Monday 20 January 2014
SCOTTISH GOVERNMENT
Enterprise and Environment

Tavish Scott (Shetland Islands) (Scottish Liberal Democrats): To ask the Scottish Government what the definition of “fairer” is in the Minister for Environment and Climate Change’s comment to BBC Scotland that “There should be a fairer distribution of land, communities should have access to land to fulfil their aspirations.” (S4W-19122)

Paul Wheelhouse:

The Scottish Government recognises that the current distribution of land is highly concentrated, given that reportedly just 432 landowners own 50% of the privately owned land in Scotland and that this concentration of ownership may lead to constraints upon fair access to land to enable communities and individuals to achieve their full potential.

The Scottish Government cannot pre-empt the outcome of the final report from the independent Land Reform Review Group, or the outcome of the ministerial-led review of Agricultural Holdings Legislation which are both due to report back later this year. However, our vision is for a fairer, or wider and more equitable, distribution of land in Scotland where communities and individuals have access to land and, where such is lacking, that there is the necessary diversity of tenure. The Scottish Government believe that Scotland needs to ensure communities are empowered to consider how land in their community is used, and that the system allows communities to fulfil their aspirations. This government also believes that land should be available to provide opportunities for new entrants to farming and forestry. Scotland is on a journey to delivering land reform and to enable improvements to engaging with communities on optimising land use. This government believes that the nation’s land should be used to benefit the people and environment of Scotland to deliver sustainable economic growth with due regard for impacts on the environment and upon the health and wellbeing of communities across Scotland.

To fulfil Scotland’s potential, this government believes we need to build a society with greater diversity of land ownership, where communities have access to land to fulfil their aspirations and needs and to support business and employment in rural areas, including in traditional rural sectors, and for provision of community infrastructure, such as housing and green space. This includes community land buy-outs to achieve greater distribution of land to communities, sustainable development and realise increased economic vitality and employment. There are currently just under 500,000 acres of land under community ownership and the Scottish Government is committed to a target of achieving 1 million acres of land in community ownership by 2020. The Community Empowerment Bill will streamline and extend the existing community right to buy contributing to this target to ensure communities have access to land needed for housing, environmental and employment opportunities and the Scottish Government, as one of Scotland’s largest landowners, is active in exploring opportunities for creation of new community ownership projects through appropriate transfers of ownership from the Scottish Government estate.

Image: Black Law Commonty

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 spentspent 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.

NOTES

(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.

In the first session of the Scottish Parliament between 1999 and 2003, a total of 12 Acts were passed in relation to land reform – 20% of the 61 Acts passed in the first four years of devolution. There was much debate about many topics and the media took a great interest. The film above was made by the Australian Broadcasting Corporation (in 2002 as far as I can tell) and is interesting for a number of reasons. It was made by a foreign broadcaster so shines a fresh light on the debate. It contains claims and assertions as to the impact of land reform legislation that can now be examined in the light of what has happened in the intervening ten years.

But it is also very interesting because a couple of the key contributors are speaking from the Strath of Kildonan in Sutherland. Earlier tonight a special commemorative service was held in Kildonan Church as part of the two-week Translocation Festival which is being held on the bicentenary of the eviction and clearance of the population of the Strath in 1813. The BBC reports that exactly 200 years ago today, 96 people left Helmsdale on a ship bound for Canada after being forced from their homes in the Strath of Kildonan. (1)

Now many people take the view that the Highland Clearances should form no part of any debate about who owns Scotland today. At one level this is a perfectly reasonable point of view. But at another it is profoundly misguided. Places like the Strath of Kildonan cannot be understood today without understanding the circumstances and events that shaped them. It is also instructive to compare Scotland at this time with other countries like Norway which also experienced mass emigration. The different is that Norway, unlike Scotland was not owned by vast estates and occupied by a tenantry with no legal rights. It was a country which, one year after the Kildonan clearances adopted a constitution that forbade the creation of any new nobles and empowered the peasantry giving Norway one of the most democratic systems of government in Europe. Seven years later, the aristocracy was abolished.

So understanding history matters which is why it is very educational to hear the likes of Sir John Nutting, owner of the 23,000 acre Achentoul Estate opine on how and why the private ownership of his estate is an essential ingredient of the Sutherland economy and why he doesn’t live there because “I have to earn my bread in the south” (at 3:30).

