Land Matters

Dear Academy Award Nominee

24. March 2022 · 16 comments · Categories: Environment, Land Registration, Legal affairs, Media, Who Owns Scotland

Dear Oscar Nominee,

Congratulations on your nomination for an Academy Awards 2022. According to media reports, I understand that as a nominee you have received a gift pack that contains, among other things, a purported gift of a plot of land (perhaps just a square foot) in Scotland from a company called Highland Titles and the right to be styled Lord or Lady of Glencoe.

You may be wondering what this is all about. Let me explain.

First and foremost, you are not the owner of any land in Scotland despite what this company might have led you to believe. See Section 22 of the Land Registration (Scotland) Act 2012. (1)

You have also not been given any right to style yourself Lord or Lady of Glencoe. Highland Titles has no authority or power to bestow such a title on you.

You have a piece of paper (several probably) with impressive sounding claims and illustrations. They remain just pieces of paper, however and provide you with nothing more than that.

Highland Titles Ltd. is not a conservation organisation. It owns some land including part of a National Nature Reserve and it plants some trees and puts up some bird boxes. The company’s purpose, however, is to enrich those involved with it. Highland Titles put up in excess of £100,000 for a company it then supported (Wildcat Haven Enterprises CIC) to sue me for defamation claiming £750,000 in damages. I won and in the process learnt quite a bit about Highland Titles business model. Believe me, they appear to be making very substantial sums of money and spending very little of it on any meaningful conservation work.

The plot you purportedly own is not in Glencoe. It is 20 miles away in Duror.

Highland Titles Ltd. is not a Scottish conservation organisation. It is a company based in the secrecy jurisdiction of Guernsey.

The office of Highland Titles in Scotland is located in Lochaber and is part of a larger property owned by Quexus Ltd. a company registered in the British Virgin Islands.

Highland Titles was a registered trademark to another company called Highland Titles Ltd registered in the British Virgin Islands but transferred in 2019 to Highland Titles Ltd. (Guernsey)

Beware that “Lord of Glencoe” and “Lady of Glencoe” were registered trademarks to a company called Highland Titles Ltd. registered in the British Virgin Islands but transferred in 2020 to Highland Titles OU registered in Estonia.

Highland Titles Ltd., being registered in a secrecy jurisdiction and despite owning land in Scotland is not obliged to publish annual reports or accounts and thus its affairs cannot be scrutinised or challenged.

You can read some more about Highland Titles in a blog I published in 2015 (2)

If you wish to help the conservation of Scottish habitats and species there are a range of organisations that would welcome support. The vast majority of them are members of Scottish Environment Link and you can see them all here.

(1) https://www.legislation.gov.uk/asp/2012/5/section/22/enacted
(2) http://www.andywightman.com/archives/4152

Why I Resigned from the Scottish Green Party

07. August 2021 · 86 comments · Categories: Announcements

4500 words – 30 minute read

Introduction

I never intended to write further about my resignation from the Scottish Green Party. When I resigned, I agreed with the Party not to say anything further.

However, I am now aware that there has been some significant misinformation circulated by members and officials of the Party alleging to explain why I resigned.

I have seen emails, Slack channel communications, information from protected Twitter accounts and the Party’s Q&A following my resignation They make wild allegations about my motivations and character. Some of the claims being made are now being circulated and are having a negative impact on my reputation at a time when I am seeking work. I therefore wish to set the record straight.

When I resigned, I reached an agreement with the Party that neither I nor spokespeople for the Party would say anything more (individual members of course are not so constrained). I kept my side of this agreement but others did not.

Immediately prior to my resignation, Patrick Harvie wrote to me saying that my resignation would be a “huge loss to the Party and to Parliament”. Weeks later he was on national TV denouncing me as a transphobe. I managed to prevent that interview from being broadcast but later, during the election campaign, further interviews were given in which false allegations were made about me – a potential criminal offence during an election campaign.

