Land reform in a Net Zero Nation

12. July 2022 · 12 comments · Categories: Environment, Land Reform, Land Rights, Land Use, Uncategorized

Introduction

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

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

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

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

So, how to respond to this consultation?

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

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

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

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

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

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

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

These recommendations were for large landholdings,

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

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

As SLC said in its 2021 paper,

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

and

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

The Proposals

The proposals seek views on the following questions,

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

The consultation also proposes,

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

Commentary on the Proposals

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

Meanwhile here are some initial thoughts and questions.

Will these reforms deliver?

There are two key issues here.

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

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

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

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

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

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

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

What are large-scale holdings? (Part 4)

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

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

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

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

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

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

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

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

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

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

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

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

Strengthening the Land Rights & Responsibilities Statement (Part 5)

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

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

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

Compulsory Land Management Plans (Part 6)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Conditions on Receipt of Public Funding (Part 8)

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

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

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

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

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

Land Use Tenancy (Part 9)

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

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

Small Landholdings (Part 10)

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

Transparency (Part 11)

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

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

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

Other land related reforms (Part 12)

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

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

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

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

Some Final Thoughts (for now)

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

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

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

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

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

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

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

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

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

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

NOTES

Details of the consultation can be found here.

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

Committee on the Scottish Government Handling of Harassment Complaints

23. March 2021 · Write a comment · Categories: Uncategorized

The Report of the Committee on the Scottish Government Handling of Harassment Complaints has been published and can be downloaded here.

PREAMBLE

In early December 2019, I joined the Committee as a substitute when my colleague, Alison Johnstone MSP had to leave the Committee for health reasons. Later in December I resigned from the Scottish Green Party and have sat as an Independent MSP.

I have undertaken my Committee work with impartiality and have worked hard to discharge the duties placed upon the Committee by Parliament, namely to conduct an Inquiry with a remit:-

to consider and report on the actions of the First Minister, Scottish Government officials and special advisers in dealing with complaints about Alex Salmond, former First Minister, considered under the Scottish Government’s “Handling of harassment complaints involving current or former ministers” procedure and actions in relation to the Scottish Ministerial Code

The Inquiry was in four phases – development of the harassment complaints procedure, handling of complaints, the Judicial Review and actions of the First Minister in relation to the Ministerial Code.

This has been a difficult inquiry into a series of high profile and sensitive issues of sexual harassment in the workplace and involving Scotland’s two most recent First Ministers.

The Inquiry has been carried out in an increasingly fractious and toxic political environment where claim and counter-claim have become weaponised in an ugly debate on social media and more widely.

The Committee has, in the circumstances, in the face of serious impediments to its work and in a very tight final timescale managed to produce a report which will, I hope, lead to a far better response to the serious mater of sexual harassment in the workplace.

FINDINGS

This whole sorry tale arises because the former First Minister, Mr Salmond behaved inappropriately towards female civil servants.

There was an organisational culture of inappropriate behaviour by Mr Salmond and complicity across a number of fronts in terms of people not challenging that behaviour.

The Scottish Government failed in its duty of care towards civil servants, in particular, some female civil servants during the period when Mr Salmond was First Minister. Safeguarding appears to have been wholly absent.

Very senior civil servants and Special Advisers knew about this and did nothing. Instead, they were complicit in covering up such behaviour.

The First Minister instructed a review of sexual harassment complaints in October 2017 and is to be commended for doing so. The new procedure included provision for retrospective complaints against former Ministers and it was right to do so.

Two complainers came forward with formal complaints and were right to do so. They trusted the procedure to deliver a just outcome for their complaints.

The procedure was developed in a short space of time with insufficient stress testing. The Permanent Secretary led the work and went on to have the key decision making role in the procedure as well as a number of contacts with the complainers.

The Scottish Government failed to identify the issue of prior contact by the Investigating Officer as a potential procedural failing never mind the subject of a potential legal challenge.

The Scottish Government breached their duty of care to the complainers by not ensuring the confidentiality of the final decision report which was leaked to the Daily Record newspaper in a shocking violation of the complainers rights to privacy. No-one has been held accountable.

In response to the Judicial Review, the Scottish Government failed in its duty of candour to the court in not identifying and disclosing key evidence from the Investigation Officer until so late in the process that the case become unstateable and had to be conceded.