Achentoul Estate (from www.whoownsscotland.org.uk)

This is of even greater interest since were any of the crofting tenants that still occupy the coastal areas of Sutherland to make a similar argument and be absentee crofters (by living more than 32 km from their croft), they would have to apply for consent to be absent from the Crofting Commission and, were this to be refused, could be subject to legal proceedings that could see their tenancy terminated – a situation highlighted recently by this crofter who claims he is the victim of a new Highland Clearances.

But Sir John Nutting can rest easy. The complex legal framework of crofting law is designed for those whose property interests are limited to a tenancy of a few acres of bog and rock. For a man in his position as the owner of 23,000 acres of land cleared of its human population 200 years ago, there are no such restrictions or conditions.

Which is why it is well worth watching the 15 minute film which includes local crofter Sandy Murray, a descendant of crofters cleared from Sir John’s Achentoul Estate in the Strath of Kildonan argue eloquently why, in his view land reform is a rather good idea.

It is also why it is worth posing questions as to whether landowners like Sir John Nutting have any place in a modern Scotland. His views on the current debate on land reform are available here and make interesting reading.

Suisgill Estate (from www.whoownsscotland.org.uk)

Meanwhile, if you would like to purchase the 16,523 acres of Suisgill Estate in the Strath of Kildonan neighbouring Sir John to the south (and from where many of the tenants were evicted 200 years ago), it is available for sale via Savills at offers over £7 million (sales brochure here – 3.9Mb).

The sales brochure reports that “The Strath of Kildonan has supported an active population since the Stone Age….Great changes in the way of life of the people in Kildonan took place in the early 1800s when Cheviot sheep were introduced into the Strath.”

Great changes indeed.

Don’t worry, no-body will ask you any questions. You don’t have to submit yourself for the approval of the Landowning Commission, you can even conceal your identity in Grand Cayman or some such place and you certainly don’t have to live in the Strath of Kildonan.

I am informed that Sir John will be at the famous Lairg sheep sales tomorrow. If you see him, say hi from me.

PS – Oh, and the film is also interesting because it features David Cotton. He claims that the threat of land reform back in 2002 caused two ghillies to emigrate to Canada. He and his colleagues also threatened me with legal proceedings in 2002 for a statement I made to a Scottish Parliament Committee. I can picture the letter. It is in a plastic wallet with a Recorded Delivery stamp on it. I must find it.

(1) Professor James Hunter, who is currently writing a book about the Sutherland Clearances contacted me to say that, in fact, “they left in June and sailed from the Bay of Stomness”

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

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

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

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

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

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

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

The Government has therefore established a Land Reform Review Group.

The Group will identify how land reform will:

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

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

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

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

Yesterday that remit was ripped up.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(2) Interim Report page 14

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

The Land Reform Review Group (LRRG) is due to publish its first report in the next few weeks. The Group, set up as an independent policy review group by the Scottish Government in October 2012 has been given the task of proposing innovative and radical proposals for land reform. Over 500 individuals and organisations have submitted evidence to the group.

What can we expect?

Think of the land reform debate as like opposite banks of a river. On the south side people are working together to try and make this system work better. There is co-operation and understanding and though nothing fundamentally changes, some modest progress is made. Folk are polite to each other and nothing much happens to rock any boats.

On the north bank stand those who see the entire system by which land is held and governed in Scotland as fundamentally flawed. These people are working to undermine landed hegemony and reform the way in which landed power defined, derived, distributed and exercised. Some of these people may, on occasions, cross the bridge to the south bank to participate in a bit of consensual reform but most of the time they are on the north bank because that is where they need to be. Time spent on the other side of the river is ultimately futile and a waste of energy and resources if the desired outcome is radical land reform.

So where do the Land Reform Review Group stand? Well, for a start there is no group. There is a Chair and two vice-chairs and no members. A group of three is a weak formation because it is hugely dependent on personal relationships. It is difficult to conduct robust debate within a group of three. A group of eight, on the other hand, allows for frank exchanges of views and a stronger critical approach. The current personnel are Dr Alison Elliot (Chair) and Vice-Chairs Dr Sarah Skerrat from the Scottish Agricultural College and Ian Cooke, Director of the Development Trusts Association Scotland. Recently, the only one of the three with a background and understanding of land reform, Professor James Hunter, resigned for personal reasons. The group is advised by 13 advisers.