In publishing this blog, it is not my intention to start an argument or to provoke debate. People are perfectly free to disagree with my reasons for leaving but they are not entitled to fabricate them and disseminate lies and smears.

So this blog is for Scottish Green Party members and anyone else who wants to know more. Put simply, I resigned because I couldn’t work in the environment in which I found myself.

So what was it that led me to leave? Some background may be useful.

Background

I have always been a member of the Green movement. At University and afterwards, I was an active campaigner against the modern forestry industry and tied this to arguments for greater local and community control of natural resources. I resisted the afforestation of Caithness and Sutherland and was blacklisted from working in my chosen profession, as a consequence. I worked with Scottish civil society to expose the hypocrisy of northern governments at the Rio Earth Summit, whose records on deforestation were worse than the southern governments they were enthusiastically criticising.

I attended the Commission on Sustainable Development In New York with Bill Ritchie from the Assynt Crofters’ Trust where we briefed Governments on the UK and Scottish Office failures on sustainable development and embarrassed a senior UK civil servant in the plenary session by asking why the UK Government was supporting land reform in east Asia whilst resisting it in Scotland.

I was a co-founder of the Taiga Rescue Network comprising NGOs from across the boreal region to protect northern forests. Since the mid-1990s I have worked on a wide range of projects, initiatives and campaigns that focussed increasingly on environmental justice and land rights.

I argued in my first book, Who Owns Scotland, that Scotland needed a domestic legislature to address properly environmental and land questions that had been neglected for decades. I had productive meetings with newly elected Scottish MSPs and political parties and gave written and oral evidence to Committees.

By 2009, I decided that it was time to nail my political views to the mast and I joined the Scottish Green Party in October 2009. My second book, The Poor Had No Lawyers, increased my profile, and seven years after joining the Party I was selected as number 2 on the Lothian Regional List and was elected to the Scottish Parliament.

I have always been clear that the job of an MSP is threefold: to represent constituents on matters within the devolved competence of the Parliament, to hold the Scottish Government to account for their decisions, and to scrutinise legislation and make laws for the people of Scotland. MSPs are representatives of the people, not delegates of political parties.

During all of my working life I have sought to treat political opponents with respect, not least because a determined effort to understand an opposing point of view helps clarify one’s own viewpoint. Plus, life is more agreeable for all when we can disagree well.

Despite some heated debates at Scottish Green Party conferences and the occasional personality clash, I found the Scottish Greens to be collegiate and supportive and I made many friends. However, the mood changed for me from Autumn conference 2017.

Scottish Green Party Conference Autumn 2017

A motion was debated at the 2017 Autumn conference which was designed to deal with what the proposers argued were two “muddled, contradictory and unclear” policies on prostitution and the sex industry. The proposers of the motion highlighted the contradictions in the two policies and sought the agreement of conference for a review of them both with a view to developing a “revised and consistent policy” which was “consistent with SGP principles and policies that set to challenge patriarchy and inequality”.

The motion was moved and supported by young women and by a number of longer-standing women activists, some of whom I had known for many years before my involvement in Green politics. The debate, however, was rushed at the end of conference and the debate, such as it was, was characterised by hostile and aggressive interventions, delaying tactics and procedural technicalities. At the point of voting, I put my hand up to support the motion but was not so subtly told by a Party activist sitting behind me that I should be voting against. I continued to support the motion but it was defeated.

Afterwards, the young women who had proposed it were in tears at the hostile tone of the debate and for the first time I wondered about the culture within the Party. In the aftermath of this vote, a number of prominent female members left the Party, with one citing self-serving cliques and groupthink that were hampering open and free debate.

2018-2019

In the latter part of 2018 and into 2019, public debate emerged about reforms of the Gender Recognition Act (GRA) and rapidly developed into wider debates about sex, gender, identity and public policy more generally. As part of my role as an MSP I met with a range of individuals and organisations to discuss these matters. In April 2019, I co-hosted a meeting in Parliament organised by Scottish Trans Alliance, Stonewall Scotland, LGBT Youth Scotland and Amnesty International Scotland, called “Being trans in 2019”.

