The above is the audio-video commissioned from myself by Emma Rushton and Derek Tyman as part of their Flaghall installation in the Where Do I End and You Begin exhibition in the City Arts Centre, Edinburgh 1 August-19 October 2014 as part of the Edinburgh Arts Festival. (Click on ‘Vimeo’ and watch full screen for best effect).The exhibition features work by artists from across the Commonwealth exploring and interrogating the ideas, ideals and myths that underpin notions of community, common-wealth and the commons. This audio-video lecture explores these themes in the context of Scotland and the British Empire and invites the viewer to consider how we can reverse centuries of colonialism and ideas of exclusive possession and move toward a world in which our common-wealth is reconstituted and governed for the wellbeing of all.
The Commonweal is an old Scots term meaning “wealth shared in common for the wellbeing of all”
In 1884 the Earl of Rosebery visits Australia and asks, “Does the fact of your being a nation… imply separation from the Empire? God forbid! There is no need for any new nation, however great, leaving the Empire, because the Empire is a Commonwealth of Nations“.
On the 22nd of August 1770, at Possession Island off the north coast of Australia, Captain Cook writes in his journal, “I now once more hoisted English colours and in the Name of His Majesty King George the Third, took possession of the whole Eastern Coast .. together with all the bays, harbours, rivers and islands.”
In 1949, the people of Alyth in Perthshire, Scotland march to the top of the Hill of Alyth to destroy the fences that have been built to enclose their common land.
In 1955, the UK government decides to annex Rockall – a small rock in the North Atlantic around 187 miles west of St Kilda. Captain Connell of HMS Vidal is given the following order by the Queen. “On arrival at Rockall you will effect a landing and hoist the Union flag on whatever spot appears most suitable or practicable and you will then take possession of the island on our behalf.”
In May 1982, Eddie Mabo, on behalf of the Meriam people from the Mer Island in the Torres Strait off the north coast of Australia launches a legal action challenging the claim of the Crown to ownership of his land.
On the 3 June 1992, by a majority of six to one, the High Court upholds the claim of the Meriam people and overturns the legal fiction that the land of Australia was ‘terra nullius’ before colonisation.
On Tuesday this week, the Court of Session published its opinion by Lord Tyre on a petition brought by East Renfrewshire Council (4.2Mb pdf) seeking authority to build a school on common good land in Cowan Park, Barrhead. Given past blogs on the topic of common good and, in particular, the controversy over the Portobello Park proposals, I felt it would be useful to provide a brief response and commentary on this latest decision by the Courts.
East Renfrewshire Council plans to build a new high school in Cowan Park, Barrhead. The park consists of three distinct parcels of land (see map below). The first – areas 13/4 and the northernmost E157/3 form the original Cowan Park. James Cowan bequeathed £10,000 in 1910 to provide a park and directed his trustees to purchase the land and convey it to the Town Council to be held in “perpetuity as a public park … for the use and enjoyment of the inhabitants of the Burgh of Barrhead in all time coming.” In 1969 part of this original park (the northernmost area E157/3) was conveyed to the County Council and is the site of the current Barrhead High School.
An additional two parcels of land were added to the park in acquisitions by the County Council in 1969 (E157/3 to the south outlined in blue) and the Town Council in 1969 (area 13/8 outlined in yellow).
Of these parcels, only area 13/4 is common good land. Furthermore, given the terms of the bequest, it is inalienable common good land. This means that, unlike alienable common good land (which the council can dispose of as its sees fit), any disposal of such land requires the consent of the courts. (1) It was with this intention that East Renfrewshire Council petitioned the Court of Session in April 2014.
At this point it is worth revisiting the Portobello decision very briefly. In that case, the City of Edinburgh Councils wished to appropriate (that is, to use common good land for another purpose but to retain ownership) land in Portobello Park to build a new school. An action was taken against the Council by Portobello Park Action Group and the Court of Session found (on appeal to the Inner House) that the Council had no powers to appropriate inalienable common good land. This was because the Local Government (Scotland) Act 1973 which governs such matters is silent on the question of appropriation in these circumstances and thus the common law prohibition on appropriation of inalienable common good land prevails. The City of Edinburgh Council resolved the matter by seeking specific authority under a private act of Parliament to appropriate the necessary land.
The Cowan Park case turned on the question of whether the proposals for building a school constituted a disposal or an alienation. If such an arrangement is regarded as a disposal, the Court has the power to decide whether to grant authority to proceed. However, if the arrangement is considered an appropriation, the Court has no locus since there is no provision in the 1973 Act for it to take a view.
The plan is to lease the land to a special purpose vehicle which, in turn will sub-lease the site back to the Council and construct the school. The Court in this case found that, since the Council would retain possession of the land as the sub-leaseholder, there was no disposal involved and that “the petitioner’s proposals are properly to be characterised as appropriation.” (2) Thus, “as there would be no disposal, the petition must be refused as unnecessary“.
So where does that leave East Renfrewshire Council?
Well, the Court cannot provide the consent that was requested and thus there are three options available.
The first would be to seek the same remedy as the City of Edinburgh Council in the Portobello case and petition the Scottish Parliament for a private Act of Parliament.
