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Cui Bono? Who Leaked the Harassment Committee’s Conclusions?

17. March 2023 · 23 comments · Categories: Democracy, Governance, Legal affairs, Politics

TWO YEARS AGO

Two years ago, on 18 March 2021, the Committee on the Scottish Government Handling of Harassment Complaints (the Committee) met for the final time and signed off its Final Report which was published on 23 March 2021.

The day is infamous due to the leaking of some of the Committee’s conclusions before it had even completed its deliberations. At 18:58, James Mathews from Sky News reported the Committee’s conclusions in a tweet and live on air.

Later that evening, the First Minister, Nicola Sturgeon, who was one of those whose actions were under investigation, accused me and my opposition colleagues of having made our minds up before she gave evidence and claimed that we were responsible for the leak.

“What’s been clear is that opposition members of this committee made their minds up about me before I muttered a single word of evidence. Their public comments have made that clear. So this leak from the committee – very partisan leak – tonight before they’ve finalised the report is not that surprising.”

The next day, three of the four SNP members of the Committee (Alasdair Allan, Maureen Watt and Stuart McMillan) issued a media statement accusing me and my opposition colleagues of having ”railroaded though their prejudiced assertions based purely on political considerations,” and alleging that, “for the opposition, this was never about the truth. It was never about the evidence and, shamefully, it was never even about the women. All of these are being sacrificed in pursuit of political ends.”

I remain hurt and angry at having these false allegations made against me but chose to let matters rest at the time. Clearly the First Minister and her colleagues were determined to pin the blame for the leak on us and it was futile to engage in an ongoing war of words over the matter.

This blog seeks to determine who was responsible for the leaking of this information.

I am certain of the following:

I do not know how the Committee’s conclusions found their way into the hands of Sky News;
I know that I was not responsible;
I am confident that no member of the Committee leaked the conclusions directly to James Matthews.

CUI BONO?

In this blog, I ask cui bono? Who benefits?

This famous principle suggests that the party most likely to benefit from the leak is probably responsible for it.

What follows is first of all a report of the complaints made to the Ethical Standards Commissioner in the aftermath of the Committee’s work, then a chronology of the events leading up to the leak, and finally an analysis of who stood to gain from the leak.

COMPLAINTS

In October 2021, I received a letter from the Ethical Standards Commissioner containing over 50 complaints from individuals that I and other colleagues had breached the MSP Code of Conduct in two ways. The first (Category D complaints) was that I had openly discussed information in the public domain that was confidential to the Committee. The second (Category E complaints) was that I had leaked information (directly or indirectly) to the media that was confidential to the Committee. These latter complaints related to the 18 March leak to Sky News. None of the complainers to my knowledge claimed to have any evidence of any of the complaints that they were making.

The Commissioner used his statutory powers to require that all texts, emails and other information relating to any contact with named media outlets be handed over to him.

In May 2022, the Commissioner wrote to me to say that he had dismissed as inadmissible all of the Category D complaints.

On 6 September 2022, the Commissioner wrote to me to advise that he had concluded his investigation and had dismissed all of the Category E complaints that I had leaked confidential information to the media. Having assessed all interactions between Committee members and the media and related parties, he found no evidence to support the complaints.

However, he went on to say that he had sought legal advice on the possibility of obtaining information on the source of the leak from political parties and media outlets but that there were no reasonable prospects of success were he able to pursue such a course of action. This is not surprising in relation to the media where the protection of sources is a well established principle. But it is an intriguing claim in relation to political parties, given the powers in Section 13 of the Act which allow the Commissioner to compel the production of evidence from almost any person. Failure to do so is a criminal offence (Section 15 of the Act).

In any event, this particular investigation was over – as was another one initiated by myself.

I had long felt that the statement issued by the three SNP MSPs was defamatory and in breach of the MSP Code of Conduct (see end of this blog for full text of their statement). In particular the Code makes clear that MSPs must not provide the media with any comments on Committee reports until they are published.

I did not have the energy nor the presence of mind at the time to make a complaint. I was furious at them for their slurs but wanted to leave the whole sorry saga behind me. But on the first anniversary of the leak, I felt it was time to hold them to account for what I considered to have been a flagrant breach of the Code of Conduct and so on 20 March 2022, I made my own complaint to the Commissioner about their actions.

On the same day that complaints against me were dismissed (22 September 2022), the Commissioner wrote to me to rule that he had dismissed my own complaint against the three SNP MSPs. He did so on the basis that because the conclusions of the Committee were in the public domain as a result of the Sky News report, they could no longer be considered confidential and so were not covered by the confidentiality provisions of the Code of Conduct.

CHRONOLOGY OF EVENTS LEADING UP TO THE LEAK

WEDNESDAY 17 MARCH 2021

The Committee’s inquiry was broken down into four strands of work, namely

The development of the (harassment complaints) procedure
How the complaints were handled
The judicial review of the process
The Scottish Ministerial Code

The Committee agreed early on to present conclusions on all four of these strands.

Over many meetings in February and March 2021, the Committee considered drafts of the Final Report. By 17 March 2021, we had not yet agreed the section of the report on the Ministerial Code. We had agreed that we would not come to any conclusions on whether the First Minister had breached the Ministerial Code. This was the subject of a separate investigation by the Independent Advisor on the Ministerial Code, Mr James Hamilton. However as the Committee’s report makes clear:

653. Mr Hamilton will gather his own evidence and reach his own conclusions in his own report. He will do so independently of this Committee and he is not obliged to take into account any conclusions we reach. Nor do we think it would be appropriate for us to seek to direct Mr Hamilton’s work or influence his own conclusions.

654. However, it remains the case that the Ministerial Code is also in our remit. We have conducted our own evidence taking on this subject. We consider it important that we report to the Parliament on the Ministerial Code in order to fulfil our remit.

By 17 March 2021, we still had no draft conclusions on the Ministerial Code strand.

At 09:53 on the Wednesday, the Clerk sent an email to Committee members with an attachment containing some suggested amendments from three members of the Committee. None were drafted in the form of actual text that could be added to the report but were instead arguments about why we should say one thing or another.

Later that evening, a final draft report for discussion the next day was circulated. I was of the view that the Ministerial Code conclusions were weak. Clerks clearly felt reluctant to go too far in their suggested text as this was undoubtedly the most politically sensitive part of the report’s conclusions.

And so I began drafting some conclusions on the Ministerial Code together with some wider reflections. I sent these to the Clerk at 22:14 that evening and they were circulated the next morning to Committee members at 08:12.

THURSDAY 18 MARCH 2021

On 18 March 2021, the Committee met for the last time to debate and agree its Report. It met from 09:00 – 12:16, 13:38 – 14:30 and 18:29 – 19:35. All meetings were held virtually.

My proposed text came up for discussion shortly after 14:00 and was the subject of some heated debate, with SNP members very unhappy with the draft but having proposed no alternative texts of their own. I offered to take the text away and redraft it to take account of views that had been expressed. I sent a final draft with some modest amendments to the Clerks and it was circulated to MSPs at 16:31.