But I began to wonder where this debate was going following a heated exchange on STV Scotland Tonight on 23 May 2019 where Maggie Chapman, the SGP co-convenor, claimed that sex was not binary. Technically this is true (it is bimodal), but there are only two sexes.[1550 10 Aug 2021 EDIT – what I mean here is that the distribution of primary and secondary sex characterisistcs is bimodal. Sex is binary (there are only two).] If there are more (as Chapman implied) then Section 11 of the Equality Act 2010 would need to be amended. There may be many genders, of course, but I was genuinely perplexed as to why the Party’s then co-convenor thought it advisable to try and advance such an argument in relation to sex on national television.

June 2019

In June 2019, I attended a meeting at the University of Edinburgh called “Women’s Sex-Based Rights: what does (and should) the future hold?”. It was organised by the University of Edinburgh, and a number of MSPs and Scottish Green Party members were in attendance. I was unaware that there was any controversy around the event but became aware that the University Pride Network had concerns. Afterwards, as one of the speakers was leaving, she was subject to an attempted assault and the next day I Tweeted to condemn this and to express my hope that the speaker was fine.

The ensuing publicity that I had attended this meeting prompted a great deal of online comment and personal abuse. Patrick Harvie asked me to apologise for having attended the meeting, telling me that I needed to eat some humble pie. I refused to do so but did issue a statement apologising for any offence caused to Party members who thought I should not have attended.

On the other hand, many people supported my attendance, commenting that it was exactly what MSPs should be doing. These included the co-chair of the University Pride Network whose opposition to the event had been cited by my detractors. The entire Pride Committee was reported to have resigned in protest at the meeting, but in fact they resigned in response to a request from the University to remove content from an online petition that (in the University’s view) exposed the University to legal action for defamation. The co-chair is a transwoman and had herself attended the meeting. She wrote to me afterwards to say that my “support is most appreciated” and that “your presence at the meeting made sense to me”. The organiser of the meeting herself was a member of the UoE Pride Network. She had endured a hellish few weeks with personal threats, smears and defamatory allegations made against her.

Very soon afterwards, some Party members submitted complaints through the internal Party system. I tried to respond to them as best I could, but was never informed as to what exactly the complaints were and what it was I was alleged to have done beyond some generic references to the Code of Conduct and to a transpositivity statement (of which more later). In the wake of my resignation, one of the complainers, Eilidh Martin, complained that swifter action had not been taken against me.

I was shaken by these events and disappointed at the smears and allegations levelled against me, mostly in private, but some in public, by Party members. I began to wonder whether I could continue to be a member.

This event was swiftly followed by a Parliamentary motion in the name of Jenny Marra MSP lodged 2 days later which stated:-

“That the Parliament notes that a well-attended discussion on women’s sex-based rights, with a range of invited speakers, took place at the University of Edinburgh on 5 June 2019; believes that universities should be safe places for complex and sometimes controversial discussions to take place; and strongly believes that there is no place for violence or threats of violence towards women engaging in public life in Scotland.”

Patrick Harvie asked Green MSPs not to sign the motion and a bad-tempered meeting of Green MSPs attempted to discuss the matter. I signed this motion as I support free speech, the right of Universities to hold meetings to discuss complex and controversial matters, and obviously believe that there is no place for threats of violence against women.

Further complaints inevitably followed.

Scottish Green Party Autumn Conference 2019

The Party’s Autumn conference was held in Inverness in October 2019. The results of selections for the Holyrood election were made public and I was pleased to be selected again as number 2 on the Lothian List with 133 first votes, second to Alison Johnstone with 191 and with the Party’s co-leader, Lorna Slater in 3rd place with 36. (Lorna was then to take my place after I resigned.)