The second would be to build the school on the southern half of the park which is not common good land (though I understand other factors mean that this is not a suitable site).
The third would be to do what South Lanarkshire Council did and go ahead and build the school anyway. As outlined in a previous blog, the Council in this case, having petitioned the court and having been advised that the court had no locus (just as in the present case), nevertheless went ahead and built Holy Cross High School. No-one raised an action against the council. Had anyone done so, then, the court would most likely have found that the Council was acting beyond its powers. This is exactly what happened in the Portobello case because, whilst the courts have no locus to approve such an action at the outset, they do have the power to rule it unlawful should it be contemplated AND someone takes an action against the Council.
In conclusion, this latest case demonstrates why, in my view common good law is in need of modernisation. The Community Empowerment Bill proposes some modest reform on transparency but fails to address the underlying complexity and the need for the law to be updated to reflect modern needs.
(1) – In my opinion Lord Tyre is wrong at  where he claims that “As a general rule, a local authority has no power to dispose of common good land or to appropriate it for other uses“. On the country, if the land is alienable it is free to dispose of it or appropriate it. See Ferguson, Common Good Law (Avizandum) at foot of page 88.
Guest Blog by Morten Nielsen, Aarhus University, Denmark (1)
Associate professor Morten Nielsen is a Danish anthropologist currently in the Department of Culture and Society at Aarhus University. Based on empirical research carried out in Latin America, sub-Saharan Africa and the UK, his research focuses on land use, house-building and property rights in both urban and rural areas. He is currently undertaking an in-depth study of land relations and property rights among tenant farmers on Islay.
“This is the Scottish Government. Is this Dr. Morten Nielsen?”
I had just come off the Islay ferry and was heading for Inveraray when my phone rang and an energetic woman, who was apparently the living embodiment of the Scottish Government, wanted to know if she was, in fact, speaking with me. I immediately assumed that I had done something wrong. Having spent more than two months doing ethnographic fieldwork among tenant farmers on Islay, my initial thought was that I had probably forgotten to fill out some research permit and now my increasing absent-mindedness had finally backfired.
Much to my surprise, however, the polite state official was not at all trying to expose my academic flaws but, rather, wanted to discuss my on-going research about agricultural tenancies and property rights on Islay. In order to realise comprehensive land reforms in Scotland, she told me, information was badly needed and my research could potentially provide insights into the intricacies of negotiating land rights in the Highlands and Islands. Having an overall interest in the dissemination of qualitative research, I immediately agreed to meet with the polite embodiment of the Scottish Government. As we could not find an available date for us to meet up on Islay, the state official agreed to visit me in Crail, Fife a few weeks later, on a Saturday, when I was visiting some friends on my way back to Denmark.
To Scottish readers, this vignette might not constitute anything out of the ordinary: a foreign researcher being approached by a state official interested in discussing key findings on issues that are high on the political agenda. However, having carried out research on land and property rights in Latin America and sub-Saharan Africa since 2000, I can firmly say that this is the first time ever that I have been contacted personally by a state official interested in the findings from a very short empirical investigation and, moreover, one who was prepared to meet up on a day off.
In both regions where I have previously worked, access to officials at different levels has been paramount to my research but the initiative for making contact has always been mine. The obvious question to ask was therefore why did she feel the urge to contact me apparently out of the blue? In order to respond to this question, we need to discard the tempting but unfortunately unlikely possibility that she was in awe of my research findings. At the time of our telephone conversation I had carried out fieldwork for less than two months and had as yet published nothing in academic journals or in more accessible public media. The likely response to the puzzling question is therefore quite banal. It wasn’t that I was the best of all the scientists doing research ‘on the ground’; rather, I was the only researcher doing research ‘on the ground’!
In Latin America and sub-Saharan Africa, research into property rights and access to agricultural land is heavily supported and funded by external stakeholders, such as, for example, the UK Government. Hence, whenever I do ethnographic research in sub-Saharan Africa, I am certain to meet several of my colleagues doing research on exactly the same issues as myself. In Scotland, however, the situation is markedly different. Since I started doing research, I have come across very few colleagues doing what I do (which is to try to understand what people do ‘on the ground’ when, for example, farmers attempt to acquire secure access to tenanted land). To be more precise, I have met none!
Hence, although my conversation with the Scottish state official paved the way for disseminating findings from my research project to relevant stakeholders, it also made apparent a disturbing problem that slows down the realisation of wide-ranging land reforms. The on-going discussion about land and property rights in Scotland is based on very little knowledge about what actually goes on ‘on the ground’ regarding such crucial questions as, for example, how do negotiations between land owner and land tenant take place?; how are rent reviews actually settled?; how do conflicts among farmers and between tenants and land owners erupt and how are they settled?; why do so few tenants use the land court to settle land disputes? The list goes on…
Let me try to flesh out this puzzling predicament a bit further by turning to some of the very interesting issues raised by the Scottish Affairs Committee (SAC) in its recently published Interim Report. (2) Initially, it is noted with lucid honesty that,
“The first step in any meaningful strategy of land reform must be the creation of data on ownership and land values which is comprehensive and accessible. Regrettably Scotland lags behind most comparable European countries in providing such data”
When discussing ownership of vacant land in Scotland, the disturbing lack of information is further emphasized. According to Professor Adams, University of Glasgow,
“…local authorities have no idea who owns 12% of the vacant and derelict land in Scotland”
One consequence being that,
“…too often communities are left guessing who owns the land that they live, work and socialise in”.
