we had to work out how to bring the land into community ownership.

We settled on the process of registering an a non domino title, one where the grantee was by their own admission not the owner of the land. This is a clever trick used by the landed class down the centuries. It felt curious to be using such a procedure but we proceeded anyway. It took some time for the Keeper of the Registers of Scotland to accept the deed. Various parties had to be consulted including the Queen’s and Lords Treasurer’s and Remembrancer. Eventually on 23 May 2012, the Keeper registered the title in the Land Register as LAN212232.

But that was not the end of the matter since the title remained open to challenge for ten years under Section 1 of the Prescription and Limitation (Scotland) Act 1973 after which, should no challenge be forthcoming, the title would be beyond challenge.

Thus today marks the 10th anniversary of the registration and Carluke Development Trust are the full and indisputable owners of the former parish common.

My blog of 16 January 2014 contains further details and today I am pleased to be able to finally publish the report that I wrote for Carluke Development Trust. Until now it has been deemed inadvisable to draw attention to some of the historical research for fear of alerting a possible claimant. Today that fear disappears and provides, I think, cause for some modest celebration.

lornestreet_citychambers_670

Lorne Street tenants protesting at City Chambers, Edinburgh November 2015

The American land and tax reformer, Henry George, observed in his book, Progress and Poverty, that “thirty thousand people have legal power to expel the whole population from five-sixths of the British Islands. The vast majority of the British people have no right whatsoever to their native land, except to walk the streets.”

The history of much of the world is a history of property, of the appropriation of territory and the framing of laws designed to protect the novel concept of private property. Those frozen out of this process – the poor and the landless – had to make do with belated concessions to protecting their rights – concessions that came too late for many as James Hunters’s new book on the Sutherland clearance, Set Adrift Upon the World, makes painfully clear. In the year of the Strathnaver Clearances in 1814, Sir John Sinclair, Caithness landowner and author of the first Statistical Account of Scotland ,observed that, “in no country in Europe are the rights or proprietors so well defined and so carefully protected.”

To be a landowner was to be endowed with economic, legal, social and economic power. On the basis that the primary responsibility of government was to defend the country, those who owned the country presumed to be best placed to monopolise the electoral franchise and undertake that task.

During the 18th and 19th century, fortunes were made through the ownership of urban land in particular. As cities expanded, demand for land enriched those fortunate enough to hold the title deeds to the fields and meadows that were acquired to build the houses, factories and infrastructure necessary to support a modern urban economy.

In Edinburgh, the street names reveal this history in Buccleuch Street, Hopetoun Crescent Roxburgh Terrace, and Moray Crescent. One of the beneficiaries of this legal dispensation was George Heriot, the Edinburgh jeweller, whose death in 1624 established the Heriot Trust which was run by the Provost, Baillies and Councillors of the City together with the Ministers of the town. It rapidly established a virtual monopoly on land around Edinburgh

An exclusion zone was imposed upon Edinburgh by the activities of the Heriot Trust’s acquisitions” wrote urban historian, Professor Richard Roger. “Scarcely an acre in the neighbourhood came into the market which they did not instantly acquire for the benefit in perpetuity of Heriot’s Hospital”. By the end of the 19th century, the Trust owned over 1700 acres of land around the City. Much of this comprised land between Edinburgh and Leith.

edinburgh_1852_670

Samuel Hunter’s timber yard in Leith, 1852. Lorne Street was built along the south.

One of those who held a feu from the Heriot Trust was Samuel Hunter, a stonemason and builder who owned a yard on Leith Walk at Smith Place. He ran a successful business as a property developer and builder and in 1879, was granted a further feu by the Heriot Trust to erect blocks of tenements at the western end of what is now Lorne Street.

When he died in 1893, his daughter Agnes Hunter inherited a substantial property portfolio including her own elegant house on Dalrymple Crescent in the Grange. Upon her death in 1954, her executors established the Agnes Hunter Trust which continues to own over 90 tenement flats in Lorne Street occupied by over 200 residents. The Trust is a charity and provides grants to health and social welfare projects.

The Trust established a reputation as a landlord that provided long-term secure tenancies. “We were promised a tenancy for life”, said one tenant. “Stay as long as you like”’, another was told. The Agnes Hunter tenants comprised a close-knit community of all ages. The oldest resident has lived there for 74 years, having moved in aged 2 years old. The younger children all attend Lorne Primary School adjacent to most of the tenement blocks.

But whilst tenants felt secure, their homes suffered from poor maintenance. Damp persisted for years in flats, waste water rose through bath and kitchen pipes, window frames rotted and repairs were ignored. Many tenants undertook work themselves, installing bathroom sinks and even a heating system. Some tenants began leaving and others were evicted. In July 2015 all 200 of the Trust’s tenants were informed by letter that “retention of The Agnes Hunter Trust’s property portfolio was no longer in the interests of the Trust” and all households were to be evicted by the end of the year.

A determined campaign by residents was launched and the Lorne Community Association secured a stay of execution until the end of January 2016. Following a petition to Edinburgh Council, this was extended to July 2016 in order to allow time to try and establish a housing co-operative or similar solution.

To the wider world, evictions on this scale came as something of a shock. Few knew anything about the Agnes Hunter Trust. I had some vague recollections of my own from 7 years spent living in a flat on Lorne Street but I forgot all about it until the story appeared in the newspapers.

At a time when the Scottish Parliament is, at long last, considering a Bill – the Private Sector (Tenancies) (Scotland) Bill – to modernise tenants rights and provide greater security of tenure, it is worth reflecting on what a shocking state of affairs these evictions represent. Most tenants are on Short assured tenancies. Despite the assurances of lifetime security, most tenants in law were never more than 2 months from eviction.

The short-assured tenancy was introduced in the 1988 Housing Act. The idea was that these tenancies would provide a landlord-friendly tenure for the private sector, allowing it to grow at the same time as Housing Associations were given the freedom to access private finance. The result has been the growth of one of the most unregulated, liberal and (from a tenant’s perspective) insecure rental markets in Europe. Britain’s obsession with homeownership has led to eye-watering levels of private debt, house prices outstripping earnings, a speculative volume housebuilding industry that profits from land value appreciation and consumers spending growing proportions of their income on housing costs.

Sometimes it takes a case like Lorne Street to focus minds on long-standing policy failures. The private rented sector has grown in a haphazard manner driven by buy-to-let landlords and little in the way of a strategic plan. A system where 200 tenants can be evicted on a whim reveals serious flaws in Scotland’s housing tenure. One of the most glaring question (which has, as yet, not been addressed) is quite simple.

Why should 100 families have to be evicted merely because the landlord wishes to sell their homes?

The short answer is, of course, because the law allows it. But this situation would never arise in, for example Germany. The fact that a pension fund might wish to sell its portfolio of flats in Hamburg to another investor does not mean that all the tenants have to be evicted. To the Germans such an idea would be ridiculous. Owning rental property is perfectly legitimate but if you sell it, tenants stay put in their homes. Tenants enjoy security of tenure and the landlord a regular return on their investment.