We reconvened again at 18:29. We had the Ministerial Code, Overall Conclusions and Wider Reflections texts still to agree. At around 18:45, I formally moved that we agree the text of the proposed conclusions to the Ministerial Code section (these ended up as paragraphs 717-721 in the Final Report). They were agreed by division.

Thirteen minutes later, at 18:58, James Matthews dropped his bombshell and reported the conclusions of the Ministerial Code section on twitter and on Sky News. The Committee was still meeting and the report was not due to be published until the following Tuesday. There was a fair degree of astonishment and anger. Stuart McMillan walked out of the virtual meeting.

OTHER LEAKS

This was not the only occasion when confidential material had ended up in the public domain. The weekend after the Sky News leak, confidential evidence from the two complainers, Ms A and Ms B, from whom the Committee had taken evidence earlier in the week on 15 March, appeared in the media. Members had been explicitly advised of the sensitive nature of the evidence we heard, of the potential for contempt of court and of the risks of breaching the agreement entered into between the Parliament and the complainers in relation to how their evidence would be heard and reported. Nevertheless, confidential material containing salacious detail ended up being briefed to The Sunday Times and printed on 21 March 2021.

In January and February 2021, the Committee was engaged in a protracted dispute with Mr Salmond about the publication of his evidence and arrangements for giving oral evidence. Mr Salmond’s legal representatives, Levy and McRae, chose to send various emails and evidence directly to Committee members rather than, as advised, directly to the Clerk of the Committee.

At 15:32 on the afternoon of 22 February 2021, David McKie of Levy and McRae, wrote to the Committee to report that his client (Mr Salmond) had just been approached by media representatives who advised him that the First Minister had organised a media interview at 4 p.m. to “rebut our client’s latest submissions to the Committee.” These submissions had been sent to the Committee on 17 February but were not published until after 19:00 on 22 February. Whether the First Minister’s media interview was in fact in response to Mr Salmond’s latest submissions or alternatively in response to the briefings that Mr Salmond’s team had themselves been providing to the media, I cannot say. But if it was the former, and she had sight of his written submissions, then clearly someone had leaked them.

CUI BONO?

The sources of leaks are seldom found. I still do not know how some of the Committee’s conclusions ended up being broadcast by Sky News ten minutes after we agreed them. But I can say something about the likely culprits.

Leaks typically occur when the person leaking considers that either they have something to gain from the leak or that it is in the public interest for information to be publicised. People do not leak confidential documents on a whim. It is a risky venture and tends only to be done when the stakes are high and when there is a clear rationale for doing so.

First of all it is important to note that James Matthews must had had the draft conclusions well before 18:58. It is inconceivable that whoever leaked them did so at 18:45, that James Matthews managed to assure himself of the authenticity of the documents and organise an outside broadcast live on TV all within 13 minutes. As we will see, I think there was contact with Mr. Matthews in that time window but it was not the first contact that had been made.

The first draft conclusions on the topic of breaching the Ministerial Code were circulated to the Committee at 08:12 on Thursday. The draft conclusions that James Matthews reported were circulated at 16:31. We voted on them at 18:45 and they were then revealed on Sky News at 18:58. Whoever leaked them must have provided them to James Matthews well before 18:45.

It is worth noting as well that the meetings held on the Thursday were all virtual. Anyone could have been present with any of the MSPs hearing the Committee’s deliberations.

So who leaked the document?

As I argued at the outset, I am quite certain that none of the MSPs on the Committee leaked it directly to James Matthews. This would have been highly risky and without any evident purpose. The report would be published the following Tuesday after the verdict from James Hamilton and two days before Parliament went into recess for the May election. The report would, in presentational terms, be the last word.

To the extent that any opposition party MSP considered that there was any political advantage to them from the conclusions, they just had to wait just over four days. In any event, if they thought that the press should see them before Tuesday, they would, given the sensitivity of the leak, consult their own media teams and leaders. Even then, if there was any partisan gain to be had, the Sunday newspapers were the obvious channel for any such leak. There was one party for whom there was an evident benefit in leaking the conclusions, however.

Whilst not at first appearing to be of benefit to the First Minister, the leaking of the conclusions could be used by the First Minister’s political operatives as the precursor to the fury and condemnation directed at the Committee and effectively neuter the impact of the final report when it landed on Tuesday. It was a high risk strategy but there was little to lose. The Committee’s recommendations would have to be dealt with one way or another on the following Tuesday. James Hamilton’s report was due on Monday.

There was a channel of communication from the Committee that had been revealing confidential material for some months. I spoke to two political journalists, both of whom claimed that they received briefings from Scottish Government Special Advisers (SPADs) at various points during the inquiry. Much of the content of these briefings was spin on oral and written evidence that was in the public domain, but on a number of occasions it concerned details about process and evidence that was not in the public domain. Such information had to have come from the Committee, but neither myself, nor Liberal Democrat, Labour or Conservative MSPs were in the habit of briefing SPADs.

All of which leads me to conclude that it was the SNP which stood to benefit from the leak, as it provided an excuse to trash the Committee, its opposition members and, by extension its report and conclusions.

SO WHAT HAPPENED?

Here’s my best assessment.

The briefing provided to journalists by SPADs came from information supplied to them by an SNP member of the Committee. At some point on Thursday after 08:12 when the first draft was circulated, a SPAD was provided with the draft conclusions. They were perhaps emailed or perhaps the SPAD was present with the member at what was a virtual meeting.

Either way, the Government needed to know as soon as possible what was going to hit them on Tuesday and the job of the SNP member was to provide advance warning of what was to come.

During Thursday, a plan was devised that, for reasons of plausible deniability, was never shared beyond a very small circle of advisers and certainly not with the First Minister, who could not be seen to be part of the operation and who needed to be able to react with genuine surprise and fury at the leak.

Advisers got hold of the early 08:12 draft and decided that it should be leaked. This would not be the first time that James Matthews had been given stories by sources close to the First Minister that were damaging to Mr. Salmond. James Matthews was offered the exclusive. But SPADs and Mr. Matthews had to wait until the Committee had voted on the the text. After 16:00, it would be clear that the Committee was going to divide on the text and that it would pass by a majority. James Matthews got organised and ready to go on air at a moment’s notice. Shortly after 18:45, when the vote took place, he was given the all-clear to broadcast the text.

THE FURY

After James Matthews had dropped his bombshell, the journalist, who was known for his assertive interviewing style, waited for Nicola Sturgeon at her home. This is unusual. Journalists by convention do not doorstep the First Minister at her home unless there is a major news story breaking involving her – which there was. James Matthews was the only journalist there. Was he there on his own initiative or had he been tipped off?

The First Minister accused me and other MSPs of being partisan and having made up our minds before hearing her evidence.

This was followed the next day by Alasdair Allan, Maureen Watt and Stuart McMillan, with their faux outrage and accusations, trashing the committee’s reputation. Social media was awash with condemnation of myself and my opposition colleagues. The narrative was established that we were partisan and had debased Parliament by leaking sensitive information.