Taking SAC’s insights as an apt example of an overall problem then, given the lack of information, stakeholders involved in the ongoing process of trying to improve the existing legislation on land and property rights are often in the dark about what happens ‘on the ground’.
What are then the consequences of this worrying lack of information? Why is it that information about what goes on ‘on the ground’ is so crucial for the successful realization of ambitious land reforms? As an anthropologist having working on these issues for the last 14 years, I do believe that it is only through careful examination of how land is actually appropriated, negotiated and distributed that new and potentially revolutionary mechanisms of land distribution can be envisaged and put into action. Let me briefly sketch out only a few areas of concern that I have identified through my three months of fieldwork among farmers in Islay:
The need for pragmatic and immediate forms of arbitration. Currently, the only workable mechanism for arbitration is the land court. To many farmers, it is too costly and it is considered as unlikely to reach a viable and positive outcome. Hence, a kind of ‘middle ground’ is needed.
The need for third parties when negotiating rent reviews. The recurrent rent reviews constitute critical and often decisive moments that significantly affect or even condition the relationship between landowners (through factors) and tenants. To many farmers, the need for maintaining a workable relationship with the factor will often prevent them from claiming legitimate rights.
The need for transparency when calculating the value of tenanted land. My research indicates that there are no objective standards by which landowners determine the value of tenanted land (e.g. an acre of arable land might vary between different comparable farms).
This is only a very cursory and superficial outline of a few of the many issues that I have discussed with farmers on Islay. Still, as is probably clear by now, I will claim that it is only through detailed examinations of happens ‘on the ground’ that such crucial insights might be identified and subsequently serve as a basis for establishing new mechanisms for a more just system of land distribution.
Let me conclude with an example of what such valuable insights might be used for. During the 1990s, the Mozambican government in collaboration with donors and local and international interest groups managed to involve huge sections of the Mozambican population in widespread debates on the need for a new and democratic land law. Through massive investments, large-scale research projects and ongoing public debates, a new Land Law was finally formulated that was (and still is) the most progressive piece of legislation on land and property rights in sub-Saharan Africa. (3) Today, it is widely acknowledged by all stakeholders involved in the process that the radical and positive achievements could never have been reached if it had not been for the continuous production of information about how Mozambican land was actually appropriated, negotiated and distributed.
In this light, the debate on land and property rights in Scotland is that of a developing third world country that can one day hope to reach the progressive level of developed countries, such as Mozambique.
Ruth works for Community Land Scotland although she writes here in a personal capacity. During the summer of 2009, she spent six weeks volunteering at the Tent of Nations farm in the West Bank, Palestine.
“We refuse to be enemies” is the sentiment upon which the Tent of Nations project in Palestine is built. Painted on a stone which greets every visitor to the Nassar family farm, where the project is based, the phrase encaptures the deep sense of humanity, resolution and faith which emanates from the 100 acres of land and the family who own it.
At 8am on Monday 19th May 2014, Israeli Defense Force (IDF) bulldozers arrived unannounced – presumably rolling past the Nassar’s defiant welcoming statement – and proceeded to destroy between 1,500 and 2,000 mature, fruit-bearing apricot trees, apple trees and grape vines in the lower valley of the farm.
Resting on a hill six miles southwest of Bethlehem in the Occupied Territories of Palestine (the West Bank), the Nassar family hold registration papers for this land dating back to the Ottoman Empire. For over 20 years now, the family have been fighting a legal battle to prove their ownership of the land. For over 20 years they have been challenged by knock-backs, obstacles and violent provocations. The attack at the beginning of last week comes while their latest case for proving ownership has been in the Israeli Military/Civil Courts since February 2013.
Image: The valley before and after the bulldozers arrived.
In 2001 the Nassars set up the Tent of Nations peace project on their farm; a project committed to building intercultural cooperation and understanding; to promoting dialogue and non-violence and to highlighting the connection between people and land. As a volunteer in 2009 (planting and harvesting many of the trees now destroyed), I was struck by the family’s steadfast resolve to remain on their farm despite the pressure to have it evacuated and claimed as Israeli State Land. I noted in a blog during my time there the “shuwe, shuwe” (“slowly, slowly”) attitude to the Nassar’s work; commenting that it “sums up their calm, thoughtful and sustained approach to dealing with an intense and emotional situation.” Such an approach couldn’t be more necessary now as they cope with this latest act of oppression; as ever – they are rising to the occasion with dignity and hope.
In addition to the destruction of the trees, the terraced land on which the trees were planted was also destroyed and left in a state of rubble which cannot currently be re-planted. Having generated income from the fruit of the mature trees, the family are faced with an attack on their livelihood as well as their property. As advised by their lawyer, the Nassars are now appealing for compensation; critically, they are also appealing to have the demolition orders which remain on the tents, compost toilets & other structures on the farm removed. They have asked for international awareness to be raised and for the international community to support their case and to understand that the injustices they face are representative of the oppression faced by the wider Palestinian population.