The complacency in addressing such fundamental questions was evident when the Chair of the Agnes Hunter Trust, Walter Thomson, spoke at the City of Edinburgh Council Petitions Committee on 5 November. In a statement that had tenants draw breath for its audacity and cold logic, he claimed that,

The Trust is not in existence to provide housing.The properties are an asset which enables the Trust to make funding available for charitable causes. Miss Hunter’s trust has never been a social landlord.”

In other words, we have no responsibility to families we have housed for over 60 years. They are merely an asset to generate a revenue stream – this from the Chair of a Scottish charity which, among other things, funds homelessness projects.

Such attitudes are an indictment of 15 years of devolution. The Scottish Government’s Private Housing (Tenancies) (Scotland) Bill will have its final reading next Thursday 17 March. It introduces welcome changes to the private rented sector including a new tenancy that affords greater security for tenants. But, crucially, the wish to sell a tenanted property remains a lawful reason to evict a tenant. Whilst such a provision has a role in a transitional period, it will do nothing to contribute to the kind of long term security enjoyed by tenants in Germany.

Whilst crofting tenants, agricultural tenants and commercial tenants are lawfully entitled to remain in occupation of their crofts, farms and offices when the property is sold, people whose tenancy is their home are rendered homeless on the arbitrary whim of the owner. It is an antiquated state of affairs that has no place in a modern democracy.

As Tony Cain, the Policy Manager for the Association of Local Authority Chief Housing Officers observed recently,

The unstated, and unquestioned, view that underlies these provisions is that eviction and homelessness are appropriate management tools to address business failure or change.

These provisions ensure that private landlords or lenders can remove tenants when thing go wrong with the business or they want to disinvest. And most importantly, the value of the asset is protected by ensuring that it is linked directly the property values in owner occupation.  It also means they can borrow more to invest and make bigger returns on capital values.

Equally importantly what they also do is transfer the cost (aside from the personal trauma and disruption to the tenant) on to the public sector.

By protecting the value of private rented houses in this way and transferring the risk and costs of business failure on to the tenant and local authorities, landlord and investors can be confident that they can sell out relatively quickly and at very little cost to them. 

The Lorne Street tenants have been given until July 2016 to see whether they can devise a solution whereby they form a co-operative to take over ownership of perhaps persuade a housing association to step in. They deserve all the support we can provide.

Meanwhile MSPs should question whether it is right that folk who have lived in their homes for decades deserve to be treated as little more than collateral damage in pursuit of the owner’s short term interests. In particular, they should examine critically Schedule 3, Part 1 1(1) of the Private Housing (Tenancies) (Scotland) Bill – namely, “It is an eviction ground that the landlord intends to sell the let property”. If tenants are to feel secure in their homes, this provision should be removed.

Patrick Harvie MSP has tabled an amendment to remove this ground for eviction.

Scotland needs investment in a sustainable, high-quality, affordable rented sector. It needs to learn from successful countries such as Sweden and Germany. Above all, it needs to ensure that never again is a community treated with the contempt and arrogance faced by the families of Lorne Street.

UPDATE 19 APRIL 2020

This blog, together with a previous one published on 29 September 2015 were the subject of defamation proceedings brought by Wildcat Haven Enterprises CIC against myself in a citation from the Court of Session served on me on 21 March 2017. Since 30 March 2017, following legal advice, the blogs have been password protected. The case (Wildcat Haven Enterprises CIC vs. Andy Wightman A111/17) was heard by Lord Clark at the Court of Session from 29 October 2019 – 8 November 2019. A Decision by Lord Clark was published on 11 March 2020 which rejected all of the pleas of the pursuer in what was a comprehensive victory for me. As a matter of law therefore neither of these two blogs are defamatory. The Pursuer issued a statement to the media on 11 March stating that “we will certainly appeal the decision”. However, the 28 day period in which to appeal has now expired and no appeal has been lodged. I am pleased therefore to now remove the password protection and enable them to be read as they were published subject to one caveat.

Lord Clark concluded that in the blogs (and a few tweets which were also complained of) I had made four untrue statements. Contrary to claims by my detractors, none of these was a lie. Indeed Lord Clark made clear that I was a “credible and reliable witness” who “gave his evidence in an honest, straightforward and coherent manner”. Lord Clark stated that “I accept his evidence about what he knew and did not know at the time of the various publications” and that “the suggestion he made statements that he knew were untrue simply has no proper basis.” [Lord Clark at 73]. I have thus edited the two blogs with a footnote marked in (red) to indicate the relevant untruths and why they arose.

Finally, what was revealed of this case in Lord Clark’s decision was a fraction of what was revealed in Court. What was revealed in Court was a fraction of the evidence assembled in the 1494 Productions (written documents lodged as evidence) lodged in the Court (59 by the Pursuer and 1435 by Defender). And what was revealed in the Productions was a fraction of what I have learned in the course of extensive preparatory research over the past 3 years about the activities of Highland Titles and Wildcat Haven Enterprises CIC. I will be publishing a detailed blog revealing what really went on over the past three years. Given the litigous nature of both parties, I will, of course, have these blogs legalled before publication.

UPDATE ENDS

I intended to have published this blog on Highland Titles Day (10 February – see Malcolm Combe’s blog) ) Apologies to those who were expecting it then.

Last September, I blogged about the latest effort by Highland Titles Ltd. to raise lots of money from people who think they get to own some land in Scotland and help conservation at the same time (see a recent advert in BBC Wildlife magazine – 1.6Mb pdf – for a flavour of their business model).

Highland Titles Ltd. is a company registered in Alderney. It is owned by Highland Titles Charitable Trust which is registered in Guernsey. See my blog of 12 Feb 2015 for further background. The company makes its money from purporting to sell small plots of land as “souvenir plots”. The controversy over the affairs of this company has been generated because no-one who buying such plots can in law become the owner of the land and because the financial affairs of the company remain opaque, being registered in a secrecy jurisdiction.

In its latest efforts to garner greater respectability, Highland Titles has become involved with a conservation project called Wildcat Haven CIC. The fundraising arm of this organisation is a Community Interest Company called Wildcat Haven Enterprises CIC with its registered office at Sage & Co Chartered Accountants in Denbighshire, North Wales. There are two Directors of the company, Emily O’Donoghue and Douglas Wilson. Mr Wilson is resident in Alderney and is also a a Director of Highland Titles Ltd (1) and a Trustee of Highland Titles Charitable Trust for Scotland.(2)

One of the requirements of a Community Interest Company is the provision of an asset lock that restricts the disposal of assets of the CIC. Assets can be transferred to another CIC or charity and such a body must be designated in the Articles of the CIC. In the case of Wildcat Haven Enterprises CIC, the designated body to become the potential recipient of the assets is Highland Titles Charitable Trust for Scotland.

In response to my September blog, Emily O’Donoghue (who is a Director of both Wildcat Haven CIC and Wildcat Haven Enterprises CIC) responded and I published the response as an update to the blog. In turn, I then posed a number of questions to Emily as follows.