At an early stage the Scottish Government was responsible for a serious, substantial and entirely avoidable situation that should never have arisen in a well run organisation.

In responding to this inquiry, the Scottish Government frustrated the inquiry by its failure to provide timeous documentary evidence and refusing to disclose legal advice and waive legal privilege until 6pm on the day before the appearance of there First Minister.

As the First Minister recused herself from Scottish Government dealings with the Committee, this failing is the responsibility of the Deputy First Minister, John Swinney.

In relation to the First Ministers actions in relation to the Ministerial Code, she has been cleared of any breaches by James Hamilton QC and the Committee never sought to make any determinations as to such breaches.

The Committee, however finds it hard to believe that the First Minister knew of no concerns about inappropriate behaviour by Mr Salmond prior to November 2017. Awareness of his behaviour was an open secret in Government and was known about at the highest levels of the civil service. The First Minister did not hear of any concerns because the truth was being intentionally concealed from her.

All senior members of Government including the then deputy First Minister have a duty to ensure the welfare of staff and to ensure no-one is allowed to behave with impunity. That means asking discrete but awkward questions at the right time.

Fundamental errors were made by a number of parties throughout the whole process from October 2017.

The First Minister misled the Committee by stating in her written evidence that she would not seek to intervene in the process. On the contrary she did offer to intervene. In the event, of course, she did not in fact intervene and that was the right decision.

The First Minister bears some responsibility for failing two women and many others who did not come forward. Mr Salmond and Mr Salmond alone, however, is responsible for his inappropriate behaviour.

As Head of Government, the First Minister responded appropriately in the wake of #metoo albeit long after senior members of ScotGov knew of Mr Salmond’s harassment of civil servants.

The First Minister should be perfectly capable of accepting the conclusions of the Committee’s report and committing to work with others to develop a robust and fair system for dealing with complaints that can be trusted by staff in the workplace.

Some MSPs and their parties should reflect on the extent to which they weaponised for political advantage an inquiry into how two women were failed over serious complaints.

Some MSPs and other in party machines should reflect on their role in breaching the MSP Code of Conduct, leaking confidential material and betraying the trust of the two women whose testimony to the Committee in private was meant to stay private.

It is time to work together to eliminate sexual harassment and sexual violence against women and men.

Andy Wightman for Highlands and Islands MSP

27. February 2021 · 21 comments · Categories: Uncategorized

I will be putting my name forward as an Independent candidate in the 2021 Scottish Parliament election for the Highlands and Islands Region. From the end of March, my home will be in Lochaber.

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 led opposition to the latest regulations that 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.

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.

In the coming days I will launch a crowdfunder and later in March I will formally launch my campaign.

It is very hard to be elected as an Independent candidate. I will need 12-15,000 votes across the Highlands and Islands.

I will be relying on a grassroots campaign of supporters who are able to mobilise voters by word of mouth and social media.

If you support my candidacy, please tell your friends and family. Very soon I will be offering you ways to get involved in the campaign.

Meanwhile, thank you for your support.

Statement on the publication of evidence to the SGHHC Committee

09. February 2021 · Write a comment · Categories: Uncategorized

Below is a statement from the Scottish Parliament in response to the votes this morning in the Committee on the Scottish Government Handling of Harassment Complaints on the publication of written evidence from Alex Salmond on the Ministerial Code.

I agree with this statement.

BEGINS
The default position for the Committee has always been that it would publish as much information as possible. However, the work of this Committee must respect relevant legal obligations, including court orders made in relation to a judicial review and a criminal trial, which are aimed at protecting the anonymity of complainers. Whilst the issue of publication is ultimately a matter for the SPCB, the majority of the Committee is in agreement that it cannot publish given the legal constraints on it.

The Committee’s statement on the handling of information and evidence has been made clear to all witnesses giving evidence to the Committee, and this was highlighted to Mr Salmond when the Committee first wrote asking him to contribute to its inquiry on 7 July 2020 and again in October and November 2020.