The First Minister’s spokesperson released a statement questioning the integrity of the Committee’s members (presumably excluding the SNP members, though at this stage that hardly needed saying), accusing us of “baseless assertion, supposition and smear”. The irony of this last accusation was clearly been lost on whoever wrote the statement.

Spin doctors held private briefings with journalists to try to undermine my personal integrity in particular.

Meanwhile, I responded to over a dozen queries from journalists about the authenticity of the leak, by saying that I was barred from commenting until the report was published.

How naive of me.

To cap it all, the leak of Ms A’s and Ms B’s evidence on the Sunday amplified this narrative a hundred-fold, with further accusations of bad faith and betrayal by us.

The plan was a success. The reputation of myself and my opposition colleagues was in the gutter. Un-evidenced claims that one of us had been the source of the leak became alleged established fact.

The Committee’s reputation was in tatters and its conclusions derided.

AFTERMATH

We still do not know who was responsible for this leak. But it is notable that the Ethical Standards Commissioner wanted to interview political parties but for, following legal advice, concluded that he couldn’t..

I have said nothing about the leak of Ms A’s and Ms B’s evidence, but cui bono?

Finally, the MSP Code of Conduct is not fit for purpose. It is now abundantly clear that any MSP can, for malign motives, leak Committee reports and, indeed, any other confidential information.

They can then conduct a systematic demolition job on the Committee’s conclusions, since the rules on confidentiality no longer apply.

Meanwhile mugs like me follow the spirit of the rules and make no comment. I shall be writing to the Presiding Officer on the matter.

Thanks for reading.

——————————————————————————————————-

Statement by Alasdair Allan, Maureen Watt and Stuart McMillan

STATEMENT FROM MSP [sic] MEMBERS OF SGHHC COMMITTEE

“This Committee was meant to carry out a dispassionate search for the truth.

But, at the very last minute, without full consideration of the evidence, the opposition railroaded through their prejudged assertions based purely on political considerations.

On the question of the First Minister offering to intervene, there are two sides of the story and we have evidence from both sides, but opposition MSPs chose not to reflect that by selectively referencing only the evidence which supported their preconceived narrative.

We have also heard clear, consistent evidence that the First Minister had no knowledge of concerns of inappropriate sexual behaviour by Alex Salmond before November 2017.

Yet, without a shred of evidence to the contrary, the opposition simply used their majority on the committee to insert 11th-hour predetermined political assertions that have no basis in fact. That is simply disgraceful and wrong.

For the opposition, this was never about the truth. It was never about the evidence and, shamefully, it was never even about the women. All of these are being sacrificed in pursuit of political ends.

This is the politics of desperation by the opposition members.”

Alasdair Allan
Maureen Watt
Stuart McMillan

Note:

We the above Members release this joint statement to address issues raised by the leaking of information – in blatant contravention of the MSP code – relating to the unfinished and unpublished report from the Committee on the Scottish Government Handling of Harassment Complaints.

We have previously refused to give a running commentary on the Committee’s work but media speculation has compelled us to comment solely on accounts recently placed in the public domain and we will not comment further until the full report is published.

Climate Finance and Carbon Offsetting

03. March 2023 · 16 comments · Categories: Environment, Finance & Money, Forestry, Land Reform, Land Use, Politics, Scotland's hills

Image – Minister for Green Skills, Circular Economy and Biodiversity, Lorna Slater MSP signing a Memorandum of Understanding with Hampden and Co., Palladium and Lombard Odier Asset Management Europe) Ltd.

On 1 March 2023, NatureScot announced a £2 billion private finance pilot designed to secure landscape scale restoration of native woodlands.

The project involves NatureScot and private companies Hampden and Co., Palladium and Lombard Odier Asset Management Europe) Ltd.

NatureScot has provided me with a copy of the Memorandum of Understanding (MoU) with the agreement of the investment partners. It is worth a read – it is only 5 substantive pages.

In the MoU, signed in February, the parties agree to explore the potential for a significant investment in woodland creation in Scotland focussing on the Scottish Borders and the Atlantic Rainforest.

The parties aims are inter alia to “catalyse private investment into the project at significant scale”, to deliver “high integrity carbon investment”, demonstrate how government policy and subsidy support can enable private investment into nature restoration” and “maximise the benefits for nature and communities from the investment”.

Hampden and Co will provide finance for the project via Special Purpose Vehicles (SPVs).

Palladium will design the project, establish SPVs and lease with partners on the ground to agree terms of investment and carbon contracts.

Lombard Odier Asset Management Europe) Ltd. will be responsible for selling carbon credits.

The project will provide financial returns for landowners and investors whilst claiming to “deliver significant and lasting community benefit“. See the NatureScot media release for a full FAQ on the project

This blog is not so much about this project which will at least provide some greater transparency around how carbon markets may evolve in Scotland but about the assumptions and policy decisions which appear to lie behind it and other activity undertaken by Scottish Ministers to promote carbon markets and private investment.

Carbon Offsetting

Scottish Ministers have stated an ambition to develop carbon markets in Scotland as a means of securing private investment in nature restoration and contributing to the statutory net-zero climate targets. Offsetting is the means by which polluters can buy carbon credits to offset their emissions. Carbon credits are typically sold by brokers on behalf of landowners whose management activities (such as tree planting and peatland restoration) lock up carbon or (in the case of peatland restoration), curb existing emissions.

The development of a carbon market is seen as key to attracting the kind of investment represented by the financiers behind this project as as has already taken place by financial companies such as Aviva and Standard Life.

The problem with this whole approach is that there has been no comprehensive assessment made of to what extent carbon offsetting should be part of Scotland’s net-zero plan. Every ton of carbon that is sequestered by woodlands (for example) and offset against emissions by cement factories or fashion companies, is a tone of carbon that is contributing nothing in the long term to net-zero since it has been sold as an offset to a polluter enabling them to continue polluting.

How much of Scotland’s land shoudl we allow to be used for this purpose?

No answers have been forthcoming from Government and yet it is a central player in this market since it provides the key means of validating claims about carbon credits through its Woodland Carbon Code and has provided guidelines for investors through the Interim Principles for Responsible Investment.

In the FAQ associated with the project, NatureScot claim that carbon offsetting is an important part of global agreements on climate change. However, there are no legally-binding agreements in place that govern who can use offsetting. The MoU claims that an ethical framework will be developed to ensure that offsets are used only by “legitimate businesses who have credible carbon reduction pathways in place”.

Even more fundamentally, even if offsetting is a legitimate means of companies with unavoidable emissions achieving net-zero, why should then be expected to acquire offsets rather than simply, for example, having their emissions assessed by Government as unavoidable. Such registered emissions would then be accounted for within national carbon budgets with no need for a private, unregulated market in carbon offsetting.