  1. It may be a bit of fun but you are asking folk to help you by “actually buying part of the land we plan to conserve” You need to be much clearer that people who spend £100 do not become owners of the land.
  2. You say that part of the Loch Loyne site has been gifted to you. Can you tell me when this transaction took place and when it was submitted to the Registers of Scotland for recording? Can you advise the extent and location of this land?
  3. Are there any wildcats on the Loch Loyne land?
  4. Why is my IP address blocked from viewing your website?
  5. What is the role of Highland Titles in your fundraising? Do they receive any payment? Do they receive any commission on each plot sold?

I never received a reply but can provide an update on some of the questions.

  1. The Wildcat Haven website still contains the claim that “We are asking you to help us by actually buying part of the land we plan to conserve.”
  2. Following Emily’s claim that part of the land had been gifted “to us”, I checked the title and discovered that Highland Titles Ltd. remained the owner and had gifted no land to Wildcat Haven. Interestingly, on 9 December 2015, however, Highland Titles Ltd. made an application to the Registers of Scotland to transfer part of Paitna Wood/BumbleBee Haven/Wildcat Haven to Wildcat Haven Enterprises CIC.
  3. No response.
  4. No response.
  5. No response.

It remains unclear what financial arrangements have been entered into and why Douglas Wilson is a Director and why Highland Titles Charitable Trust for Scotland is the designated beneficiary of the assets of Wildcat Haven Enterprises CIC.

As I pointed out in my September blog, if all of the 75 hectares of Paitna Wood/BumbleBee Haven/Wildcat Haven/Wildernesse Wood were sold even as 10 square foot plots, this would generate £40.35 million in sales revenue paid to a company in Alderney in the Channel Islands. In normal circumstances, a conservation project would be established as a charity and a trading body or fundraising enterprise would be established as a whole owned subsidiary of the charity. There’s a lot of money at stake.

Most recently, Wildcat Haven has been seeking to become involved in the community acquisition of a Forestry Commission forest by Loch Arkaig.

Finally, a very significant development took place in early June 2015.

Highland Title’s bankers and corporate service providers in Guernsey gave notice of the termination of their services.

Wildcat Haven Enterprises CIC was incorporated in 30 June 2015.

UPDATE FOOTNOTE 19 APRIL 2020

(1) Douglas Wilson in fact was not a Director of WHE at the time of publication of this Blog. He was a Director of Wildcat Enterprises CIC from 6 June 2015 to 21 August 2015 (when he resigned) and again from 21 October 2015 until 17 February 2016 when he again resigned. Guernesy does not have a very transparent, publicly accessible registry of companies being one of the most secretive jurisdictions in the world. Thius, in order to obtain information about when a Director was appointed or resigned, one has to contact the Registry with a specific request. As with my research for Blog 1 in September 2015, I phoned the Registry to find out if Douglas Wilson was still a Director of WHE and was informed that he was. Critically, as noted in the first sentence of this Blog, I had intended to publish it on Highland Titles Day, 10 February and had by then completed all of my research including this call to the Registry. For reasons I cannot recall (although I was very busy with the forthcoming Holyrood election and my partner was abroad in India) I did not publish the Blog until 24 February 2020 by which time Douglas WIlson had resigned as a Director of Highland Titles Ltd. It was thus an oversight on my part not to have checked the whole Blog for any factual matters that might have changed between 10 February 2016 and the date of publication.

(2) Douglas Wilson was in fact not a Director of Highland Titles Charitable Trust for Scotland at the time of the publication of this Blog. Unlike the Guernsey Registry of Companies (see footnote (1) above), the Registry of Charities is publicly available online. I checked the entry for HTCTS during research for the Blog and noted that Douglas Wilson was recorded as a Director of HTCTS. I therefore relied upon this official source in good faith in writing the Blog. In fact, Douglas WIlson had resigned as a Director of HTCTS on 6 July 2015. This was not reported in the Guernsey Registry of charities until an update was published on 20 June 2016.

The Scottish Tenant Farmers Association issued the following media release today.

WITHOUT ACTION, FARM EVICTIONS WILL BECOME SCOTLAND’S SHAME

The Scottish Tenant Farmers Association has welcomed the focus given to land and tenancy reform at last week’s SNP conference and the clear signal from SNP grassroots support for strengthening the land reform proposals in the current bill.  The delegate’s call followed a powerful documentary on Channel 4 TV which highlighted what are seen as some of the worst areas of bad land and estate management in Scotland.

The conference also heard pleas to halt the impending eviction of tenant farmer Andrew Stoddart whose tenancy on Colstoun Mains in East Lothian is due to come to an end in a few short weeks.  Andrew Stoddart, who also spoke at a fringe event, is the first of the Salvesen Riddell tenants to be forced to quit their farms following the Remedial Order passed by the Scottish Parliament last year.

Commenting on the grassroots “rebellion” at the SNP conference, STFA Chairman Christopher Nicholson said: “STFA has been concerned that the government may have been wilting in the face of intense pressure from landed interests, intent on weakening what can only be seen as an already diluted bill.  We hope that this message from the conference will strengthen the government’s resolve to deliver more radical and much needed reforms to create fairer conditions for tenant farmers, stimulating investment on agriculture, greater access to land and encouraging opportunities for new entrants.”

STFA has also become appalled at the recent treatment of tenant farmers affected by the Salvesen Riddell Remedial Order, including Andrew Stoddart who faces imminent eviction without having had the opportunity to take part in the government’s mediation process or be considered for any recompense which should be due from the government following the implementation of the Remedial Order.

STFA Director, Angus McCall who has been involved in the Salvesen Riddell debacle for the last few years said: “This whole episode has become Scotland’s shame which has seen the victims of a legal error hung out to dry by uncaring government lawyers and an inflexible government process.

“This tragic episode stemmed from legislation passed in 2003 which was proved to be defective.  The UK Supreme Court then instructed the Scottish parliament to remedy the situation and, as a consequence, 8 families will lose their farms and livelihoods.  However, rather than seeking to fulfil commitments made by government to parliament and the industry,  government lawyers are abdicating all responsibility and liability and refusing point blank to consider any compensation package for the affected tenants.  These tenants are now faced with a lengthy and expensive court battle to exert their rights.

“STFA has already written, and is writing again to the First Minister, Cabinet Secretary, Richard Lochhead, the RACCE committee and MSPs to get the matter resolved and allow these tenants and their families to move their lives on, but all to no avail.  Ministers, MSPs and some officials have expressed a willingness to help, but seem to be held to ransom by lawyers.

“We all appreciate that this is a complex situation, but the rulers of this country must accept a moral responsibility for the damage done though the actions of a previous government to these families and move without further delay to find a way towards an equitable settlement rather than forcing them into a long drawn out, expensive and life sapping legal battle.  This has been devastating for all concerned and, after 18 months of prevarication, the tenants’ lives are still on hold and they are no further on in knowing their future.

“This affair has been a well-kept secret, but it must be time for the Scottish people to wake up and realise what is going on and allow common decency and a sense of fair play to prevail and put an end to this sorry affair before any lives are tragically lost as has happened in the past?”