If you’d like to take action to support the Nassar family and hold the Israeli Military and Government to account for its actions, please write to your MP using this standard letter – doc and rtf.
The Guidelines have been endorsed by Governments around the world and were most recently supported by the 2013 G8 Summit in Lough Erne and featured in Sections 43-45 of the G8 Communique. The UK Government is actively following the Guidelines in relation to its overseas development programmes as highlighted in its 2013 G8 Presidency Report (pg14). The map below shows the countries where the UK is engaged in land governance projects. See the Land Governance Programme Map for further information.
As stated in the Preface,
The purpose of these Voluntary Guidelines is to serve as a reference and to provide guidance to improve the governance of tenure of land, fisheries and forests with the overarching goal of achieving food security for all and to support the progressive realization of the right to adequate food in the context of national food security.
These Guidelines are intended to contribute to the global and national efforts towards the eradication of hunger and poverty, based on the principles of sustainable development and with the recognition of the centrality of land to development by promoting secure tenure rights and equitable access to land, fisheries and forests.
One of the most interesting thing about the Guidelines is that they are global in scope. For too long, many so-called developed countries have developed policies and guidelines which they enthusiastically promote in other countries but when asked whether such practices are adopted at home, they look sheepish. Twenty years ago I remember engaging the UK representative at a UN meeting about the millions of pounds being given to promote the transfer of control of state forests to local communities in the Highlands of Nepal when, at the same time, the Scottish Office was in open opposition to any such efforts in Scotland. So, it is welcome to read that,
Taking into consideration the national context, they may be used by all countries and regions at all stages of economic development and for the governance of all forms of tenure, including public, private, communal, collective, indigenous and customary. (2.4)
11.2 ……..States should take measures to prevent undesirable impacts on local communities, indigenous peoples and vulnerable groups that may arise from, inter alia, land speculation, land concentration and abuse of customary forms of tenure. States and other parties should recognize that values, such as social, cultural and environmental values, are not always well served by unregulated markets. States should protect the wider interests of societies through appropriate policies and laws on tenure.
14.1 Where appropriate, considering their national context, States should consider providing restitution for the loss of legitimate tenure rights to land, fisheries and forests. States should ensure that all actions are consistent with their existing obligations under national and international law, and with due regard to voluntary commitments under applicable regional and international instruments. 14.2 Where possible, the original parcels or holdings should be returned to those who suffered the loss, or their heirs, by resolution of the competent national authorities. Where the original parcel or holding cannot be returned, States should provide prompt and just compensation in the form of money and/or alternative parcels or holdings, ensuring equitable treatment of all affected people.
15. Redistributive reforms
15.1 Redistributive reforms can facilitate broad and equitable access to land and inclusive rural development. In this regard, where appropriate under national contexts, States may consider allocation of public land, voluntary and market based mechanisms as well as expropriation of private land, fisheries or forests for a public purpose.
15.2 States may consider land ceilings as a policy option in the context of implementing redistributive reforms.
15.3 In the national context and in accordance with national law and legislation, redistributive reforms may be considered for social, economic and environmental reasons, among others, where a high degree of ownership concentration is combined with a significant level of rural poverty attributable to lack of access to land, fisheries and forests respecting, in line with the provisions of Section 15, the rights of all legitimate tenure holders. Redistributive reforms should guarantee equal access of men and women to land, fisheries and forests.
I look forward to seeing what the Land Reform Review Group (due to publish its findings next week) makes of this important international agreement and whether the Scottish Government intends to join the long list of administrations committed to putting the Guidelines into practice.
Image: Allan MacRae, John Mackenzie, Michael Forsyth and Bill Ritchie 1993
When I first became interested in land rights in Scotland, I remember reading an article in Crann-tara in 1978 by Danus Skene in which he observed
“It once befell me, while working in East Africa, to read widely concerning land tenure in Africa and its relation to problems of social and economic development. These days I often find myself stressing two items of African experience that seem to bear more than passing relevance to Scotland. First, no country with so inequitable a land distribution as Scotland would ever receive a jot or tittle of overseas aid in the rural sector. Second, any country with such a land distribution and with much of the landownership in alien hands would, anywhere but Scotland, be facing a revolutionary phase. Why should what is unacceptable in Rhodesia or imperial Ethiopia be of no consequence in Ross-shire?”
I recalled this as Community Land Scotland convened a seminar last week at Bunchrew, outside Inverness exploring the international context for land reform in Scotland and, in particular, the rights-based approach to development.
Prior to 1997, the UN, governments and NGOs based most of their development programmes on a ‘basic needs’ approach. Since then, however, and following the UN Secretary-General’s 1997 Programme for Reform, human rights is now a cross-cutting theme of all UN activity and the rights-based approach is now being adopted by donors and NGO’s as the framework within which to plan development assistance.
Following an international conference on community land rights in 2013, delegates from international agencies, human rights groups explored these issues with activists from across Scotland in two days of very productive discussions that will inform the debate in the years ahead. Out of this emerged the Bunchrew Declaration which is reproduced in full below.