The £20 billion finance gap

Central to the Government’s argument is the so-called “finance gap for nature”. In NatureScot’s media release, the Minister, Lorna Slater is quoted,

Biodiversity Minister Lorna Slater said: “The finance gap for nature in Scotland for the next decade has been estimated to be £20 billion. Leveraging responsible private investment, through valuable partnerships like this, will be absolutely vital to meeting our climate targets and restoring our natural environment. Scotland is well placed to take a leading role by offering investors the opportunity to generate sustainable returns from the restoration and regeneration of our landscapes. This investment will generate multiple benefits: ending the loss of biodiversity, improving water quality, reducing the risk of flooding, regenerating local communities and creating green jobs.”

What exactly is this £20 billion finance gap? The figure derives from a report published by the Green Finance Institute, an “independent, commercially focussed organisation backed by government and led by bankers”. In the “Finance Gap for UK Nature” report, published in October 2021, the gap between required spending and committed spending by Government to deliver nature restoration is claimed to be between £44 and £97 billion. For Scotland, the gap is £15-£27 billion with a central estimate of £20 billion.

The nature-based outcomes covered by this gap are illustrated below (figures are UK-wide).

The breakdown in the finance gap for Scotland is illustrated below.

The finance gap thus covers a wide range of outcomes of which, for Scotland, the largest (£9 billion) is climate mitigation through bio-carbon). The second largest is the protection and restoration of nature (£8 billion). Woodland creation is only one part of this with others including protecting endangered species, restoring freshwater habitats, ensuring seafloor habitats anre healthy and sustainable and achieving biodiversity net gain.

Should we be planting trees?

Of the £20 billion finance gap, £8 billion is for the restoration of habitats and only part of this (the Finance Gap for UK Nature report provides no further breakdown) is for woodland creation and management.

In addition to the unanswered question of what role (if any) offsetting should play in Scottish climate finance, is the question of whether we even need all of this private investment in the first place. Clearly we do need private investment. Over 85% of Scotland is privately-owned and the public is not in a position to make all the investment that is required.

It is at this point, however, that there appears to have been no detailed analysis by Government as to how nature restoration could be supported. Instead, it has jumped onto the rapidly growing carbon offsetting model.

There are alternative means of restoring nature. Here are some.

Landowners could be placed under legal obligations to restore nature (the damage to which has been caused in large part through their management activities) through the tenure system or through policy instruments such as the Land Rights and Responsibilities Statement.
Government could implement the recommendations of the Deer Working Group to reduce wild deer densities to the level required to allow forest regeneration.
Reform agricultural support to require nature restoration as a condition of agricultural subsidy.
Strengthen biodiversity gain through the planning system.
End damaging actives such as muirburn.
Reform land and property taxes to deliver woodland, water and peatland restoration

Regulating existing ownership and use of land in ways designed to restore nature and contribute to net-zero has huge potential to achieve nature restoration goals. Much of this will be at no cost to the public purse and will not involve global financial corporations becoming partners in any such activity.

Currently, government is sleep-walking into a future of global capital and carbon markets with no clear policy on whether and why offsetting should even be supported and no clear plan as to the extent to which alternative policy measures could deliver landscape scale nature restoration.

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

Andy Wightman for Highlands and Islands

09. March 2021 · 9 comments · Categories: Politics

I will be a regional list candidate for the Highlands and Islands in the Scottish Parliamentary election in May 2021.

To be elected, I will need around 15,000 votes. I have launched a Crowdfunder to raise £10,000 to pay for the development of a digital campaigning platform, newsletters and media and communications support. PLEASE do consider making a donation. https://www.crowdfunder.co.uk/andy-wightman-for-highlands-and-islands

As an Independent Candidate permanently based in Lochaber (from 26 March 2021), I am offering you the opportunity to vote for experience, integrity, independent thinking, a commitment to strengthening local democracy and a track record of success.

My background is as a land rights campaigner, author, and researcher. Since the early 1990s, I have worked with communities across the Highlands and Islands supporting them to achieve more local control of land and resources. For the past 5 years, I have been an MSP for Lothian Region.

Holyrood needs more independent voices. Over the past 5 years, I have campaigned successfully on a range of issues.

As an MSP (2016-21), I led the successful legal challenge in the European Court of Justice that ruled that Article 50 could be unilaterally revoked.

I launched the Homes First campaign to better regulate short-term lets and successfully led opposition to the latest regulations that adversely affect Bed and Breakfast businesses.

I introduced a Bill to incorporate the European Charter of Local Self-Government to strengthen local democracy. It will be voted on at its final stage in Parliament within the next few weeks.

I have championed tenants’ rights and the need for more affordable housing including the desperate need to make land available at affordable prices reflecting its existing use value.

As a long-standing land campaigner (author of Who Owns Scotland 1996 & The Poor Had No Lawyers 2010), a focus of my election campaign will be a Land for the People Bill to reform Scotland’s antiquated land laws and democratise the ownership and use of land and property.

Standing for election as an Independent is extremely challenging. I have no party machine, no corporate donors, and no party members to support me.

I will be relying on a digital, grassroots campaign to win support and spread the word of my candidacy to others. I will need 15,000 votes to be in with a chance of winning a seat.

IMPORTANT INFORMATION

Donations will be made to Andy Wightman.

For the purposes of complying with electoral law, I need to collect information on donors.

Anyone donating over £50 is deemed to have made a regulated donation and will be subject to permissibility checks.

All such regulated donations will have to be reported to the Electoral Commission in my election return.

Coronavirus (Scotland) (No.2) Bill – housing amendments

20. May 2020 · 6 comments · Categories: Housing, Human Rights, Legal affairs, Politics

This is a brief blog to explain the background to the rented housing amendments I lodged at Stage 2 of the Coronavirus (Scotland) (No.2) Bill on Tuesday 19 May and those I intend to lodge at Stage 3 to be considered on Wednesday 20 May.

The Coronavirus (Scotland) (No.2) Bill is the second piece of emergency legislation to come before the Scottish Parliament. The first was the Coronavirus (Scotland) Act passed in a single day on 1 April.

Both pieces of legislation are designed to respond to the challenges posed by Covid-19 and typically make some administrative changes to how the courts and public bodies work as well as some more substantive policy changes in housing, licensing and justice.

Many people are facing new hardships due to job losses, declines in incomes and wider insecurities. These include renters who, like everyone else, are required to stay at home but whose security in their home its subject to laws on housing tenancies and the attitudes of landlords.

Responding to this, the first Act extended the period of notice required to be given by a landlord to a tenant if they wished to evict them. This was designed to ensure that renters could not be evicted during the pandemic. These reforms, however, did nothing to stop evictions being initiated during the so-called emergency period. I lodged a series of amendments to prohibit any evictions being sought during the crisis (not simply require longer notice periods). These amendments were rejected by Parliament.

Since 1 April it has become clear that longer notice periods will not be sufficient to deal with the hardship likely to be faced by many tenants – hardships that will extend beyond the emergency period when landlords will, if nothing changes, be within their rights to seek to evict tenants once again on the grounds of rent arrears that may have accrued as a result of hardship during the crisis.

So, when the new Coronavirus (Scotland) (No.2) Bill was introduced to Parliament on Monday 11 May I took the opportunity to propose amendments that would seek to deal with the post-covid period. I notified the Housing Minister on Tuesday 12 May of my intentions and invited him to discuss my proposed amendments with a view to potentially supporting them at Stage 2 (or stating why he could not).