UPDATE 19 APRIL 2020

This blog, together with a subsequent one published on 24 February 2016, were the subject of defamation proceedings brought by Wildcat Haven Enterprises CIC against myself in a citation from the Court of Session served on me on 21 March 2017. Since 30 March 2017, following legal advice, the blogs have been password protected. The case (Wildcat Haven Enterprises CIC vs. Andy Wightman A111/17) was heard by Lord Clark at the Court of Session from 29 October 2019 – 8 November 2019. A Decision by Lord Clark was published on 11 March 2020 which rejected all of the pleas of the pursuer in what was a comprehensive victory for me. As a matter of law therefore neither of these two blogs are defamatory. The Pursuer issued a statement to the media on 11 March stating that “we will certainly appeal the decision”. However, the 28 day period in which to appeal has now expired and no appeal has been lodged. I am pleased therefore to now remove the password protection and enable them to be read as they were published subject to one caveat.

Lord Clark concluded that in the blogs (and a few tweets which were also complained of) I had made four untrue statements. Contrary to claims by my detractors, none of these was a lie. Indeed Lord Clark made clear that I was a “credible and reliable witness” who “gave his evidence in an honest, straightforward and coherent manner”. Lord Clark stated that “I accept his evidence about what he knew and did not know at the time of the various publications” and that “the suggestion he made statements that he knew were untrue simply has no proper basis.” [Lord Clark at 73]. I have thus edited the two blogs with a footnote marked in red to indicate the relevant untruths and why they arose.

Finally, what was revealed of this case in Lord Clark’s decision was a fraction of what was revealed in Court. What was revealed in Court was a fraction of the evidence assembled in the 1494 Productions (written documents lodged as evidence) lodged in the Court (59 by the Pursuer and 1435 by Defender). And what was revealed in the Productions was a fraction of what I have learned in the course of extensive preparatory research over the past 3 years about the activities of Highland Titles and Wildcat Haven Enterprises CIC. I will be publishing a detailed blog revealing what really went on over the past three years. Given the litigous nature of both parties, I will, of course, have these blogs legalled before publication.

UPDATE ENDS

If you plan to set up a fundraising campaign for an environmental project, it is a good idea to think carefully about who is involved and what techniques you plan to use.

Wildcat Haven is a project designed to protect the Scottish Wildcat by preventing hybridisation with feral cats and providing a network of reserves to manage as wildcat habitat. (1)

Yesterday, it launched its campaign. Sponsorship has been provided by Volkswagen, a company responsible for polluting the environment with nitrous oxide emissions that it attempted to conceal through one of the biggest corporate frauds of recent decades. The other sponsor is our old friend Highland Titles, a company based in Alderney that is wholly owned by a charitable trust (Highland Titles Charitable Trust for Scotland) registered in Guernsey. See my blog of February for further information on their operations.

Some time ago, Highland Titles Ltd. blocked my IP address but it came as something of a surprise to discover that I have also been blocked from Wildcat Haven’s website despite only having just seen it. Despite this, I have access via a proxy IP in Germany.

Highland Titles appear to have established a very close relationship with Wildcat Haven which operates via Wildcat Haven CIC (Community Interest Company) and Wildcat Haven Enterprises CIC. The Registered Address of both is in Cornwall. One of the defining features of a Community Interest Company is the asset lock – provision that in the event of winding up, the assets must transfer to a nominated body that is a community interest company, charity or Scottish charity; or a body established outside Great Britain that is equivalent to any of those persons.(2)

In the case of Wildcat Haven CIC, the nominated body is a community-based company, Sunart Community Company. The money, however, is being raised by Wildcat Haven Enterprises CIC and the nominated body here is Highland Titles Charitable Trust for Scotland. Thus, in the event of Wildcat Haven Enterprises CIC being wound up, its assets will be taken over by Highland Titles Charitable Trust for Scotland in Guernsey.

Wildcat Haven Enterprises CIC was incorporated on 30 June 2015 with two Directors, Mrs Emily O’Donoghue and Mr Douglas Wilson. Wilson is a Director of Highland Titles Ltd (1) and a Trustee of Highland Titles Charitable Trust for Scotland. (2)

Wildcat Haven has adopted Highland Title’s dubious methods of selling small souvenir plots of land and claiming that the purchaser is the owner (see extensive faq to this effect). This claim was comprehensively debunked in February this year by legal blogger loveandgarbage. If there remains any doubt, here is the content of a letter written by Professor George Gretton, Lord President Reid Professor of Law at Edinburgh University to the Daily Record newspaper.

Dear Mr Ferguson,

Under Scots law, ownership of land passes from seller to buyer by registration in the Land Register of Scotland. No registration? Then no transfer. This is currently set out at section 50 of the Land Registration etc (Scotland) Act 2012. (The previous law was essentially the same.)

(“Souvenir plot” is a term defined in section 22 of the 2012 Act.)

Therefore, if a souvenir plot is sold, registration is required, if the buyer is to acquire ownership of the plot.

But the Land Register does not accept souvenir plots: this rule is set out at section 22 of the 2012 Act. (The previous law was essentially the same.)

So if a company sells a souvenir plot, the sale cannot be completed. The buyer of the plot does not become owner of the plot. Ownership of such plots remains with the company.

Whether buyers of souvenir plots are informed that the seller will retain ownership is something I have no information on.

Sincerely, George L Gretton

Lord President Reid Professor of Law University of Edinburgh
School of Law
Old College
South Bridge
Edinburgh 
EH8 9YL

Professor Gretton should know – he wrote the Land Registration (Scotland) Act 2012. See also, a recent academic paper by Jill Robbie and Malcolm Combe which reviews the law in this area.

The plots being offered for sale by Wildcat Haven cost from £30 to £250 for one square foot of land which purchasers are assured, gives them a “personal right to a souvenir plot of land in Wildernesse Wood and the opportunity to change their name to Lord or Lady Wildernesse. Wildernesse Wood is described as “part of the first Wildcat Haven”. “We are asking you to help us by actually buying part of the land we plan to conserve.”, the website claims.

So where is Wildernesse Wood? The Wildcat Haven website does not say, but from this promotional video, it is clear that it is a plot of land above Loch Loyne on the A87 between Invergarry and Glen Cluanie.

In the video, Dr Paul O’Donoghue is filmed standing in the wood. He claims that “Every square foot of land we buy has a direct positive impact on the Scottish wildcat. By supporting this project, you’re helping save the Scottish wildcat step by step.”

There are two problems with this claim.

First of all, this land is, in fact owned by Highland Titles Ltd. who are already selling souvenir plots in a “nature reserve” they have named Bumblebee Haven where you can purchase plots ranging from 10 square feet (£49.99) to 1000 square feet (£499.99) and call yourself Lord or Lady Glencoe (even though the land is 50 miles north of Glencoe).

The land was acquired in February 2014 and the title can be seen here and the plan here  The land is 75ha in extent which, if all sold in 10 square foot plots would generate £40.35 million in sales revenue paid to a company in Alderney in the Channel Islands.

But the more fundamental problem is that the Wildcat Haven project is in Ardnamurchan and Morven – see map below.