One of the motions brought to conference was titled “Inclusive debate within the Scottish Green Party”. The motion noted the “increasingly toxic, aggressive and intimidatory nature of political debate in society and the departure of a number of longstanding women activists”. It stated that “it is a matter of concern that some members have reported feeling inhibited from expressing their views publicly at some recent SGP conferences and events” and that the “General Meeting also notes with concern the number of committed feminist activists who have left the Party in recent years.” The motion went on to recommend the establishment of a working group on ensuring open, inclusive and egalitarian practices. When the motion was called, no one came forward to propose and speak to it. It therefore fell without being debated.

The reaction of many of the delegates was to whoop and cheer. I was sitting near the front and turned round with a quizzical expression on my face to try and understand why. A number of those who had been and would become my detractors noted that I was not joining in the celebration and later I overheard someone asking what the motion was all about. The response to this person was to label the women referred to in the motion as transphobes, even though as far as I was aware these women were those who had resigned in the wake of the vote on the sex industry and prostitution debate (nothing to do with trans rights or the trans debate).

Earlier that same day, the Party had just adopted a new Code of Conduct which committed members to be inclusive, considerate, respectful, understand that diversity gives us strength, forgive mistakes, maintain political discipline and help each other be better.

I now realised that elements of the culture within the Party were in direct violation of these values.

January 2020

Given my experience of attending a meeting in June 2019, one might expect that any Green MSP attending any such meeting again would be subject to a similar reaction from Party members.

On 14 January 2020, Patrick Harvie attended a meeting in the Scottish Parliament at which the Declaration of Women’s sex-based rights was launched. The meeting was criticised in advance by the Equality Network as being “anti-trans”.

In a conversation with a senior Party member, I asked why Patrick had attended given the criticism levelled at me and why no apology had been forthcoming, I was told that Patrick was clearly not anti-trans. When I said that neither was I and that the criticism was that I had attended such a meeting not that I was anti-trans, I was told that this was different. When I asked what was different, I was told that this was a meeting in Parliament and not a public meeting. When I asked what difference that would make to Party members who were so critical of my attendance at such a meeting, I was told that Patrick was doing his job. When I said that I was doing my job too, the conversation stopped.

By this time, it was clear me that the public debate was now embracing more than the proposed reforms of the Gender Recognition Act (GRA). The meanings of the words “sex” and “gender”, the theory of gender identity (as opposed to gender dysphoria) and public policy around these were increasingly at the forefront of the GRA debate. Language and the meaning of words were at the heart of the debate.

I support reform of the GRA to become more person-centred but do not believe that it is necessary to change long-established concepts or scientific fact or meanings of words to achieve this. Far less do I believe that is necessary or relevant to have to embrace queer theory in order to support the advancement of trans rights.

Then the pandemic happened.

The Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

One of the problems with bringing to justice those responsible for sexual assault is that victims are reluctant to complain in time for forensic evidence to be gathered. Even when forensic evidence had been gathered in a health setting, there were problems with admissibility in court. The Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill sought to put the good practice that had been established between Police Scotland and NHS Scotland on a statutory footing and place a duty on health boards to provide forensic medical services and to enable such evidence to be held until such time as a complaint might be made to the police and criminal investigations commenced.

Of necessity, the Bill amended parts of the Victims and Witnesses (Scotland) Act 2014. Section 8 of that Act implemented EU Directive 2012/29 of 25 October 2012, which established minimum standards on the rights, support for, and protections of, victims of crime, and gave a statutory right to victims of sexual violence to specify the sex of the interviewer. The 2014 Act went further than this in Section 9, which gave the right to request that any forensic examination be conducted by a person of the same sex as the victim. Section 8 of the 2014 Act implements this Directive in Scots law but uses the term gender instead of sex (as does Section 9).

In its Stage 1 report on the 2020 Bill, the Health and Sport Committee recommended that the words “gender” and “sex” have different meanings and that the 2014 Act should be amended to replace the word “gender” with “sex”.

In the Stage 3 debate on the Bill, Johann Lamont MSP proposed an amendment that would do just that.

This was to prove controversial.