I received no response.

Thus I lodged amendments 16-20 which did four main things.

Amendment 16 established a tenant Hardship Fund to respond to tenants in particularly acute distress.

Amendment 17 sought to freeze rents for two years.

Amendment 18 provided that in certain circumstances (to be seat out by Ministers) rent liability for some tenants facing particular hardship could be extinguished.

Amendments 19 and 20 were deigned to ensure that any rent areas accrued during the crisis would continue to be payable to landlords but could not be ground for eviction. This would prevent tenants losing their home but they would continue to be liable to pay any rent arrears accrued.

A number of parties including social housing interests wrote to the Committee with their concerns. I was not copied in to any of these representations and thus was unable to respond to them.

All the amendments were defeated by SNP and Conservative members of the Committee with the Liberal Democrat member supporting three of them and opposing two of them.

The arguments can be seen in the draft Official Report of the Meeting. All the housing amendments were dealt with at the beginning of the meeting.

Debate now moves onto Stage 3, the amendment deadline for which is 0930 on Wednesday 20 April. I am lodging a similar suite of amendments again but further amended to reflect objections made at Stage 2.

Amendment 16 will be taken forward by Pauline McNeill MSP (note that these numbers relate to the Stage 2 amendments, the amendment numbers for Stage 3 will be different)

Amendment 17 will now apply only to the private rented sector and the baseline date will be 1 April so as not to disadvantage landlords who have reduced rents during the crisis.

Amendment 18 now makes clear that writing off rents is only for tenants facing unusual or extreme hardship and it will be for Ministers to define this in regulations. It is NOT and NEVER was framed as a broad writing off of rent.

Amendments 19 and 20 now apply only to the private rented sector and make explicit that arrears can only be disregarded for the purpose of evictions (but remain payable) if the arrears are directly liked to coronavirus.

The redrafted amendments focus the intentions more explicitly, respond to objections and remain a modes but important suite of reforms designed to afford proportionate protections to tenants facing hardship because of factors beyond their control.

Scotland still lags behind many continental European countries in tenants rights and politicians continue to instinctively protect propertied interests rather than the interests of tenants. Since the propertied class have assets, they are relatively well off. For tenants, however, we are talking about their homes, the schools their children attend and the jobs they have. Tenants stand to possibly lose all of this and be kicked out of their homes. Landlords will still have a valuable asset.

It is time to stand up for the human right to a home.

Sunlight or shadows – will the Government’s new public register of land ownership be effective in improving transparency?

14. January 2016 · 3 comments · Categories: Democracy, Land Reform, Land Reform Bill 2015, Land Registration, Politics, Uncategorized

Sunlight or shadows – will the Government’s new public register of land ownership be effective in improving transparency?

by Megan MacInnes, Land Adviser with Global Witness

Yesterday the Scottish Government announced that their solution to the problem of not knowing who is behind the opaque corporate structures owning Scotland’s land was to create a public register of those who control land, (media release here and letter to RACCE here) as part of the Land Reform (Scotland) Bill currently passing through parliament. This step should be broadly welcomed and is a significant step forward from the previous proposals in the Bill to improve transparency of Scottish land ownership.

On paper this announcement appears close to the improvements to transparency of land ownership which I blogged about two weeks ago, but is it really as good as it sounds?

No-one disputes that not knowing who is really behind major swathes of land in Scotland is a problem. It prevents local communities living on or affected by land from contacting the true owner if they have a problem (rather than an anonymous shell company), it prevents law enforcement agencies from investigating crimes and it’s ironic that having won the right to roam, Scotland’s citizens don’t have the right to know who truly controls and makes decisions about the land they are walking on.

In a l etter accompanying the Government’s announcement, Minister for Environment, Climate Change and Land Reform, Aileen McLeod MSP, describes their intention to “requir[e] the public disclosure of information about persons who make decisions about the use of land in Scotland and have a controlling interest in land”.

However, the devil is certainly in the detail and there are many ways in which this commitment may not provide us with what we really need to know about who truly owns Scotland’s land. The potential for loopholes and exemptions which would render this register meaningless are substantial.

Most importantly (and let’s get the boring technical stuff out of the way first) this register needs to consist of the “person(s) of significant control” of the legal entities owning land in Scotland. This term is the technical definition of what’s more commonly known as “beneficial ownership” and means that what is registered are the names of the individual people who either own or control land in Scotland. This term already applies in Scotland through a UK-wide register of company beneficial ownership which was introduced in 2015. Adopting this technical definition is the only way to ensure the register will include what we need it to.

This register has the potential to finally shine a light on some of Scotland’s most shadowy corporate entities, for example Scottish Limited Partnerships and the shell company structures used to hide land ownership in Scotland in overseas tax havens and secrecy jurisdictions. Therefore, it’s essential that there are no loopholes or exemptions which these kinds of corporate vehicles can exploit.

The register should of course be free and fully publicly accessible.

We also have questions about process. What the Government’s proposal does is push the more difficult discussions into the next Parliament. So it’s important that the Bill describes the register in robust enough language that it cannot be later watered down, as well as introducing a firm duty and deadline by which the regulations providing for this register have to be adopted.

One major question remains however – why the Government has proposed this register to be separate from the Land Register? My earlier guest blog outlined the reasons why expanding the Land Register requirements to include beneficial ownership appears to be the simplest and most administratively straightforward route to achieving this goal.

But still – what a difference a week makes. This announcement has completely changed the terms of the debate about transparency in land ownership in Scotland and this can only be good. What we need now though are tough ideas and quick thinking to close potential loopholes and ensure this commitment once and for all brings Scottish land ownership out of the shadows.

Transparency in the Land Reform Bill

07. January 2016 · 23 comments · Categories: Democracy, Land Reform, Land Reform Bill 2015, Land Registration, Politics

Transparency in the Land Reform Bill: the only effective solution is disclosing the human being, the ‘beneficial owner’, behind companies owning land

by Megan MacInnes, Land Advisor with Global Witness

The Scottish Government has responded to the Rural Affairs, Climate Change and Environment Committee’s Stage One Report on the Land Reform (Scotland) Bill and rejected its recommendation that companies that wish to own land in Scotland should be retired within an EU member state. I will be publishing a wider commentary on this in the next few days. In this Guest Blog, Megan MacInnes, Land Advisor with Global Witness, explores this issue and recommends an alternative solution.

As the new year brings us to the next stage in the debate over the Land Reform (Scotland) Bill, one issue continues to be controversial – whether we shall get to learn who really owns Scotland’s land?

This controversy relates to the fact that large areas of Scotland are owned by companies registered in secrecy jurisdictions known for providing anonymity from the prying eyes of the State and public scrutiny. The Government has made repeated commitments that this Bill will improve transparency of land ownership, but the measures proposed so far have been widely criticised. In their Stage 1 report on the Bill, the members of the Rural Affairs, Climate Change and Environment (RACCE) Committee concluded that “people in Scotland have a right to know who owns, controls and benefits from the land” but that currently the relevant sections of the Bill would “not achieve the policy objectives of improving transparency of land ownership”.