The land that supporters are being invited to acquire is not only already owned by a company in Alderney and being sold plot by plot for bumblebees, this “first wildcat haven” is 60 miles to the north of Ardnamurchan and Morven and well outside the area being promoted for wildcat conservation.

I offer this information in the spirit of consumer advice to anyone considering taking up the offer to become the owner of a square foot of land to create a Wildcat Haven.

AN ADDENDUM

As an addendum to the Highland Titles blog in February, I contacted the Chief Minister of Guernsey Jonathan Le Tocq to ask whether it would be possible to examine copies of Annual Returns and Accounts of both Highland Titles Ltd., registered in Alderney and Highland Titles Charitable Trust for Scotland, registered in Guernsey. As I argued then,

Revenue is paid into a company registered in Alderney but as no accounts are published, it is impossible to be sure. The sole share is held by Wilson and McGregor as Trustees for the Guernsey charity. Under the law of Guernsey, no charity is obliged to provide accounts for public inspection and it need only file accounts under certain circumstances.

Thus nobody knows if in fact the charity is in receipt of any funds whatsoever. As the sole shareholder it is not entitled to have any of the revenues of Highland Titles Ltd. transferred to it. These revenues may well be paid out by the Alderney company as management fees or any manner of other payments to third parties.”

Mr Le Tocq informed me that under Guernsey law, the charity is not required to submit any financial returns and access to the Alderney company records would only be available to law enforcement agencies if there was evidence of criminal conduct.

Thus, because this land is owned in an offshore tax haven, we are unable to obtain any information about what happens to the money generated by selling off souvenir plots.

(1) There is some disagreement over the appropriate strategy to be adopted to save the Scottish wildcat. An official project, Scottish Wildcat Action is being run by 20 organisatiosn with the support of the Scottish Government and Forestry Commission among others. Those behind the Wildcat Haven project, however, have criticised the official programme.

(2) The Community Interest Company Regulations 2005

UPDATE 1500hrs 30 Sep 2015

The following response was emailed to me by Emily O’Donoghue and posted on the Wildcat Haven website here. The response is also contained in a comment below this post together with my follow up questions.

Dear Andy,

Just hoped to respond briefly to your primary concerns about the Wildcat Haven project.

Highland Titles Charitable Trust is currently listed as our nominated body, it is acting as a placeholder whilst we agree with a few local organisations in the West Highlands who would be best placed to become the ongoing nominated body. Of course, you’ll have to wait and see on this one, but we have already sent in paperwork replacing HT with another organisation, I’m sure records will be updated shortly.

Our website repeatedly states that the plots being sold are souvenir plots and “a bit of fun”, our own FAQ outlines that registration of souvenir plots is legally impossible so this seems little revelation.

In terms of location, the current Haven fieldwork area is in West Lochaber (Ardnamurchan, Morvern and Sunart).  We have been highly successful in neutering feral cats in this area (we have neutered 50 in the last 7 months alone, leaving close to 500 square miles free of intact feral or pet cats) and are now ready to expand. You are right to highlight that the land in Loch Loyne is north of the current Haven area, however that is the very point, we are expanding northwards and the the long term goal has always been to cover the entire Highlands west of the Great Glen. Loch Loyne is ideally situated being to the east of the Knoydart peninsula and near to a major land bridge to the rest of the Highlands, which needs to be protected from feral cat migration. Wildcat monitoring activities are already underway in the area, we are also looking to start operations in Sutherland which you will note is also well north of the current Haven zone, as well as looking to buy land within the current fieldwork area.

Part of the Loch Loyne site has been gifted to us by Highland Titles and no plots in the area provided to us have been previously sold, so it was free for them to pass on, allowing us to offer actual physical plots to customers immediately, rather than just a promise of buying land in future.

Wildcat Haven has been around protecting wildcats since 2008, our team comes with considerable scientific and conservation credibility, we are currently the only effort to protect wildcats in the wild rather than place them in captivity and our work has been commended and supported by organisations such as Humane Society International for its exceptional standards of animal welfare and delivery of humane feral cat control, as well as receiving considerable coverage across national media recording our work with feral cats, wildcats, local schools and communities for many years.

We’d also like to take this opportunity to thank you for providing us with reduced rate access to the Who Owns Scotland database around 2008/2009 when the project was starting up and needed to start communicating with landowners; you helped us get where we are today, thanks a lot for your support and promotion of the Wildcat Haven project.

Emily O’Donoghue,
Director,
Wildcat Haven

I replied as follows.

Emily, 

Thanks for your response. 

1. It may be a bit of fun but you are asking folk to help you by “actually buying part of the land we plan to conserve” You need to be much clearer that people who spend £100 do not become owners of the land.

2. You say that part of the Loch Loyne site has been gifted to you. Can you tell me when this transaction took place and when it was submitted to the Registers of Scotland for recording? Can you advise the extent and location of this land?

3. Are there any wildcats on the Loch Loyne land?

4. Why is my IP address blocked from viewing your website?

5. What is the role of Highland Titles in your fundraising? Do they receive any payment? Do they receive any commission on each plot sold?

Thank you.

UPDATE FOOTNOTE 19 APRIL 2020

(1) Douglas Wilson in fact was not a Director of WHE at the time of publication of this Blog. He was a Director of Wildcat Enterprises CIC from 6 June 2015 to 21 August 2015 (when he resigned) and again from 21 October 2015 until 17 February 2016 when he again resigned. Guernesy does not have a very transparent, publicly accessible registry of companies being one of the most secretive jurisdictions in the world. Thius, in order to obtain information about when a Director was appointed or resigned, one has to contact the Registry with a specific request. During my research for this blog, I thus phoned the Registry to find out if Douglas Wilson was still a Director of WHE and was informed that he was. I thus made the claim I did in good faith relying upon the only official source able to provide the information.

(2) Douglas Wilson was in fact not a Director of Highland Titles Charitable Trust for Scotland at the time of the publication of this Blog. Unlike the Guernsey Registry of Companies (see footnote (1) above), the Registry of Charities is publicly available online. I checked the entry for HTCTS during research for the Blog and noted that Douglas Wilson was recorded as a Director of HTCTS. I therefore relied upon this official source in good faith in writing the Blog. In fact, Douglas WIlson had resigned as a Director of HTCTS on 6 July 2015. This was not reported in the Guernsey Registry of charities until an update was published on 20 June 2016.

Image: Badinloskin, Sutherland

This is the Keynote Address by Professor James Hunter given to the Community Land Scotland Annual Conference, New Drumossie Hotel, Inverness, 21 May 2015.

James Hunter

In September 2009, the best part of six years ago, I was opening speaker at a Community Land Conference held in Harris.

The people there – some of you here today – were mostly from localities – from islands and estates – that, since the early 1990s, had been bought by the folk living on them.

We recognised in that a big achievement.

Our purpose, though, was not to celebrate success.

But, in a way, to do the opposite.

That’s clear from my own words that day in Harris.

I spoke, of course, of what had been accomplished.

More homes. More jobs. New businesses. Locally controlled renewables. Rising populations.

And above all else, what’s always seemed to me by far the greatest gain that comes from effort of the sort you’ve been, and are, engaged in.