In law, the use of the words “gender” or “sex” in the context of Sections 8 & 9 of the 2014 Act makes little difference, as the intention of the legislation is clear from the context and from the EU directive.

However, the word “gender” is now being used in a much greater variety of ways and has a number of meanings. Whilst changing the words used in Section 9 may not have many practical consequences, it seemed to me that this was, on balance, a justifiable amendment given the language in the EU Directive and the recommendation of the Committee.

Furthermore, I was in receipt of significant correspondence from constituents who had been victims of sexual violence asking me to support the amendment. I initially responded saying that I was not convinced that changing the language would be meaningful. However, in the 48 hours leading up to the vote I had undertaken further research and now felt that on balance there was a good case for supporting it and advised the Group that I was minded to support it and that legislation dealing with matters of the utmost sensitivity relating to (mainly) female victims of sexual assault would not be conflated with other debates about trans rights.

The replies I received were interesting. Voting yes to the amendment would be “best described as biological essentialist” and that this was in “direct opposition to gender recognition and therefore incompatible with trans people’s human rights”. This is of course nonsense. Sex is the protected characteristic that categorises women and men. Using accurate language has nothing to do with trans people’s human rights.

SGP MSP Meeting

An urgent meeting was called for, on Thursday. This was online, and was attended by all SGP MSPs except Alison Johnstone who was on long-term leave for health reasons. She was the Party’s spokesperson on health, and the Party’s member of the Health and Sport Committee. Apart from one MSP who was initially relaxed about my voting yes, the 3 others were implacably opposed. They advised me in very stark terms that voting yes to the amendment would lead to complaints from within the Party and action against me, up to and including deselection and suspension.

One SGP MSP colleague advised me that it would be in direct contravention of a transpositivity motion passed at the AGM of the Spring 2018 conference and it was trans-exclusive to vote yes to the amendment. They told me that “the Party will absolutely take action against anyone who votes for the amendment” because the Party takes an unequivocal stance on trans rights as voted by conference. It’s perhaps worth saying something about this trasnspositivity motion.

The transpositivity motion was debated at the AGM of the Party in Spring 2018. It was passed under AOB at an AGM attended by “in excess of 90 members” according to the Minutes. It was later to be cited as evidence that I was minded to vote against Party policy. But AGM motions are not Party policy. Party policy is made on the conference floor and documented in the Policy Reference Document. The motion was only presented to members attending the AGM early on a Sunday morning. There was no advance notice in order to allow amendments to be proposed and the motion itself says nothing about when it is appropriate to use the word “sex” and the word “gender”. If using the word “sex” in legislation is to be deemed trans-exclusive then the word needs to be excised from all legislation including the Equality Act (a move I would not support).

It was later argued by some of my critics within the Party that the transpositivity motion was part of the code of conduct, but a new code of conduct passed in Autumn 2019 did not incorporate the 2018 motion. Indeed, at the time of my resignation many members made clear that they had never heard of it and it transpired that the Party had never published it.

The tone and content of this Group meeting left me deeply distressed. The clear view of the majority of the group was that dire consequences would follow if I voted yes.

I discussed the matter further during the afternoon and decided that I would in the end vote against Johann Lamont’s motion, as I was clear from the SGP MSPs’ Group meeting that were I to vote for it, then I would have to resign immediately, and I was unclear at that stage of the consequences for myself and particularly for my staff.

On reflection that evening I decided to resign from the Party for the simple reason that I could not work in an environment with such a censorious, bullying and intimidatory culture and where I was expected to agree that scientific facts such as sex are to be sidelined. This position has never been debated and agreed by Conference but appears to be an implicit consequence of the Party’s stance on trans rights.

Aftermath

I resigned the following Friday (resignation letter here). Party members whom I had regarded as good colleagues immediately denounced me as a transphobe, accusing me of wanting to participate in a moral panic about transpeople. One Edinburgh Councillor thanked me for all that I had done but, on learning of the circumstances of my resignation, recalled the message and said I was disgusting.