So if the Bill’s current proposals are not enough, what more can be done? Most of the discussions so far have focused on the proposal (originally made by the Land Reform Review Group) to require anyone who wants to buy land in Scotland via a company, to have to have incorporated that company within the EU. But a simpler and more direct solution exists with the potential to be much for effective in letting us really know who owns Scotland’s land – the requirement that when you register a land title with the Land Register under the name of a company, you also have to provide the names of the human beings who own or control that company. Technically, this means the registration of the ‘beneficial owner(s)’ of the company.

The RACCE Committee recommended both requirements be introduced to the Bill. In its response the Government ruled out the EU company registration requirement entirely but with regard to the requirement to register the names of the people owning or controlling those companies, the Government stated that there are “many complex legal and practical issues” being considered and that they will respond in more detail in due course.

The Bill’s current provisions for transparency, under what it calls the “right of access to information on persons in control of land” in fact provide no ‘rights’ at all. Section 35 enables only those who can prove they are directly affected by a landowner to submit a request about who owns or controls that land to a so-far unidentified “request authority”, who would then attempt to obtain that information. Section 36 enables the Keeper of the Registers of Scotland to also make such requests. Applications for such information are first made to the landowner, but if there’s no response then it is expected (but not specified in the Bill) that the request will be passed on to the authorities of the jurisdiction where the company owning the land is registered.

Not only are these ‘rights’ to request such information limited, they will not even work in practice. Neither provision require the landowner to hand such details over, but more importantly, these powers are meaningless in the secrecy jurisdictions where many companies owning land in Scotland are registered. This is because the reputations and economies of these jurisdictions (including Overseas Territories and Crown Dependencies of the UK) depend on providing safe haven and anonymity from prying eyes. These jurisdictions either are only able to share such information with tax authorities (for example, Jersey and the Cayman Islands, where the 71,000 acre Glanavon and Braulen Estate is registered), or are where the relevant authorities don’t maintain company ownership details in official records (for example, Panama, where the 56,000 acre Loch Ericht Estate is registered). Consequently any requests made by either the Keeper or request authority for information on who actually owns either estate will almost certainly be turned down.

The most comprehensive solution to knowing who owns Scotland’s land lies instead in publicly disclosing the names of those who ultimately own or benefit from the company which is buying the land, as the title is being registered. In doing so, the Scottish Government brings these transparency requirements directly within its own purview, rather than relying on the regulations of other countries. It also includes such requirements within existing administrative procedures, rather than burdening the Keeper and request authority with the task of trying to identify who is behind endless structures of shell companies expertly hidden away. If based on the model of the Crofting Register, then we’d not only learn about those behind newly owned parcels of land as they are registered, but this information would also be updated every time the smaller details of the title changed, so-called trigger or update events.

Ironically, despite the RACCE committee’s recognition of the right of people in Scotland to know who owns land in their Stage 1 report on the Bill, much greater consideration so far has been paid to how such transparency provisions would impact on the rights of landowners to privacy and property. Under the European Convention of Human Rights article eight protects an individual’s right to privacy and article one of protocol one protects the right to property. But, neither is absolute; States are allowed to interfere with both, as long as it is in the public interest and such action is proportionate – by which they mean that what is proposed will achieve the desired objective and is deemed to be reasonably necessary.

The public interest arguments for this disclosure are clear and supported widely across Scotland, including associations representing land owners. A number of existing laws and policies (not least the Community Empowerment (Scotland) Act 2015 and other sections of the Land Reform (Scotland) Bill) are likely to be compromised unless we have full knowledge of the ownership of land. But more broadly, land use and its management impacts on all of Scotland’s citizens and therefore there’s a legitimate reason for why everyone should have access to such information. For example, our participation in public consultations, such as the current one underway on Scotland’s 2016-2021 Land Use Strategy, are hindered by not knowing who owns land or the land-use decisions they are making.

Would such a change in the registration requirement also be proportionate? Asking those who ultimately own or benefit from land in Scotland to disclose their names to the Land Register is the most straight forward way to access that information. Critically, it is the only measure available which the Scottish Government can itself enforce.

So it appears that we shall not learn if we are ever to find out who owns Scotland’s land until the Government tables its amendments to the Bill on the 13^th January. It’s hard to imagine how the continued anonymity behind such large areas of our land and heritage can continue to be justified. But until the human beings behind anonymous shell companies used to own land are required to disclose themselves, we may be left within nothing in this Bill but empty promises.

Rates exemption was windfall gain for landowners

15. December 2015 · 17 comments · Categories: Democracy, Fiscal Policy, Land Reform, Land Reform Bill 2015, Politics

The Rural Affairs, Climate Change and Environment Committee (RACCE) of the Scottish Parliament published its Stage One Report on the general principles of the Land Reform (Scotland) Bill on 4th December. The plenary Stage One debate will take place in the Scottish Parliament on Wednesday 16th December.

The Report is thoughtful and considered. I don’t agree with all its conclusions but it provides might food for thought during the Stage 2 deliberations when the Bill is scrutinised in detail and amendments considered.

With the steadily growing interest in land reform, it is important at the outset to make clear that this Bill is not the sum total of land reform and cannot be expected of itself to deliver the kind of radical change that many are seeking. Further reform in land taxation, inheritance law, housing tenure and compulsory purchase are all being progressed separately. In addition, the demand to make the Bill more radical is constrained. Generally speaking, it is difficult to add a lot of new provisions to a bill as it is going through parliament.

Having said that by way of preamble, what of the Committee’s report? In this blog I highlight some of the points that strike me as interesting and explain why, in one part of the Bill, the Committee has come to very mis-informed conclusions.

As more and more people and organisations engage with the fundamentals of land reform (changing the legal, fiscal and governance framework for how land rights are defined, distributed and exercised), a range of refreshing perspectives is emerging. Two of these relate to inequalities and human rights.

NHS Scotland submitted valuable evidence on health inequalities and how land reform can both help to overcome some of these but can also be exacerbated if existing patterns or inequality are not confronted. Similar observations were made by Professor Annette Hastings during the passage of the Community Empowerment (Scotland) Act. The Committee makes important recommendations (90-93) on this topic which will help to ensure that equalities become a core part of land reform in the decades ahead.

Human rights is also an area that has received significantly more attention in relation to land rights in recent years. Community Land Scotland provided valuable focus on this in its Bunchrew Declaration from 2014 which highlighted the range of human rights issues associated with land reform. These go far beyond the traditional and rather narrow concerns of the protection of property rights in Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR) which is embedded in the Scotland Act 1998. This paper by Megan McInnes and Kirsteen Shields elaborates this point.

It is often overlooked that the observance and implementation of all international human rights instruments (indeed all international treaty obligations) that relate to devolved matters are within the competence of the Scottish Parliament (1).

Recommendations 121 and 122 helpfully address this important point.