What, at that Harris gathering, I called: ‘The boost community ownership gives to the self-esteem, self-confidence, of everyone involved with it.’

‘All this you know,’ I said then, ‘and I don’t propose to dwell on it.’

What I said next was this.

‘What I want to focus on is the public policy environment in which community ownership has taken off and prospered.’

‘For while community ownership,’ I said, ‘could not have succeeded in the absence of the tremendous efforts made by groups represented here, neither could it have succeeded without support from government and its agencies.’

‘It’s my belief,’ I said, ‘that, since the present Scottish government took office, this support, which grew steadily under previous administrations, has lessened very markedly.’

The government I spoke of was the SNP administration that took office two years earlier.

And since, let me be clear, I’m an SNP member, I wasn’t motivated by hostility to that party.

I was, I think, expressing what was then a common worry in community land circles.

A worry that, while in the early years of Scotland’s restored parliament, land reform, community land ownership, had been way up there in bright lights, those things – politically at any rate – had somehow ceased to matter.

That’s why, I guess, that Harris conference was called.

To work out what was needing done to put community land ownership, the wider cause of land reform, back on the Scottish government’s agenda.

Well that, for sure, ain’t something that need worry us today.

With a Community Empowerment Bill well through the Scottish Parliament …

With a Land Reform Bill being published in the next few weeks …

With all of that going on right now at Holyrood …

If anything, you wonder – now that land, and who controls it, is so central to our politics – just how the Scottish government’s got time for other things.

Why exactly this has come about is a big question.

It’s bound up, very clearly, with the wider politics of Scotland – with the way that, over the last year or two, for reasons we all know about, there’s been far more engagement, than for several generations, with where Scotland should be headed.

And not just constitutionally.

What’s been, what is, central to the thinking of an awful lot of people who, this last year or two, have got involved in what’s been happening … is something that goes way beyond where sovereignty’s located.

That something is, I think, a feeling that unfairness, inequality have of late become so glaring, so destructive … that this unfairness, inequality, need one way or another reining in.

This feeling’s not peculiar to Scotland.

Nor is concern about the damaging effects of inequality confined to people on the left.

Over the last year or so, there’s been growing recognition, in very many quarters, that extreme concentrations of wealth are not just damaging the world’s poor.

They’re hampering development across the board … by undermining the effectiveness of every capitalist economy.

Gobally, that view’s repeatedly expressed now by, for instance, International Monetary Fund president Christine Lagarde.

More locally, here in Scotland, to repeat, demands for greater social justice are increasingly bound up with politics of the sort that brought about the electoral drama that unfolded just two weeks back from today.

What, down the track, might a socially just Scotland look like?

Well, I’ve no exact idea.

But it wouldn’t be a Scotland, I believe, where half the country’s privately owned land is controlled by just 432 owners.

A lot of folk think likewise.

And that, I reckon, is one reason why the cause of land reform has of late been getting the attention that it has.

But it’s not the only reason.

Another one is you – Community Land Scotland.

From that conference in Harris, there emerged one main conclusion.

That the community land sector – the individuals, the local groups involved in it – had somehow to get organised.

The sector, it was thought, required a means of working out, and getting over, its collective – and distinctive – point of view.

A means of influencing public agencies and politicians.

A means of pressing the Scottish Parliament, the Scottish Government, to recognise that the need for land reform, for more community land ownership, had not at all been satisfied by what had been accomplished in the Parliament’s first session.

Important though that was.

Well, that means of getting over a community land sector viewpoint, it isn’t missing any longer.

You, to repeat, are it.

And I reckon you’ve been doing pretty well.

For starters, you’re encouraging, assisting, continued effort on the ground.

More and more of it – and this is heartening – in parts of Scotland where community land ownership is new.

Which is not to say that things are at a standstill in the areas where community land ownership – as we know it here in Scotland – first began.

In the Outer Isles, for instance, the most endangered species isn’t any more the corncrake. It’s the Hebridean landlord.

But like six years ago in Harris, it’s the politics of land reform I most want to touch on – what I called, back then, the public policy environment.

The institutional back-up to community land ownership.

The stuff that doesn’t of itself take more land, more resources, into local, and community, control.

But the stuff – like legislation, public agency support, the cash that’s needed for land purchase – the stuff that makes it easier for people to take charge of what’s around them.

Community Land Scotland’s made a difference – a big difference – in that area.

The arguments you’ve developed, the contacts that you’ve made, the influence you’ve managed to exert – all that’s helped greatly to re-energise the land reform process – a process that, six years ago, we felt had almost stalled.

In doing what you’ve done, if I may say so, you’ve been helped by your leadership.

And not least by your chairman.

He told me that on no account was I to say this.

So I reckon that’s my dinner out the window.

But David Cameron, I believe, has helped enormously to get community land ownership to where this cause now is …

Some milestones:

First, the Scottish Land Fund.

It’s re-establishment was something we called for in 2009.

Now it’s back.

And with more money. Not enough of course. It never, ever is enough. But that the Land Fund’s up and running once again is evidence that progress is being made.

The same’s true of the setting of a target of one million acres – nearly twice the present total – in community hands by 2020.

Still more significant was the setting up by government of the Land Reform Review Group.

With which I had a brief connection.

And which, after I left … and I hope the one thing didn’t follow from the other … and which after I left produced a report that’s both a good analysis of what wants doing and a pointer as to how it might be done.

From that there’s followed legislation.

The Community Empowerment Bill owes quite a bit to Land Reform Review Group recommendations.

The Land Reform Bill will owe a great deal more.

A word now about that Bill.

Uninformed, I stress, by any inside knowledge of what it might, or mightn’t, look like.

But informed by the consultation paper that was issued late last year.

And especially by what I think is the paper’s key suggestion.

In its Chapter Two.

Where you find what’s called a Draft Land Rights and Responsibilities Statement.

‘This [draft] statement,’ I quote, ‘ proposes a vision and a set of principles to guide the development of public policy on the nature and character of land rights in Scotland.’

I leave aside, for present purposes, the vision.

And of the consultation paper’s seven principles, I’ll touch on only one.

The first and – I believe – the most important.

It reads: ‘The ownership and use of land in Scotland should be in the public interest and contribute to the collective benefit of the people of Scotland.’

By way of underlining that, a borrowing from Donald Dewar.

When, in 1998, he introduced the Scotland Bill – the devolution Bill – he read out its first sentence:

‘There shall be a Scottish Parliament.’

Donald paused then for a moment, and said, ‘I like that.’

‘The ownership and use of land in Scotland should be in the public interest and contribute to the collective benefit of the people of Scotland.’

I like that.

Because it makes the point that ownership of land is in no way absolute.

What owners do, or don’t do, with their land, that statement says, is not, and can’t be, wholly up to them.

It’s contingent on the agreement, the consent, of the society, the community of which they’re part.

In some ways, to be sure, there’s nothing new about such thinking.

Although Scotland’s never experienced land reforms of the sort that long ago rid other European countries of the concentrated ownership that we alone still have, more limited reforms have several times been put in place.