David Cameron, the Chair of Community Land Scotland said,
“We have had a very valuable meeting with other Scottish, UK, EU and international land reform interests over two days last week. By referencing ourselves to what has and is happening internationally in land reform you are forcefully reminded that land reform has been and remains a cause that is legitimately pursued to empower communities and win a more people centred approach to land governance. Far from land reform being just the interest of a small group of radicals, as it is often portrayed, in fact land reform is a mainstream international cause in which the UN and national governments around the world are actively engaged.
“When you meet with others out-with Scotland, you are also reminded just how far behind the rest of Europe Scotland is in land reform, most countries having brought about greater land justice in centuries past.
“We have left the meeting with renewed commitment to bring about land justice through land reform and the legitimacy of the cause, and we are pledged to learn from and work with others to bring this about.”
“Like any country facing high concentrations of land ownership, challenging this structure also means challenging the concentration of economic and political power with which land ownership is so intertwined. Community Land Scotland is now setting its sights internationally; on learning from land reform movements in other countries and on linking in with global processes that can support their cause.
“Community Land Scotland’s efforts are simultaneously a national and a local struggle; nationally in gaining political and public support for land reform, and locally in demonstrating the tangible benefits to communities of moving from being tenants to being landowners. Their achievements, and of the many that work with them, are impressive.”
Some of the thinking developed at the meeting was stimulated by a very interesting paper written by Professor James Hunter – Rights-based land reform in Scotland: Making the case in the light of international experience. Copy here (762 kb pdf)
Rhoda Grant MSP has tabled motion S4M-09502 in the Scottish Parliament as follows.
That the Parliament congratulates Community Land Scotland on the publication of the Bunchrew Land Declaration; supports the renewed commitment that it makes to what it considers the just cause of further land reform in Scotland, including in the Highlands and Islands; notes its reference to Scotland having yet to take the decisive action of other European countries to bring about more equitable patterns of land ownership; further notes its call to established land ownership interests to recognise the manifest unfairness of current land ownership patterns in Scotland, and welcomes its reference to more people-centred land governance and the achievement of land justice in Scotland.
Bunchrew Land Declaration
This declaration was adopted following a meeting at Bunchrew House, by Inverness, Scotland on 19 and 20 March 2014 involving land policy and reform interests from Scotland, the rest of the UK and internationally and which explored land reform in Scotland within an international context and with particular reference to the achievement of greater social justice and the realisation of human rights.
Community Land Scotland:
having shared the experience of land ownership in Scotland, the effects of that ownership being in the hands of so few people, and its impact in contributing to the decline of communities historically and today, and in denying opportunity for more people and communities to take responsibility for and share in the bounty of the land;
having explored the parallels with land reform internationally and the solidarity felt with peoples facing dispossession of and clearance from their lands today;
knowing Scotland lags behind land reform interventions which in Europe delivered greater land justice in past centuries;
understanding the impacts on bio-diversity and on the degradation of land caused by land uses favoured by many current owners in Scotland;
desiring to achieve more people-centred local land governance arrangements;
recognising the relevance and legitimacy of international legal frameworks, obligations and guidance to Scotland for change in land governance arrangements to help tackle land injustice and secure more sustainable futures for its people;
aware of the Food and Agriculture Organisation of the United Nations Voluntary Guidelines on the Responsible Governance of Tenure 2012;
conscious of the possibilities flowing from the Scottish National Action Plan for Human Rights to contributing to deliver change;
mindful of the consideration and scrutiny of the Scottish land reform question within the Land Reform Review Group within Scotland, and the Scottish Affairs Committee of the UK Parliament, and the development of the Community Empowerment Bill;
whereas calling for established land ownership interests to recognise the manifest unfairness of current land ownership patterns;
Community Land Scotland:
re-affirms with renewed strength its commitment to pursue the just cause of establishing new land ownership patterns in Scotland;
cites international and inter-governmental agreements in helping give legitimacy to nation states intervening in land ownership arrangements to create greater fairness and land justice;
anticipates thus empowering more people and communities to negotiate with current land-owners to take ownership and responsibility for land and associated assets, such as housing, bringing a people centred approach to land governance in support of the common good;
associates itself with terms of the Antigua Declaration adopted by the International Land Coalition in 2013;
pledges to work in collaboration with others active in Scotland, the rest of the UK, and internationally, in pursuing policies to secure greater land ownership justice;
undertakes to learn from others what it is appropriate to learn and apply in Scotland;
offers to contribute to wider land reform movements and nations the Scottish experience in seeking to establish new land ownership patterns to serve the public interest, in combatting decline, expanding opportunity, developing stronger, more resilient, empowered and sustainable local communities and economies, and to achieve greater social justice.
The good citizens of the Royal Burgh of Auchterarder face being banned from walking across their common land because of the risk that they might choose to stop and gaze across at the Ryder Cup golf competiton taking place on the neighbouring golf course at Gleneagles. Safety and security are being cited as reasons why part of the Auchterader Golf Course (which is part of the common good land of the Burgh) and a public footpath are to be closed for the duration of the competition.
This is a bizarre state of affairs. Let me explain why.