The LRRG looks distinctly like a group of south-bankers.

Meanwhile another group is getting organised.

Scottish Land and Estates (SLE) is the representative body of 2500 landowners in Scotland and is making strenuous efforts to ensure that land reform goes nowhere. It has invited Dr Elliot to give the keynote address to its AGM on 21 May 2013. Last year, the keynote speaker was the First Minister, Alex Salmond. Rather like Mr Salmond, whose speech was one of a committed south-banker and which gave Scottish Land & Estates a public relations coup, Dr Elliot’s speech will be closely observed by a growing number of people in Scotland who are beginning to worry about the direction in which the LRRG is heading. Mr Salmond, it should be noted, will be giving the keynote speech to the AGM of Community Land Scotland on 7-8 June on Skye. Like his speech last year, this is also keenly anticipated. By the 8th of June, therefore, we will have a fair idea of how the contours of the land reform debate are laid out and what side of the river folk are on.

Scottish Land and Estates has also been raising cash. During 2012, as revealed in the accounts to be presented to its forthcoming AGM, it raised over £55,000 for a land reform fighting fund and plans to raise more during 2013. A reception is being held in the RAF Club in Piccadilly on 29 May (see invite above) during which no doubt the large number of London-based landowners will be pressed to contribute funds to protect their vested interests north of the border.

Scottish Land and Estates also has wider connections to the work of the LRRG. Luke Borwick, its Chairman is a Board member of SRUC, the Scottish Government funded College that employs one of the Vice Chairs of the LRRG. The Chair of SRUC is one-time Conservative Scottish Office Minister and SLE member, Jamie Lindsay. Meanwhile one of the member of the SLE’s own Land Reform Working Group (Andrew Bruce Wooton) is also an adviser to the LRRG. Details of the SLE’s working group can be found in the introduction to its full submission to the LRRG available here.

The instincts and direction of the LRRG will be judged by its interim report and the extent to which it stakes out territory on the south or the north bank of the river. At the moment it seems like a lot of activity is taking place on the south-bank and those who should be working on the north lack the resources and determination of groups such as SLE who are busy wooing and embracing the south-bankers.

We await further developments with interest.

Following last week’s trip north by Paul Wheelhouse, this week it is the turn of Humza Yousaf, the Minister for External Affairs and International Development in the Scottish Government. He will be attending a seminar in Helmsdale as part of Oxfam’s Enough Food for Everyone campaign. Here is his pre-drafted speech. In a short piece for Bella Caledonia I outlined my own thoughts about the parallels between the Highland Clearances of 200 years ago in Sutherland and land grabs around the world today.

As Mr Yousaf heads north, he can tune into the BBC Radio Scotland news bulletin for the Highlands and Islands where he can listen to the Chairman of Scottish Land and Estates, Luke Borthwick, argue that “there has been a tendancy in the past to look back at the historic events that have happened particularly up in the Highlands and I think people need to realise we need to move forward” The clip is taken from the PR video released by Scottish Land and Estates last week. There is also a clip from South Ayrshire Stalking’s Chris Dalton whose lease for the stalking rights on Raasay was been the subject of much controversy last week. The clip is taken from a longer interview conducted by Radio Scotland’s Out of Doors programme (see previous blog).

Listen below.

We are Scotland’s 2500 landowners. We own the land (well 75% of Scotland).

Our response to the Land Reform Review Group is that we don’t want land reform and we don’t need it. This is our land and we want to keep it that way. Many countries such as France, Finland, Ireland and Sweden have implemented programmes of land reform and the sky didn’t fall in.

A quite amazing PR video.

Scottish Land and Estates full submission to Land Reform Review Group.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) Amendment 8 to Regulation recital 15

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

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

(4) Speech to NFUS AGM 12 February 2013

The Guardian are running a series of investigative articles on the use of offshore tax havens to acquire land & property in London. It was timely, therefore to see Steven Vaas’s article in the Herald on Monday which revealed that seven parcels of land at Granton Harbour and Western Harbour – part of the Waterfront development – in Edinburgh have been sold to a company called Sapphire Land Ltd., PO Box 957, Offshore Incorporations Centre, Road Town, Tortola, BRITiSH VIRGIN ISLANDS.