Parts 1 and 2 of the Bill deal with the Land Rights and Responsibilities Statement and the Scottish Land Commission. Here, RACCE make some sensible recommendations that will clarify and improve the proposals in the Bill.

Part 3 deals with transparency of information about who owns land and, in particular the proposal originally contained in the December 2014 consultation that any owner of land in Scotland that was a legal vehicle such as a company or a trust should be registered in a member state of the EU. This proposal would end the ownership of land registered in tax havens such as Grand Cayman and Panama.

The Scottish Government has been very resistant (see here) to proceeding with this reform but the Committee recommends that it be looked at again and that it be applied retrospectively (thus existing non-EU entities would have to comply within a defined period of time). This is very welcome and should open up this important issue to further scrutiny.

Parts 4 and 5 on engagement with communities and the right to buy land for sustainable development. Again, the Committee’s recommendations are measured and helpful in improving the detail of how these provisions will will work in practice.

Part 6 is one of the simplest and straightforward reforms in the Bill – the removal of the 1994 exemption from non-domestic rates (NDR) granted to shootings and deer forests. Here, the Committee has expressed strong criticism of the proposal to end this exemption and made a number of recommendations. In broad terms, it is not convinced of the case for removing the exemption because of the potential impacts this might have. In coming to this conclusion, however, the Committee appears to have been seriously misinformed by the special pleading of those who stand to be affected by the proposal and to have relied solely on assertions made in evidence from landowners, shooting interests and gamekeepers, all of whom predicted impacts on rural jobs, economic and communities if the exemption was removed.

A key error in the Committee’s conclusions is to view NDR as a tax on businesses. A number of opponents of the proposal were keen to persuade the Committee of this. Scottish Land and Estates, for example, in its written evidence to RACCE claimed that,

“The proposal completely fails to recognise that sporting rights per se are not in fact a business”

“We believe that there would be a negative impact on rural jobs, tourism and land management”

“For all subjects where the sporting rights are not exercised as a business, this produces the entirely illogical and potentially unlawful situation whereby business rates are being levied on subjects which are not in fact businesses.”

Non-domestic rates are not a tax on businesses. They are a property tax – a tax on the occupation of land and property and based upon the rental value of of land and property. Many businesses of course occupy land and property but NDR is not a tax on their business (newspaper shop or factory). It is the capture of part of the rental value of the land and property they occupy. NDR is paid by many occupiers that are not businesses such as cricket clubs and secondary schools. Even the Scottish Parliament pays NDR.

Paragraph 310 of the report states that –

The Committee seeks a thorough, robust and evidence-based analysis of the potential impacts of ending the sporting rates exemption (including what impact imposing the exemption had in 1995).

There is little need for such an assessment for the simple reason that the impact of any reform of property taxation is well understood. By definition it has no impact on environmental matters (it is not an environmental tax) and no impact on social matters (it is not a welfare or employment tax). Of course, no-one likes have to pay tax especially if it is a tax that someone had gained an exemption from. But the special pleading made by landed interests is little more than a veiled threat that if the exemption is ended, those responsible for paying it will choose to do things that might have negative effects (reduce environmental management inputs or reduce employment). The tax itself has no such impacts and the potential impacts are straightforward to determine.

The impact is succinctly described in the Mirrlees Report as follows (this is in relation to land value taxation but the impact is exactly the same for any tax on the occupation of land or property).

“The economic case for taxing land itself is very strong and there is a long history of arguments in favour of it. Taxing land ownership is equivalent to taxing an economic rent—to do so does not discourage any desirable activity. Land is not a produced input; its supply is fixed and cannot be affected by the introduction of a tax. With the same amount of land available, people would not be willing to pay any more for it than before, so (the present value of) a land value tax (LVT) would be reflected one-for-one in a lower price of land: the classic example of tax capitalisation. Owners of land on the day such a tax is announced would suffer a windfall loss as the value of their asset was reduced. But this windfall loss is the only effect of the tax: the incentive to buy, develop, or use land would not change. Economic activity that was previously worthwhile remains worthwhile.” (2)

When rates on shootings and deer forests were abolished in 1995, the impact then was straightforward. It resulted in a windfall gain for landowners either because their land rose in value as a consequence of the removal of the recurrent liability or they could extract more rent since the occupier (who paid the tax) was relieved of the liability and thus able to afford a higher rent whilst being no worse overall (the new rent equalled the previous rent plus rates).

Given that the Committee is not routinely involved in fiscal policy, it perhaps not surprising that it has swallowed the assertions of those whose evidence was based on a flawed understanding of property taxes.

Over the past 20 years, the owners of shootings and deer forests have been granted an exemption from tax that has had to be paid for by increasing the burden on other non-domestic ratepayers. Over the course of two decades they have profited from this tax break. It is entirely reasonable when public finances are tight that such exemptions (which exist for no good reason) should be removed.

The re-establishment of a local tax liability on land devoted to shooting and deer forests ends the indefensible abolition of this element of non-domestic rating by the Conservative Government in 1994. To most people, it might seem odd that, whilst the hair salon, village shop, pub and garage are subject to rating, deer forests and shootings pay nothing. To take one example, the Killilan deer forest near Kyle of Lochalsh is owned by Smech Properties Ltd., a company registered in Guernsey which, in turn, is owned by Sheik Mohammed bin Rashid al Maktoum, the King of Dubai and Prime Minister of the United Arab Emirates.

Killeen was included on the valuation roll in 1994 at a rateable value of £3500. By comparison, the local caravan site had a rateable value of £3100. Today, the caravan site has a rateable value of £26,250 and pays £12,127 per year in rates whilst one of the worldʼs richest men, whose land is held in a tax haven has (unlike the local caravan site) paid no local rates for twenty years on the land he uses for shooting.

Why should caravan sites, pubs and local shops subsidise those who occupy shootings and deer forests? Non-domestic rates contribute to the revenue of local authorities used to pay for schools, roads, refuse collection, care homes, environmental and leisure provision and social care.

Back in the early 1990s, the abolition of the rates on shootings and deer-forests attracted considerable criticism at the time from opposition parties and by the then Chairs of Scotland’s Rating Valuation Tribunals who, in a memorandum to the Secretary of State for Scotland, wrote,

“Sporting estates like to describe themselves, when it suits them as being part of a sporting industry. In fact they are part of an inefficient trade which pays inadequate attention to marketing their product, largely because profit is not the prime objective.

These sporting estates change hands for capital sums which far exceed their letting value and which are of no benefit to the area, and are often bought because there are tax advantages to the purchaser, not necessarily in the UK.”

Dismissing the argument that sporting estates provide employment and should therefore be freed of the rates burden, the chairmen’s report points out that,

“..local staff are poorly paid, their wages bearing no relation to the capital invested in the purchase price, and it is not unusual to find a man responsible for an investment in millions being paid a basic agricultural wage. Many of the estates use short-term labour during the sporting season, leaving the taxpayer to pay their staff from the dole for the rest of the year. Estates can in many cases be deliberately run at a loss, thereby reducing their owner’s tax liability to central funds elsewhere in the UK.