The right of responsible access to land is enshrined in Part 1 of the Land Reform (Scotland) Act 2003. It was always recognised, however, that there were circumstances in which areas of land could and should be exempted from these rights. If land was to be used for an agricultural show, a sporting event or a pop concert where attendees were to be admitted on payment of a fee, then it is perfectly proper that the public’s right of access should be suspended for a defined period of time. Section 11 of the Act provides that local authorities can make orders exempting land and where it is to cover a period of more than six days then Scottish Ministers must approve and the public has a right to submit objections.
The Act also placed a duty on local authorities to define Core Paths – routes along which the public could feel comfortable walking and enjoying their access rights. But Section 11 did not provide any means for exempting Core Paths and so, in 2013, the Scottish Government proposed the Land Reform (Scotland) Act 2003 (Modification) Order 2013 which would amend Section 11 and allow Core Paths to be closed because of animal disease outbreaks or because of an event taking place. Draft Guidance states that such exemptions would be limited to events where paid admission was charged and in the interests of safety and security involving “competition participants and spectators.”
The Draft Guidance noted that “We know that there will be requests for section 11 exemptions for two major events in 2014 – the Commonwealth Games and the Ryder Cup.”
So far, so good.
It is perfectly reasonable for the organisers of the Commonwealth Games to seek to exempt the shooting range at Barry Buddon from the legal right to walk across it and along any core paths for the duration of the Games. It is also reasonable in the context of the Ryder Cup venue at Gleneagles.
But it is one thing to seek to exempt land over which you have control and are managing for the purposes of an event open to the paying public. It is quite another indeed to seek to suspend the public’s right of access over other land – particularly over common land that belongs to the people of Auchterarder.
And that is what is being proposed in Auchterarder.
It notes that the north east boundary of the Gleneagles land “abuts Auchterarder Golf Course and people standing on the Auchterarder course side of the boundary might be able to view the Ryder Cup action.”(1) The image below shows the boundary.
Oh dear! Folk might get to see some golfers without paying….
The report goes on to say that discussions are underway between Ryder Cup Europe, Police Scotland, Perth & kinross Council and Auchterarder Golf club “about how public order and safety can be maintained at this area during the event, as there is a risk that uncontrolled numbers of people may try to view the event from this location.”
“If no restrictions are put in place there is a potential for a build up of people, seeking to use the Core Path/Right of Way in order to view the event, which creates a safety, security and public order risk.”
In order to obtain a Section 11 Order, an application has to be made to Perth & Kinross Council by the organisers. The Ryder Cup is a partnership between the Scottish Government, Ryder Cup Europe and Diageo. Such an application will be for a period of greater that six days and thus needs to be referred to Scottish Ministers. The public have the right make representations and objections and Ministers may hold a public local inquiry if they wish.
“I can assure the committee that if any proposal comes before me, I will take a balanced view on the need to ensure public access to land under the Land Reform (Scotland) Act 2003 and the strong sentiment across Scotland about ensuring the right to responsible access, while at the same time protecting the public interest and public safety and ensuring the security of the events themselves. It is a balancing act, but we will take all those matters into account.”
Scottish Ministers will thus be the decision-maker in an application for a Section 11 Order to which they (as one of the three organisers) are a party – which is in itself interesting.
It appears to me that this whole process is a gross over reaction to what is a real but managable possibility of public order problems. I am no expert in the law on such matters but I would be surprised if there were not already powers available to the police to deal with such an eventuality. In any event, exempting this land from access rights does not in itself prohibit anyone walking over it and thus potential public order issues may still arise. (2)
So here is what I think should happen.
If an application is made, the citizens of Auchterarder should register their objections to Scottish Ministers and the application should be refused.
Auchterarder Community Council should then, in association with the police and the Council, set up a viewing zone open to the public with associated refreshments and public entertainment. Mini-golf can be laid on for children (and adults). Spot the celebrity golfer competitions can be organised. Information can be provided about the history of the commons of Auchterarder. Such an event would be free but ticketed so as to avert any security and public order problems.
Commons are for the people and not for corporate elites.
(1) Auchterarder Common is leased to the Auchterarder Golf Club until May 2075.
(2) It is not commonly understood that Part I of the Land Reform (Scotland) Act 2003 confers rights which are there to be exercised and relied upon as people choose. Over areas of land where the rights do not apply (by being exempted from the scope of Act or by temporary suspension via Section 11), the Act does not prohibit or ban the public. In such circumstances they are, in effect, subject to the common law as it applied before the Act came into force.
Exactly two years ago today, the Scottish Affairs Committee of the House of Commons published its report on the future of the Crown Estate in Scotland. Its conclusions were unequivocal. The responsibilities of the Crown Estate Commissioners in Scotland (CEC) should be ended and, subject to agreement on a scheme of devolution to the local level, the administration and management of the Crown Estate should be devolved. This recommendation was based upon the first comprehensive inquiry into the matter since the CEC was formed in 1956. Earlier this month, the Committee re-iterated its original findings in this follow-up report.
Yesterday, the Scottish Labour Party published its Devolution Commission proposals (2.1Mb pdf) on further devolution of powers from Westminster to Scotland. Here is what is said about the Crown Estate (on pages 239-240).