Reforms made in the public interest.

Like giving crofters security of tenure in the 1880s.

Like giving tenant farmers similar – though less generous – security in the 1940s.

But reforms of that sort have had specific, limited and clearly stated purposes.

As did the Scottish Parliament’s Land Reform Act of 2003.

The new Land Reform Bill, if it includes a Land Rights Statement of the sort set out in last year’s consultation paper, will signal the arrival of a different approach.

One that opens the way not just to one or two particular measures but to an ongoing and evolving programme of reform.

A programme predicated on this powerful notion:

That the ownership and use of land in Scotland should be in the public interest and contribute to the collective benefit of the people of Scotland.

So how might a long-run programme of reform be developed?

Well, December’s consultation paper gives a steer on that as well.

Where it suggests that, in line with a Review Group recommendation, the Scottish government should establish a Land Reform Commission.

Which will have the job, presumably, of working out exactly what, beyond next month’s Reform Bill, will still need tackling if the public interest is to be secured.

Which is why the Land Reform Commission, if indeed we are to have one, has got to be got right.

This from Andy Wightman:

‘Key to the success of any such Commission will be its structure and remit. Clearly it needs to be autonomous and independent … [Members] also needs to be free of vested interest and [be] able to respond to a clear statutory remit without compromise.’

What might that remit be?

Well, I offer this from guidance given to the first Scottish Land Fund.

Not the present Fund. But the Fund launched in 2001 and afterwards – inexcusably – wound up.

One of that Fund’s objectives was simply this: ‘To diversify the pattern of land ownership in Scotland.’

Beyond that lay a recognition we need now to get back to.

A recognition that to have half of our privately owned land in the hands of 432 owners is, in itself, plain wrong.

 

Which is why a Land Commission needs to test, to scrutinise, each land-related measure to see if it’s …

Contributing to the collective benefit of the Scottish people … AND …

Helping to diversify the pattern of land ownership.

One more thought.

Arising from my having gone, on a Saturday in mid-April, to Glenfeshie.

Where Dick Balharry, who did so much for nature conservation, was being presented with a Geddes Medal by the Royal Scottish Geographical Society.

The day was, weather-wise, spectacular.

Some sun. Some cloud. Near perfect visibility. Snow still on the high tops that separate Glenfeshie from the upper part of Deeside.

The place a place of beauty. Seen that day at its best.

Which was good.

Because Dick, whom I’d known for a long time, was dying.

And just days later would be dead.

What Dick had meant to say that day was said for him by his son David.

There was media coverage of Dick’s message.

And if you didn’t catch it, you should maybe look it up. Because that message is important.

It has to do with how we might restore and rehabilitate environments and habitats that have been desperately degraded by misuse.

Evidence of just such restoration was all around us that day in Glenfeshie.

I hadn’t been around there for maybe 20 years.

And what I saw was truly heartening.

The rebirth of a native pinewood that, despite it’s having existed for millennia, appeared, until quite recently, to be headed for extinction.

Because of the priority given for ages in Glenfeshie – the priority given everywhere on properties like that – the priority to keeping up deer numbers.

With the outcome, in Glenfeshie, that no scots pine seedling there had reached maturity for at least a hundred years.

That the Glenfeshie pinewood’s now returning – without planting, without fencing – is down to stringent deer culls.

Conducted by a management team led by Thomas MacDonell – a local, Badenoch, man.

This team advised by Dick Balharry.

A team in place there in Glenfeshie because it’s owner is Anders Holch Polvsen – now in charge of more of Scotland than any other individual – except for the Duke of Buccleuch.

Mr Polvsen’s objectives are: ‘To purchase wild land to protect it against exploitation and to preserve as much wild nature … as possible for future generations.’

What might our prospective Land Reform Commission make of that?

Will what Mr Polvsen’s doing be judged to be, or not to be, ‘to the collective benefit’ of Scots?

I don’t know.

What I do know is that putting right the past misuse of Highland land requires more subtlety than seems to be allowed for in attempts to map what’s wild.

Not long after my trip to Glenfeshie, I was in Strathbrora.

I’ve been there quite a bit of late because, as David mentioned, I’m writing something presently on Sutherland.

My destination was a place called Ascoilemore.

Whose community, I think, I’ve got to know a little bit.

Which is a wee bit odd, I guess.

Because no-one’s lived in Ascoilemore for the best part of two centuries.

This being one of sixty-two Stathbrora townships destroyed in the course of the Sutherland Clearances.

There were eight, nine, ten, eleven dwellings there in Ascoilemore.

Now reduced to little more than squared off undulations in the turf.

I don’t know which of these vestigial ruins were once part of the house that – until Thursday 31 May 1821 – was home to a woman by the name of Jessie Ross.

I do know something of what happened there when, at two o’clock that Thursday afternoon, the house was entered forcibly by around a dozen men.

Those men, headed by a sheriff-officer called Donald Bannerman, were there to evict this young mother, her two small daughters, aged five and three, and her two-month old baby girl.

They were also there to empty the building of everything the Rosses owned.

Jessie’s baby, whose name was Roberta, had been born less than a year after another baby, a boy who hadn’t lived.

So Jessie Ross, then 27, had gone through, in twenty months, two pregnancies – one of which had ended tragically.

Unsurprisingly, she wasn’t in good health.

To Bannerman and his subordinates, this mattered not a bit.

They began by ordering out the little girls, Elizabeth and Katherine.

Their mother, unwell and hoping to safeguard the family’s belongings, refused to join them.

‘She would not leave … until the furniture was off,’ it was afterwards explained.

On Jessie Ross also refusing to help move the wooden cradle in which her baby was sleeping, one of the party, William Stevenson, picked it up – angrily it was said – and made to carry both cradle and baby outside.

Perhaps, as was later alleged, Stevenson was drunk – he and his colleagues having got through ten bottles of whisky the previous night and another three that morning.

Or perhaps he was just clumsy.

At all events, he somehow ran the cradle up against the house’s door or doorframe.

The baby, though not tumbled out, was badly shaken – and started crying in alarm.

She was still in distress when her cradle was set down in such shelter as a nearby dyke provided from a chill wind out of the north-east.

Here Roberta was found by someone by the name of Mary Murray – on her way to offer help to Jessie.

Like Jessie, Mary was a nursing mother.

Doing something we’d think unacceptable – but which, from the way it was reported, must have been common practice then – Mary Murray lifted the crying infant and quietened her, as a bystander put it, by ‘giving the young child a suck’ at her own breast.

The older Ross children weren’t so readily comforted.

Not long after the evicting party got to work, Elizabeth, the five-year old, was struck in the face by a piece of planking thrown from the house – Stevenson again responsible.

Elizabeth began to cry and, her injuries aside, neither she nor Katherine, her sister, could have been anything but traumatised by what was happening to them.

Both were said to have ‘looked cold’ and to be ‘trembling’ or shivering – their misery compounded by the fact that they already had, or were incubating, whooping cough.

Now rare, whooping cough was once a common childhood illness.

Its symptoms – a fever and the drawn-out cough from which the infection got its name – were always unpleasant, sometimes severe, occasionally fatal.