The Committee would have been able to publish Mr Salmond’s submission, in line with the Committee’s statement, as it has his other submissions to the Committee. However, publication of the full submission in a manner that is readily accessible has made it impossible for the Committee to make the redactions needed to meet its legal obligations. This is clearly regrettable and something outwith the Committee’s control, but the Committee will not breach its data protection obligations or the court orders. This reasoning has been made clear to Mr Salmond on numerous occasions.

The Committee has corresponded extensively with Mr Salmond and his legal representatives since July (when he was first asked to make this submission by early August). In addition to the issues around Mr Salmond’s submission, there are a number of conditions to his appearance that the Committee simply could never meet, including waiving threat of all legal prosecution. It is simply not within the Committee’s gift to make such a commitment.

The Committee will use the detailed submissions he had already made to the Committee, all of which have been published by Parliament in line with the Committee’s statement on written evidence, as well as the over 130 pages of documentation from his solicitor, to help complete its vital work. All of this can be used to question the First Minister and can be published in the Committee’s report.

Extract of decisions

Murdo Fraser proposed that the Committee agrees to publish Mr Salmond’s submission on the Ministerial Code phase of the inquiry with appropriate redactions.

The proposal was disagreed to by division: For 4 (Jackie Baillie, Alex Cole-Hamilton, Murdo Fraser, Margaret Mitchell), Against 5 (Alasdair Allan, Tom Arthur, Linda Fabiani, Maureen Watt, Andy Wightman), Abstentions 0.

Maureen Watt proposed that the Committee agrees that, given the legal constraints on it, it is not able to publish any version of Mr Salmond’s 31 December 2020 submission on the Ministerial Code.

The proposal was agreed to by division: For 5 (Alasdair Allan, Tom Arthur, Linda Fabiani, Maureen Watt, Andy Wightman), Against 4 (Jackie Baillie, Alex Cole-Hamilton, Murdo Fraser, Margaret Mitchell), Abstentions 0.

Margaret Mitchell proposed that given the committee cannot reach a unanimous position on the publication of Mr Salmond’s submission it should now go to the SPCB for decision.

Andy Wightman asked to record in voting that he is a member of the Scottish Parliamentary Corporate Body.
ENDS

Resignation from the Scottish Green Party

18. December 2020 · 32 comments · Categories: Uncategorized

I have resigned from the Scottish Green Party. My resignation letter can be read here and is outlined below.

Lorna Slater & Patrick Harvie MSP
Co-Leaders
Scottish Green Party
19b Graham Street
EDINBURGH
EH6 5QN

cc. Membership Secretary 18 December 2020

Dear Patrick and Lorna,

I am writing to tender my resignation from the Scottish Green Party with effect from Friday 18 December 2020.

For some time now, since I was admonished for attending a public meeting at Edinburgh University in June 2019, I have been saddened by the intolerance shown by some party members to an open and mature dialogue about the tensions and conflicts around questions of sex and gender in the context of transgender rights and women’s rights.

On Thursday last week it was made clear to me that if (as I was minded to), I voted for amendment 28 to the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, I would face complaints and disciplinary action leading to possible suspension, deselection or expulsion. On the evidence of the reaction to my attendance at the June 2019 public meeting, I took this prospect seriously.

I understand that the Scottish Green Party has a strong commitment to equalities and trans rights. However, some of the language, approaches and postures of the party and its spokespeople have been provocative, alienating and confrontational for many women and men.

It has become evident to me that the sort of open-minded public engagement I would like to see take place on this topic is incompatible with a party that has become very censorious of any deviation from an agreed line.

Put simply, I cannot operate in this kind of environment and Thursday’s vote and the discussions that took place around it were the final confirmation of that.

I remain committed to Green politics and will endeavour to work constructively with the Green Group in Parliament until dissolution. I also have important work to do on tenants’ rights, the climate crisis, land reform, local democracy and taking forward my European Charter of Local Self-Government (Incorporation) (Scotland) Bill.

I wish you well in the May 2021 Elections.

Best wishes

Andy

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.

The Missing Slide

16. May 2014 · 70 comments · Categories: Finance & Money, Land Reform, Media, Uncategorized, Who Owns Scotland

The image above (click for larger version) shows the missing slide from the presentation on the Economic Contribution of Estates referred to in the Means and Medians blog from last week. (1) It is important because it shows the significant difference between the mean and the median. (2)

In particular it is important because the researchers who wrote the report stressed that in such a skewed sample, the mean should not be used.