The Party immediately embarked upon a damage limitation exercise. A Q&A document purporting to set out why I had resigned was distributed to members and discussions took place on online platforms, most of which I believe I have now seen and have copies of.

A number of Party members, including office-bearers, were suspended for expressing views in support of me. A proposal was made to Party Council for an independent investigation into my resignation but was defeated 33-4. Senior Party officials told members that I had deliberately set out to cause as much damage to SGP as I could when in fact precisely the opposite was the case.

Three accusations have been frequently levelled against me by the leadership and other senior officials.

The first is that I had taken the view that the vote on the amendment was a vote of conscience. I never took this view and never argued that it was. The vote was on which word to use in a section of a Bill. Asserting that I might have thought this was a vote of conscience is untrue.

The second is that I was uncomfortable with Party policy and that steps had been taken to ensure I was comfortable explaining and defending the Party’s policy on transgender rights. I was never uncomfortable with Party policy and it is patronising to tell members that many in the Party had reached out to me and that I had not engaged. In fact, I would contend that I was unusually well informed about trans rights, being a legislator who aimed always to research diligently both proposed legislation and its context, and having engaged with a wide variety of constituents on this matter. The problem all along was a cultural one and an expectation by key influencers in the Scottish Green Party that being supportive of GRA reform was not sufficient evidence of one’s support of trans rights – one also had to subscribe to tenets of queer theory which were and are not Party policy.

The third was the accusation expressed frequently by Patrick Harvie in media interviews that I was opposed to Party policy and had never taken any opportunity to bring forward amendments or debates at Party conference. This was a key argument at Party Council on 6 May 2021 against any independent investigation. To re-iterate, the Scottish Green Party does not have any policy on the use of the words “sex” and “gender” in legislation. Plenty of members have views and express them vigorously and I have never taken issue with their right to do so. But the idea that voting for the amendment was in violation of the transpositivity motion or Party policy is based on a particular interpretation and a set of implicit ideas that have never been set out nor debated nor become Party policy.

The Q&A for Party members and other public statements are insistent that my fault was to have wanted to vote against Party policy on trans rights. This has never been the case. What has been the case is that the Green Group of MSPs insisted that this vote on an amendment to a Bill concerning victims of sexual assault should be viewed through the lens of trans rights and queer theory, and that there was a hostile and bullying culture within the Party.

I have never understood why one has to subscribe to queer theory and gender identity theory in order to improve the lives of trans people. But that’s the bar that has been set in the SGP.

To conclude, I resigned because I could no longer work in such an environment. That others can and do is fine and I am not seeking a debate as to whether I was right or wrong. But for me, I need an environment that is more tolerant, more questioning, more critical, more empathetic, and more willing to listen.

This blog is far longer than I intended it to be but I am not prepared to let misrepresentation and falsehoods gather any more credibility.

I have an audio recording of the SGP MSP meeting of 10 December 2020 and will not hesitate to publicise a transcript if the Party and its office-bearers persist in spreading lies and misinformation about me, my views and my motives.

Only one person knows why I resigned and that is me.

This blog attempts to explain why.

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

09. March 2021 · 9 comments · Categories: Politics

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

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

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

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

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

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

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

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

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

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

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

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

IMPORTANT INFORMATION

Donations will be made to Andy Wightman.

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

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

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

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.

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.

Short-term lets regulations: an imperfect solution

18. February 2021 · Write a comment · Categories: Housing

STOP PRESS:- THURSDAY 18 FEB 2021 1330hrs
The Minister has withdrawn the Licensing Regulation

I launched the Homes First campaign in 2017 to highlight problems with the legislative and regulatory regime around short-term lets (STLs). Throughout my time as an MSP, constituents in the Lothian region have contacted me to express their concern at the impact STLs have on their communities. I have published a range of papers on different aspects of the topic, including taxation, key safe deposit boxes and planning, and have proposed various solutions.

I support two key regulatory changes.

The first is to clarify and tighten up the planning system so that there is better and more effective oversight on the change of use from residential dwellings to commercial short-term lets – when a home stops being a home and becomes a commercial STL.