Finally, the Committee is recommending analysing the impact of the exemption in 1995. Again, this is straightforward – the removal of the liability was capitalised into land values and resulted in windfall gains for existing owners. This was well understood at the time by landowners themselves.

In a letter written to members of the Scottish Landowners Federation in April 1995, the President, informed them that abolition make a “great success” for the Federation “culminating many years of negotiation”. “Many members will be relieved of substantial expense”, he observed and then went on to appeal to members to donate some of the windfall gains to the Federation to contribute to a contingency reserve that would be used, among other things to fight new environmental constraints “being imposed on certain classes of land” which, as a result “must lose some of its capital value”.

Members who were being “spared Sporting Rates” were invited to donate one third of their first year’s savings to the Federation. By June 1995, over £54,000 had been donated. It is not known if further appeals were launched.

Therefore, as far as the impact of the exemption is concerned, the windfall gains ended up in landowners pockets and some of it was used to fund lobbying activity.

Conclusions

The challenge for the Stage 1 debate is to address the observations made by RACCE and to clarify what further progress can be made to address them within this Bill. In addition, it is an opportunity to explore what outstanding issues (and there are many) might be addressed in the manifestos of the political parties for the 2016 Holyrood elections when Parliament will have a five year term to push ahead with further reform.

NOTES

(1) Schedule 5 Part I 7(2)(a) of the Scotland Act 1998

(2) See Chapter 16 of Mirrlees Report.

Without Action, Farm Evictions will Become Scotland’s Shame

21. October 2015 · 185 comments · Categories: Farming, Land Reform, Land Reform Bill 2015, Land Rights, Legal affairs, Politics

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?”

The SNP and the road to radical land reform

18. October 2015 · 27 comments · Categories: Democracy, Land Reform, Politics

On Thursday evening last week, Channel 4 news broadcast the above 11 minute film on land reform in Scotland. It’s worth a watch. It highlights, among other things, how grassroots members of the SNP are campaigning for a more vigorous approach to land reform.

The film was broadcast on the first day of the SNP conference where I was a speaker at a fringe meeting hosted by the League Against Cruel Sports as one of the co-authors of a report on the intensification of grouse moor management. I was also scheduled to speak at an unofficial fringe meeting on land reform on Friday evening.

I noticed that there was a debate at the conference on a motion which congratulated the Scottish Government on its land reform and community empowerment bills. (1) I had heard that amendments had been submitted to the conference organising committee but that they had not been accepted for debate. I knew that some delegates were frustrated. So, when the security guard was gazing out the window, I sneaked past and into the main hall to listen to the debate. It lasted 42 minutes and if you click on the video above it will play from the beginning at 1:15:25.

I knew something was up when a young man called Nicky Lowden MacCrimmon took to the stage (at 1:25:45) to propose that the motion be remitted back for further consideration. Coming after workable contributions from two Ministers, Aileen McLeod and Marco Biagi, Nicky made it very clear that the grassroots membership were not satisfied with the ambitions of the party leadership. Here’s a flavour of his contribution.

“This motion talks about a road to radical land reform and I don’t think as a party we can say we’re being as radical as we can be, as we should be and as we have the powers to be right now.

I cannot support the motion wholly as I and many other grassroots members of the SNP believe that our vision for land reform is not radical enough and that we’ve not had an opportunity to debate that as a party and think where are we going to go with land reform.”

[Claps from audience]

“Does radical land reform leave 750,000, three-quarters of a million acres of Scotland, in the hands of unaccountable, nameless corporations based in tax havens across the globe? No, it doesn’t and we have the power to change that now.”

[More claps and whoops]

Does radical land reform leave tenant farmers with no right to buy, no security of tenure – farmers who have invested in that land, worked that land for generations, who have kids in the local school, who contribute to local economies being told your tenancy’s up, find somewhere else to live, work, raise a family. No it doesn’t and we have the power to change that now.

[Claps]

At the end of the debate, the delegates voted to remit the motion back by 570 votes to 440.

Nicky had watched the Channel 4 broadcast and later told broadcaster, Lesley Riddoch,

“Seeing Andrew Stoddart on TV and the stories from Islay just made me think someone has to say something. It was one of those, ‘if not me then who, and if not now, then  when?’ ” moments. I take it very personally when the SNP is characterised as feart or bottling it on radical land reform. I know this isn’t how people feel in my branch or on social media. What I stood up and said was what other members have been saying to me.”

Jen Stout (here) and Calum McLeod (here) both blog about the aftermath of this debate whilst Lesley Riddoch discusses it and the unofficial fringe we held in Aberdeen with tenant farmer Andrew Stoddart in her podcast here.

I will publish a blog on the offshore tax havens issue tomorrow. See here.

NOTE

(1) See motion here.

Land Reform (Scotland) Bill 1

01. August 2015 · 49 comments · Categories: Democracy, Land Reform, Land Reform Bill 2015, Politics

Image: Land Reform Minister, Aileen McLeod at launch of Land Reform Bill with Carluke Development Trust. Photo by Scottish Government.

UPDATE 13 August 2015 My Written Evidence to the Rural Affairs Committee

The Land Reform (Scotland) Bill was published by the Scottish Parliament on 22 June 2014. The Rural Affairs, Environment and Climate Change Committee has issued a call for evidence on the general principles of the Bill at its Stage 1 scrutiny in Parliament. The call for evidence closes at 1700hrs on Friday 14 August 2015.

I have prepared a Briefing on the Bill designed to provide a non-exhaustive analysis and to help those wishing to submit evidence.

The Bill forms part of a much wider programme of land reform. Other ongoing work by government includes reform to succession law, council tax, private rented housing, land registration and compulsory purchase law. The Bill should thus be seen as part of a wider programme and not the sum total of land reform measures. It should also be stressed that, as the first two parts of the Bill make clear, land reform is a process that will necessarily not be concluded by the end of this Parliament. Indeed it will probably take a generation before Scotland’s land governance is set on anything like a modern footing.

The Bill itself contains welcome measures and these are analysed in the briefing. The most worrying aspect of the Bill as it stands is the abandonment of proposals made in the December 2014 Consultation to bar companies in offshore tax havens from holding title to land and property in Scotland. This would have been a progressive move and one in which Scotland could have been taking the lead in a UK context. Instead, the Bill proposes a meaningless right to request information.

Last month, Private Eye revealed that over 750,000 acres of land in Scotland – an area larger than Ayrshire – was held in tax havens. It applauded Nicola Sturgeon for taking a lead in tackling the problem. Their enthusiasm was premature.

Prime Minister David Cameron has announced plans to publish details of offshore corporate ownership in the English and Welsh Land Registry and pressure from NGOs like Transparency International to clamp down on the use of offshore shell companies is proving effective in westminster. The Scottish Government, however, now finds itself being outflanked by the Tories in efforts to crack down on secrecy and tax evasion. The Scottish Parliament has an important role in scrutinising exactly why this has happened.

Other parts of the Bill are broadly welcome though important matters remain to be debated further as the Bill proceeds through Parliament.