It should, however, be stressed that the overall average values are very heavily influenced by the large and very large estates and the median figures for average income and investment are significantly lower.” (4.2.2 pg. 39)

In presenting the findings, the lead researcher, Rob Hindle stated that,

”the mean average [is] significantly skewed by the bigger numbers at one end of the spectrum – so don’t do it – it’s not helpful. You need to start looking for the middle point but be aware even so that the middle point ..there are very big differences between the numbers at one end and the numbers at the other end so the middle point is again to be treated with caution”

The means and medians are not published in the report for these very reasons. However, SLE issued a press release on 16 April entitled “New Research Reveals Significant Annual investment on Tenanted Land and Crofts by Estates” with an opening line that read,

“Rural estate owners are investing an average of £69,000 per year on their tenanted farms and crofts“, new research has revealed.

The release went on to state that average income amounted to £101,422.

The more accurate figures are the medians and, as the graph shows (second set of columns from the left), the difference is startling.

Median revenue is around £22,000 (22% of the mean) and expenditure about £10,000 (14% of the mean) compared with £101,422 mean revenue and £69,145 mean expenditure

The differences for other categories – notably heritage and leisure are even more pronounced.

NOTES

(1) I should emphasise that the report is an excellent report and I plan to blog at greater length on its findings.

(2) The mean of a sample is the total of all the values divided by the number of values. The median is the middle value in a distribution of values. So, for example in a town with 100 houses where 99 were worth £100 each and one was worth £1 million, the mean would be £10,099 (1,009,900 divided by 100). But describing the average house price in town as being £10,999 is obviously misleading. In a skewed distribution, the median is more useful and in this case is £100 (the middle value when all values are lined up from smallest to largest) – in this case a far better representation of the average or typical price of a house.

Harassment, disruption & malice at Ledgowan

13. October 2013 · 41 comments · Categories: Environment, Land Rights, Land Use, Ledgowan, Scotland's hills, Uncategorized

The story so far…….

Dr Kenneth Brown wrote a guest blog (here) discussing the harassment he faced going about his lawful business at Ledgowan Estate, Achnasheen, Ross-shire. This led to quite a few comments and emails recounting similar such incidents at Ledgowan over the past few year since Andrew Simpson took over ownership of the estate.

This in turn led to the revelation (to me) of the 18 km track that has been crudely bulldozed across the hills under Class 18 Permitted Development Rights whereby developments for agricultural use are exempted from the need for planning consent. Despite recommendations from Scottish Government officials in 2012 that such tracks be subject to normal planning rules, Derek Mackay (Minister for Local Government & Planning) under pressure from farming, landowning and forestry interests, refused.

Since publishing these blogs, more information and insight has come to light and I thank all those who have been in touch.

Agricultural Use

It is now confirmed that the road was built for agricultural activities. A number of hill farmers have been in touch with me. None can see any conceivable use for a road of this length, routing, construction or quality in this particular place. So what is it for? Simpson’s own website implies it is for trout and salmon fishing and wildlife safaris.

A previous application for a windfarm was refused on landscape grounds. A second application for a smaller development of two turbines was submitted and then withdrawn. Andrew Simpson currently has a live application for one 50kw turbine (Ref 12/03182/FUL). How convenient it is that there is already a road built to service it. How convenient also that any opposition to an application for a bigger scheme on landscape grounds is now much weakened by the fact that the road has now inflicted significant damage to the landscape.

Interestingly, SNH concede this fact in their comments in the current application where they point out that “the proposed turbine is located on terrace 2 within the SSSI. We agree that a turbine located here, with no need for additional tracks minimises damage to the main features of the site.” This remember is a track that has smashed right through Terrace 1 and 2.

Pollution

The unauthorised construction of this track raises questions about pollution. A prominent expert in such matters has highlighted to me the possible issues with drainage, run-off and sediment loading. The road has been hastily constructed in an inexpert manner across numerous watercourses. It is clear that substantial works have been carried out on the loch shore. Have these works ever been approved by the Scottish Environmental Protection Agency (SEPA)?