602. Another area where it has been suggested scope for devolution to local authorities exists is in regard to the Crown Estate. In March 2012, the House of Commons Scottish Affairs Select Committee published a report on the Crown Estate Commissioners’ (CECs) management of the Crown property, rights and interests which make up the Crown Estate in Scotland. The Committee concluded: “at best, the organisation [CEC] has a fundamental misunderstanding of the needs and interests of local communities and indigenous industries on the Scottish coast … At worst, it behaves as an absentee landlord or tax collector which does not re-invest to any significant extent in the sectors and communities from which it derives income”. Accordingly, it was recommended that the administration and revenues of the ancient Crown property, rights and interests in Scotland, which are currently managed as part of the Crown Estate (including the seabed and the foreshore) should be devolved then decentralised as far as possible to local authorities and local communities, with devolution to the Scottish Parliament conditional upon an agreement between the Secretary of State for Scotland and the Scottish Government on how such a schemes should be implemented, on the basis of the principle of subsidiarity. This agenda has also been adopted by the Our Islands Our Future campaign.
603. There is clearly potential for devolution of the Crown Estate Commission’s powers. We agree with the analysis of the Scottish Affairs Select Committee report on the Crown Estate, and hope the government will act on the recommendations in their report of March 2014
604. We see merit in the argument for full devolution of the Crown Estate’s responsibility for the seabed and foreshore to local authorities. On the other hand, we are conscious that this could potentially undermine cross subsidy of investment and technical expertise on renewables. We need to balance these two competing viewpoints. We agree with the Crown Estate that the default assumption is that the seabed and foreshore should be managed by local authorities or local communities and that they have developed leasing arrangements which make this possible. If this can be made to work, allowing the Crown Estate to take an interest in particular developments, we will support this. Thus, we propose to use the Crown Estate’s expertise and capital as necessary, but allowing local councils and local communities to manage the seabed in other respects, in order to achieve real devolution to very local areas while preserving the benefits of the wider Crown Estate resource.
605. We therefore endorse the idea of the Crown Estate developing more effective partnerships at community, local authority, and Scotland levels. This means two things in practice. Firstly, local management agreements between local authorities and the Crown Estate, which are an example of best practice, should be applied as widely as possible, with the Crown Estate establishing appropriate mechanisms to facilitate maximum local authority and community engagement. Secondly, a Memorandum of Understanding between the Scottish Government and Crown Estate should be agreed in respect of their common objectives on the development and management of the seabed and foreshore, and those local authorities with an interest in this area should be fully consulted throughout as to its contents.
In another document published by Scottish Labour – Together We Can (2.8Mb pdf), the party states that,
“…we are convinced of the strong case that has been made to devolve the administration and revenue of the Crown property and rights and interests in Scotland, which are currently managed as part of the Crown Estate. This would ensure that the Crown Estates expertise and capital would assist local communities to manage and develop the seabed and foreshore.”
So – the Scottish Labour Party agrees with the Scottish Affairs Committee’s recommendations (full devolution) and hopes that the Conservative/Liberal Democrat Coalition Government will implement them (despite it having made clear that it won’t).
But – if Labour form the next UK Government, it will not implement the recommendations and, instead, adopt the partial (and as far as I can see) a rather muddled approach outlined above.
On 22 January, the Scottish Government published an interesting map showing the density of tenanted agricultural land per parish (1162kb pdf here). What struck me about the map was the apparent coincidence of those parishes with >75% of the land tenanted with the locations of Scotland’s largest landed estates. So I produced another map, overlaying the ownership boundaries with the parishes and the coincidence is real. What this maps shows is that the pattern of farm tenancies is a product of the pattern of private landownership and has nothing to do with agricultural conditions. Recent reports in the press have claimed that the right to buy being pursued by tenant farmers is a “minority quest”. There is more than one minority, however.
The task at hand appears overwhelming. To restore the common ownership of the land & natural resources has been a goal of reformers down the ages but it has often met with limited success. Faced with legal frameworks devised and defended by elite interests, the citizen has had little hope of seeing meaningful restitution or recompense … which makes this week’s blog so sweet.
Tonight the representatives of Carluke Development Trust have been told that, after several years of investigation and tactical planning interspersed with long periods of waiting, a small parcel of ancient common land has been returned to the residents of their parish. It is a victory on an incredibly modest scale but it presents important lessons.
It was over a decade ago that I first noted from research that had been conducted by geographer, Ian Adams, what appeared to be an extant commonty (parish common) on the King’s Law north of Carluke in Lanarkshire. (1)
Image: Extract from Statistical Account of 1834-45 for Parish of Carluke
In 2005 I discovered a title to a neighbouring parcel of land (the dark blue in map below) which “a right of common grazing on the hill of commonty tinted yellow”. This was evidence that part of the “undivided common” referred to in the Statistical Account may still be common land although much reduced in extent (the yellow area is 33 acres compared to the 86 acres in the Statistical Account).
Image: Black Law Commonty (yellow)
What was even more interesting was that this parcel of land is in the middle of what was at the time the UK’s largest onshore wind-farm, Black Law, owned and operated by Scottish Power (see map below). They knew all about the land and, having concluded it was a common, decided not to install any wind turbines on it because they didn’t know who could competently sign the lease. Thus a combination of local ignorance of the existence of the commonty and unclear legal status meant that the good folk of Carluke missed out on a potentially lucrative source of revenue.