So what happened to Katherine Ross, might arguably have happened anyway.

But when, some three weeks later, the little girl died, it’s understandable that her father, Gordon Ross, unavoidably elsewhere when Ascoilemore was cleared, should have attributed her death to what he called the ‘inhuman treatment’ she’d experienced when the Rosses’ home was taken from them.

That, then, is how Strathbrora got to be the way it is.

From the hillside above Ascoilemore, the middle reaches of Strathbrora are laid out in front of you.

Devoid of habitation.

But awash with indications of there having for a long time been a lot of people here.

A mile or so away, at Kilbraur, another of the strath’s cleared townships, you can pick out the remnants of a broch.

From perhaps two thousand years back.

And in the shape of hut circles and the like, there are plenty signs of older settlements nearer hand.

Which is to say that, out of the last fifty centuries, this part of Strathbrora’s been lacking people for just two.

In relation to what went before then, Strathbrora’s present emptiness is very, very new.

And being new, might it not also, in the end, prove temporary?

Getting a new community, or new communities, established in Strathbrora, and the many places like it, will be more challenging than getting pines back in Glenfeshie.

It won’t happen this year.

Or next year.

It might not happen this century.

But my plea to Aileen MacLeod, who’ll be speaking here tomorrow, is this:

Don’t let any Wild Land Map close off that possibility.

Scottish Land and Estates, the organisation that represents some landowners in Scotland, attracted a fair bit of press coverage last month for their claim that potential reforms to Scotland’s agricultural tenancy laws could leave the Scottish Government open to compensation claims of £600 million (see Telegraph, Press & Journal, Herald). (1)

The claim was made in written evidence to the Rural Affairs, Climate Change and Environment Committee on 25 March 2015. The £600 million figure was derived from a study undertaken for SLE by estate agents Smiths Gore which purports to calculate the potential loss faced by landowners were reforms to be enacted.

The heart of the matter, however, is not the quantum of any possible claim. Compensation would only be relevant if there is a breach of the rights to property enshrined in the European Convention on Human Rights (Article 1 of Protocol 1). Moreover, such rights are not the only human rights that come into play when the Scottish Parliament enacts legislation.

As Professor Alan Miller, Chair of the Scottish Human Rights Commission, noted in evidence to the Scottish Parliament’s Rural Affairs, Climate Change and Environment Committee on 3 December 2014,

I am struck by how narrowly framed the debate has been. I am a little embarrassed that the way in which human rights has been interpreted is contributing to there being quite narrow parameters around debate about land reform and community empowerment..” (2)

Professor Miller expanded on this point at a very well-attended Scottish Parliamentary meeting was last week hosted by Michael Russell MSP on the topic of land reform and human rights. In attendance were several MSPs, a Government Minister and more than six civil servants including one from the Crown Office.

The meeting was addressed by David Cameron from Community Land Scotland and Professor Miller. In their presentations and in the discussion that followed, it was evident that convention rights of the sort being deployed by SLE are only part of a much wider spectrum of human rights that Scottish Ministers and the Scottish Parliament have to balance in framing legislation. Section 7(2)(a) of the Scotland Act 1998 obliges the Parliament to observe and implement all international obligations including a wide range of human rights that are not covered by the ECHR such as the Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights.

This perspective is diligently and authoritatively explained in a paper by Dr Kirsteen Shields from Dundee University’s School of Law published in the current edition of the Scottish Human Rights Journal entitled “Tackling the Misuse of Rights Rhetoric in Land Reform Debate”. (download available here) All with an interest in the topic and, in particular, MSPs, would be well advised to read this carefully.

None of these arguments will be new to anyone with any experience of international development where, since 1997, the rights-based approach has been adopted not only by the UN but by Governments and NGOs around the world.

Indeed the UK Government is an enthusiastic advocate of such an approach in its overseas aid programme. The Scottish Government is also bound by the terms of the Scotland Act to do all in its power to further the realisation of international human rights obligations.

The claims by SLE that landowners could be entitled to £600m of compensation is predicated on there being a breach of ECHR. Crucially, SLE has not published the legal advice upon which the £600m claim is based. During the Parliamentary meeting, I called for the organisation to do so and share this with MSPs. I await developments with interest since only by understanding the legal basis upon which any claim rests, can we judge whether any financial consequences might flow. Moreover, as the above paper makes clear, there is more to human rights than the ECHR.

All of which led Cabinet Secretary, Richard Lochhead, to dismiss such claims at the Rural Affairs meeting on 1 April 2015. In response to suggestions that compensation claims might be as high as £1.78 billion, he said,

First, the cabinet secretary is too broke to afford £600 million, let alone £1.78 billion. It would be more constructive and helpful in moving the debate forward if we had fewer silly reports such as that. SLE’s intervention and the figures in its report – which came when we are supposed to be saying that there is unprecedented collaboration and understanding of some of the key issues facing tenant farming – were unconstructive and unhelpful. It escapes me how those figures were arrived at. Given that we have not even published the legislation yet, there is no way for those with a strong view on one side of the debate even remotely to begin to work out any potential figures.”

Now that Parliament has been made aware of the wider human rights context in which it is, by law, required to work, it is to be hoped that such speculative and outlandish claims can be put to rest.

NOTES

(1) SLE is the representative body of 1351 landowners in Scotland who own 29% of Scotland.

(2) A fuller extract of his evidence..

I am struck by how narrowly framed the debate has been. I am a little embarrassed that the way in which human rights has been interpreted is contributing to there being quite narrow parameters around debate about land reform and community empowerment. I will just make a couple of points about the perception of human rights and its relevance to the committee’s consideration of the bill, because I am sure that others have more value to add.

The language that is being used – I heard the term “absolute right to buy” being used again this morning –  is very unhelpful, although I understand why people are using it. The European convention on human rights is not understood as providing a framework in which the legitimate rights of landowners and the public interest are reconciled and a balance is struck, with compensation being paid to the landowner if necessary. The right to buy is a qualified right: there has to be a competing public interest to override the right to peaceful enjoyment by the person who owns the land. Therefore, language such as “right to buy” or “absolute right” polarises the debate in an unhelpful way and does not reflect a clear understanding of what the ECHR contributes to the debate.

The bigger frustration that I have with the policy framework is this: human rights does not begin and end at the European Court of Human Rights in Strasbourg; there is a much broader framework of international human rights that are relevant to the Government and the Parliament, but which are largely invisible.

The Scotland Act 1998 calls on the Scottish ministers to observe and implement international obligations, of which one—but only one—is the International Covenant on Economic, Social and Cultural Rights, which places a duty on the Scottish ministers to use the maximum available resources to ensure progressive realisation of the right to housing, employment, food and so on—that is, it sees land as a national asset, which is to be used for the progressive realisation of what we might call sustainable development.

Therefore, what human rights provides is a broader impetus for land reform, rather than an inhibition, as is suggested in the way that the issue is currently couched—that is, in questions about whether a landowner has a red card that can be used with reference to the ECHR to stifle discussion about different use of the land. That is what is missing from the policy framework.”