One parcel alone, (pictured below) was bought by FM Homes Ltd in January 2008 for £3,075,000 and sold to Sapphire for £327,916 in August 2012.

This sale of land adds to a growing list of land and property in Edinburgh and across Scotland including much of Charlotte Square which is now owned by companies operating out of offshore tax havens.

I argued during the passage of the Land Registration (Scotland) Bill that we need to make sure that there is transparency in landownership. The simple legal answer is that there is. After all, I have just consulted the Registers of Scotland and note that this land is owned by Sapphire Land Ltd. – what more do I need to know? But this analysis goes to the heart of the debate over the Bill which was regarded as merely a legalistic reform by the Scottish Government and arguments from myself and others that it should be seen as part of a wider public land information system were rejected by Ministers.

In my 4th blog on the Bill (click on “Land Registration” category on right side for all of them), I cited the growing evidence that registering land in tax havens frustrates the administration of the criminal law, the collection of taxes, and good governance by concealing the true beneficial owners of land. Specifically, my proposal for transparency on offshore landownership was rejected (despite having been called for by the SNP when in opposition). My written evidence is here.

There are now over 750,000 acres of land in Scotland owned by companies in offshore tax havens. We know nothing about who is behind these companies and they are probably avoiding a lot of tax. Why, oh why does the Scottish Parliament not feel able to do the simple things it can to make Scotland a fairer and more equitable society? What possible public benefit can there be in allowing the public registration of land in the name of companies located in tax havens?

Anyone?

Scottish Land & Estates members survey.

 

The Scottish Government’s Land Reform Review Group was established in July 2012 and twelve advisers were appointed in October. It has issued a call for evidence to be submitted to it by 11 January 2013.

The remit of the Group is to identify how land reform will:

  • Enable more people in rural and urban Scotland to have a stake in the ownership, governance, management and use of land, which will lead to a greater diversity of land ownership, and ownership types, in Scotland;
  • Assist with the acquisition and management of land (and also land assets) by communities, to make stronger, more resilient, and independent communities which have an even greater stake in their development;
  • Generate, support, promote, and deliver new relationships between land, people, economy and environment in Scotland.

The Group’s work has received next to no publicity. No press release was issued with the call for evidence and the only two public meetings, although advertised on the Group’s website, contain no details of venue or time though I understand that they will comprise a meeting of “invited persons” and a public element. According to sources, there are many more meetings. These include:

26 October – Visit to Atholl Estate (the General Manager of the estate is one of the group’s advisers).

7 November – Highlands & Islands Enterprise, Inverness.

12 November – Greenock. Site visits and round table with invited individuals.

20 November – Comrie.

30 November – Moray Estate.

11 December – Tarbert. Round table with invited individuals and public session in the evening.

12 December – Fort William. Round table with invited individuals and public session in the evening.

January – Dumfries. Round table with invited individuals and public session in the evening.

January – Buccleuch Estates.

February – The Gathering, SECC

June 2013 – Community Land Scotland AGM, Skye.

Meanwhile, the vested interests in this debate, those who own land and earn money from advising them have been busy. Scottish Land and Estates (SLE) has issued a call to its members to complete a survey which will be used to “display to the Scottish Government, MSPs and the public, the extent to which our members are playing a vital role in building a prosperous future for rural Scotland.”

Willie Rennie MSP

 

 

 

 

 

SLE is already organising visits by MSPs to landed estates. One of of the Group’s advisers, Andrew Bruce-Wooton, recently hosted Murdo Fraser MSP and Willie Rennie MSP on tours of Atholl Estate (pictured above).

And Scotland’s lawyers, ever keen to provide advice and support have been active too. Turcan Connel has produced a Briefing Note entitled “Land Reform Review – Should Landowners be Alarmed?” (they conclude that “the answer is probably in the affirmative“). Anderson Strathern, in a similar briefing conclude that,

We think it is most important that those with an interest in land reform, from whatever angle and especially, perhaps, those who have interests to protect, make submissions at Phase 1. There is no doubt that, in the past, The Scottish Government has been impressed by the force of the numbers of submissions for and against particular points and there is no reason to think that the LRRG will not take the same view.” (my emphasis).

It is clear that the Group will not be short of evidence from vested interests. Those with an interest in radical land reform, therefore, are advised to submit evidence by 11 January 2013.