The second is to give local authorities the powers to licence STLs to ensure that they comply with basic fire, electric and gas safety; have appropriate public liability insurance in place; and that the operators are fit and proper persons.

These two regulatory changes have been the focus of my campaigning. They allow local authorities to regulate STLs in their area as they see fit, reflecting local conditions. Planning and licensing reform are NOT about imposing a uniform solution across Scotland but giving councils the powers that they need to do what they think is appropriate in consultation with the people they represent.

That, in short, is the job of Parliament – to pass regulations that deliver on the above.

The regulations

However, we have instead, two regulations that are in their own ways flawed.

The Town and Country Planning (Short-term Let Control Areas) (Scotland) Regulations 2021 provides for planning authorities to create Short Term Let Control Areas. Within these Control Areas, all STLs must seek planning consent for a change of use from residential to commercial short-term letting.

The Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2021 grants powers to councils to establish a licensing regime for STLs.

It is worth bearing in mind that such regulations (or Scottish Statutory Instruments) are secondary legislation. That is to say, there is primary legislation (Acts) that give explicit powers to Ministers to introduce secondary legislation. In the case of the planning regulations, this is 26B(5) and 275 of the Town and Country Planning (Scotland) Act 1997. The licensing order is introduced using sections 3A(1), 44(1)(b) and (2)(a) and (b) and 136(2) of the Civic Government (Scotland) Act 1982.

The primary legislation from which the powers to introduce these regulations derive stipulates that the regulations must be subject to the affirmative procedure. That means that the statutory instruments become law only if Parliament approves it.

Importantly, however, there is no opportunity for Parliament to amend such legislation.

Parliamentary scrutiny

The regulations were debated at a meeting of the local Government and Communities Committee on Wednesday 3rd February. The Official Report of proceedings can be read here and the Committee’s report to Parliament is available here.

I opposed both regulations and urged the Minister to withdraw them and come back having considered the objections.

I object to the Planning Regulation because it requires Scottish Ministers to approve Short Term Let Control Areas before they can be designated. It’s a power of veto over a matter that should be wholly and exclusively within the competence of local authorities. In the Scottish Government’s consultation on this question, it was claimed that this is similar to the process of designating Conservation Areas. Section 61 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, however, only requires Councils to notify Ministers and when I challenged the Minister on this at Committee, he was forced to write to the Committee and apologise for the error.

I object to the licensing regulation because bed and breakfast businesses are within its scope despite it never having been intended that they would be. The Scottish Government denies this and says that they have always been included, pointing to a rather ambiguous sentence in the 2020 consultation paper.

There is a way round both of these objections if the Minister was prepared to withdraw the regulations and reconsider, but so far he has refused to do so. [see STOP PRESS above- the Licensing Regulation has been withdrawn]

I believe that legislation should be based on informed consultation with those who it affects and that powers for local government should not be subject to central government vetoes.

Thus, despite having campaigned hard for these measures, I find myself in the odd position of voting against the regulations. I would prefer not to be in this position, but without action from the government to improve the legislation, I have little choice.

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

Wrongful Termination Orders

27. January 2021 · Write a comment · Categories: Housing

In July 2019, the First Tier Tribunal issued an eviction order for a tenant living in a small studio flat in Edinburgh. The ground for eviction was that the landlord – along with his wife and daughter – wished to move from their 3 bedroom house into the studio flat.

Schedule 3 (4) of the Private Housing (Tenancies) (Scotland) Act 2016 states that a landlord wishing to recover a property to live in is a mandatory ground for eviction – in other words, the Tribunal must issue an eviction order.

Relations between the landlord and tenant had been strained for some time. It was the tenant’s belief that the landlord wished to evict the tenant and was using eviction ground 4 – an intention to live in the property – as an excuse. The Tribunal found, as they had to, that the test of establishing ground 4 had been met and issued an eviction order.

The tenant left in January 2020. In February, a new tenant moved into the property. The landlord remained in his three bedroom house.