UPDATE 25 OCTOBER 2013

I wrote to SEPA on 14 October 2013 and asked them,

“Could you provide me please with any information that SEPA holds in relation to activities on Ledgowan Estate, Achnasheen.In particular I am interested in the road that has been constructed and, for example, whether the estate has a CAR licence under the Water Environment (Controlled Activities) Regulations 2011 for the water crossings and works by Loch a Chroisg.”

SEPA replied today and told me that they held no information in relation to the track, pointing out that if the watercourse crossings had been “done in accordance with General Binding Rule 6, then SEPA would not need to be involved”. We do not know, of course, whether such rules were followed.

More interestingly, in relation to the works on the shore of Loch a Chroisg, SEPA refused to release the relevant information.

“Please note that SEPA is aware of engineering activities in Loch a Chroisg undertaken by Ledgowan Estate in June 2011 which resulted in the alteration of the watercourse. The work was carried out without a licence. SEPA holds information relating to this however the information has been withheld from release at this time under Regulation 10(5)(b) of EIR which states:

’10(5) A Scottish public authority may refuse to make environmental information available to the extent that its disclosure would, or would be likely to, prejudice substantially … (b) the course of justice, the ability of a person to receive a fair trial or the ability of any public authority to conduct an inquiry of a criminal or disciplinary nature.’

The Public Interest Test was carried out in relation to the information to be withheld under regulation 10(5)(b). To disclose evidence in a case prior to it being considered by the Procurator Fiscal, thus putting it in the public domain means the accused may not receive a fair trial.”

It therefore seems clear than an alleged offence has been committed under Section 44 of the Regulations and that criminal proceedings may follow.

The full reply from SEPA is here.

I have written to SEPA inviting them to investigate whether or not the 2011 Regulations have been followed in the construction of the new track.

UPDATE 29 OCTOBER 2013
SEPA has responded:-

SEPA will arrange to visit the site and look into your complaint. Once we have done so, we will get back to you and let you know the outcome of our findings.

It appears that the new landowner takes quite a hostile approach to the local community as is evident from this Community Council minute of February 2012 regarding a dispute over pedestrian access along a now disused public road.

“The Chairman read out a letter from Helen Christie raising issues about access to Ledgowan Estate, threatening behaviour, construction of hill roads and the access across the bridge. Dave Mackenzie (an employee of Ledgowan Estate) stated he hadn’t stopped anyone and that the estate will abide by the law.”

Highland Council has now issued a Traffic Regulation Order permitting pedestrian and cycle traffic to continue to use this short stretch of the former A890 (council paper and minute).

During 2011, there was considerable disquiet among residents of Achnasheen about the construction of the new track and numerous complaints were made to Highland Council. On 5 August 2011, Dave MacKenzie submitted a Freedom of Information request to Highland Council asking for details of complaints that the Council had received. The Council complied with the request but redacted the personal details of those who had made the complaints. Mr MacKenzie asked for a review of the decision and subsequently appealed to the Scottish Information Commissioner who, in her decision, stated that,

“Mr MacKenzie is an employee of the owner of the Ledgowan Estate. He has explained that his request was motivated by the harassment and disruption to the progress of work that he was feeling as a result of the Council’s response to complaints, which he considered to be made by individuals or organisations that appeared to be either ill-informed or motivated by malice. He explained that he wanted to know the identities of those making complaints in order to inform them of the reason why work was being carried out.”

Creepy.

As is clear from Mr MacKenzie’s attendance at the Community Council meeting, he had (and continues to have) ample opportunity to “inform” people of “the reason why work was being carried out“. As for the harassment, disruption and malice which he refers to, let’s note one incident that took place just before Christmas 2011.

A number of residents noticed that their oil-fired heating systems stopped working. Upon inspection, an engineer found that holes had been drilled in their oil tanks, with the the contents seeping into the ground all over their gardens. The police investigated these criminal acts but found insufficient evidence to take further action.

In another incident, a person closely connected with the estate was caught digging a badger sett. Again the police were called but insufficient evidence was available and the perpetrators claimed that they had been looking for foxes.

Earlier this year a black-throated diver was found dead having been “shot by a high velocity projectile”.

The above incidents may have nothing to do with the estate. They may (although it appears unlikely) have entirely innocent explanations.

What’s going on?