Image: Black Law Wind Farm showing how installations avoid the common.
In 2011, in collaboration with Carluke Development Trust, we began detailed research on the history of the land with a view to securing ownership for the community.(2) It was clear from the history of the site that it was a common. As far back as 1847, Thornmuir, the farm to the south, was being sold “bounded by that part of the common muir on the top of the King’s Law herein after described … and declaring that the said George Spence should have no right to that part of the common muir which is still undivided.”
For Scotland’s legal profession, however, my research was by itself inadequate since I am not a professional legal searcher. So a further sum of money had to be found to pay a “qualified” searcher who, knowing nothing of the law relating to commons, adopted the default legal view that there is no such thing as common land and that someone must own it. Two possible candidates were suggested from the 18th century (the same two that I had identified) and some effort went into working out who might be their successors. A deed was drawn up and submitted to the Keeper for her consideration. Then followed a long silence as her staff undertook the detailed research to validate the case we had argued. Eventually, last year, she agreed that no-one had a legitimate claim to own it but that the Queen’s and Lord Treasurer’s Remembrancer (a department of the Crown Office) would have to be informed. Since the Crown has a legal claim to any land that is “bona vacantia” (ownerless property), the Keeper wanted reassurance that the Crown did not wish to exercise its possible rights. (3)
Image: Black Law Commonty
At this point things became quite sensitive and complex. To convince the Keeper to register the title, we had to show that nobody had a legitimate claim of ownership. The Crown, however, wanted us to eliminate the possibility that any of the potential ancestors of the owners identified in the 17th and 18th century could legitimately make a claim before they (the Crown) would be able to consider whether they in turn wished to do so. Suddenly we were now being asked do the precise opposite of what we had spent two years convincing the Keeper of (that no-one owned it) to now showing that someone did own it (but they did not wish to claim it) which, in turn opened the possibility of the Crown claiming it and selling it! This bizarre scenario was eventually resolved in a manner which it is not prudent to publicise.
And so, last week, a title was granted by the Keeper to Carluke Development Trust. Which is, we think, a cause for some celebration.
It does, however, raise some urgent questions.
There are many more remnant commons across Scotland. One recent example I have been investigating concerns a 400 acre common in Perthshire that four landowners recently appropriated and split up among themselves without anyone in the parish knowing about it. It caused much resentment but nothing much can be done without spending considerable time and money (which nobody has) on a legal challenge. Another one in the Borders is on the verge of being grabbed by the owner of a large landed estate. Again, locals are nervous, unwilling to speak out in public and have limited funds to challenge. Many more such cases litter the Scottish countryside.
This is why, during the Carluke investigations, as a new Land Registration Bill was being debated in the Scottish Parliament, I argued that commons should be afforded legal protection by means, in the first instance, of a “protective order”. This would “freeze” any claims until a proper and impartial investigation could be carried out into the legal history of the land and avoid any land grabbing. Unfortunately, Fergus Ewing appeared to take exception to this idea and, like other proposals I made, he admitted having spent “spent zero minutes and zero seconds studying the issue”.
This was typical of the Scottish Government’s approach to the Bill which appeared to be solely focussed on the need and wishes of the legal profession, property professionals and the Keeper. Even a modest proposal that the 1695 Act that allows commons to be divided be repealed (being an act passed by the landed class to appropriate common land) was rejected by Ministers on the grounds that “The Act allows an area of commonty to be divided among the owners either (1) where holding the land as Commonty no longer suits the parties or (2) to allow enclosure and cultivation of the land. In modern common ownership, a similar end may be achieved by an action of division or sale. It is not desirable to remove this right from the owners of Commonty”.
This was stunning. A government in 21st century Scotland was defending a law devised in the 17th century to steal land.
We were aware, of course, that in claiming the Black Law commonty, we were deploying exactly the same methods as the landed class. The difference, of course, was that we were doing so to pursue the goal of restitution rather than personal enrichment. Which is why, in addition to overcoming the complexities of making much a claim, providing a means to register protective orders, and repeal the 1695 act, we also need a land restitution act to recover land that was once held in common.
Finally, this tale emphasises the fact that community ownership of land is not, as some would argue, a novel or new notion. It is a very old one in Scotland’s parishes and burghs. It it just that the landed class, their lawyer friends and successive Parliaments of property owners have conspired (through Acts such as the 1695 one which is apparently of such great importance today) to rob us of our collective inheritance.
Which is why this 33 acre piece of moorland high in the Lanarkshire moorland may represent a small but significant turning point.
PS We also submitted an application to register a title in the loan running up to the commonty (a loan is a public way that is itself common land). The Keeper rejected this claim on a legal technicality. Here is a photograph looking down the loan from the common.
(1) This is the same commonty referred to in Chapter 22 of The Poor Had No Lawyers. Ian Adams’ research on Scottish commonties (Directory of Former Scottish Commonties) was published by Scottish Record Society in 1971.
(2) I would like to share this report with you but like many others I have written, it belongs to my client, Carluke Development Trust and it contains details of our secret methods.
(3) Bona vacantia is one of a number of Crown property rights that are devolved to Scottish Ministers.