The evicted tenant applied for leave to appeal the Tribunal decision. This was rejected. With the support of the Community Help and Advice Initiative, the tenant then applied for a Wrongful Termination Order. This in itself is an unusual step.

Even more unusually, in November 2020, the Tribunal granted it.

Wrongful Termination Orders were introduced by sections 57 to 60 of the 2016 Act. A tenant who has been evicted but believes that the landlord misled them can apply to the Tribunal for a Wrongful Termination Order. A tenant can apply whether they were issued an eviction order by the Tribunal or if they simply left the property when asked to.

(And most tenants do simply leave – because they have found another home, or it suits them to do so, or they do not want to kick up a fuss, or they are wary of entanglement in the court system.)

There have been previous applications for Wrongful Termination Orders. Although Scottish Housing News reported that the November 2020 decision was the first successful application for a Wrongful Termination Order, an earlier decision in December 2019 saw the Tribunal award £1,200 to a tenant it judged to have been wrongfully evicted. In that case, the landlord evicted the tenant on the ground that they wished to live in the property – but then took Airbnb bookings instead of moving in.

The vast majority of eviction cases lead to a successful eviction order for the landlord. This has been true even during the pandemic, although it is not yet clear what effect the Scottish Government’s temporary transformation of mandatory grounds to discretionary grounds will have. Applications for Wrongful Termination Orders are rare, and success is rarer still.

How many tenants have access to the help and support needed to apply? How many tenants are even aware that this is an option? The vast majority of tenants do not even attend Tribunal hearings when summoned. Organisations like CHAI and Living Rent do phenomenal work, but their resources are stretched. There is a chronic lack of awareness among tenants about their rights.

There is also a fundamental flaw in the legislation. As the Tribunal pointed out in the decision notice, the bar set by the Scottish Government for proof of the landlord’s intention to live in the property is very low indeed. Coronavirus changes aside, you can legally evict your tenant by providing an affidavit stating that you intend to live there.

The reforms of the last few years have strengthened the rights of tenants in Scotland. Yet it remains the case that a landlord who wishes to be rid of a tenant can evict them on the strength of a promise that they are telling the truth. There is no follow-up. Nobody checks that they were telling the truth. It takes a tenant who has both the willpower to push ahead and the support of a charity to uncover a wrongful eviction. It goes without saying that most tenants do not have these resources.

The maximum penalty that can be imposed by the Tribunal in the case of a wrongful termination is six months’ rent. In the November 2020 case, £1,350 was awarded to the tenant – three months’ rent. The Tribunal took both the landlord’s continued dishonesty and the tenant being in rent arrears into consideration.

When a Wrongful Termination Order is issued, the Tribunal sends it onto any local authorities who have the landlord on their landlord register. This is significant because of the fit and proper person test that local authorities should conduct on prospective landlords. Clearly, a landlord who has deliberately misled the Tribunal is not a fit and proper person to hold a landlord registration. It is worth noting in this context that the landlord who was the subject of the 2019 WTO referred to above (who let the property as AirBnB despite claiming that they intended to live there) remains on the Landlord Register.

The rarity of successful Wrongful Termination Orders reveals the flaws in the 2016 act. A priority for the next government should be fixing this legislation so that the rights of landlords and tenants are properly balanced. The private rented sector is crying out for reform. The starting position of any reform should be that housing is a human right, that a tenant’s home is in fact their home and that they should only be evicted in the most exceptional circumstances.

Rockall

06. January 2021 · Write a comment · Categories: International, Marine

In response to reports of Marine Scotland challenging Irish fishing boats in the 12-mile territorial seas around Rockall, I have lodged the following motion in Parliament. For more information on the legal backgound, see this blog by Richard Collins of University College Dublin and this guest SPICe blog by Richard Harrison. Further background is contained in Chapter 9 of The Poor Had No Lawyers.

Motion Number: S5M-23827
Lodged By: Andy Wightman
Date Lodged: 06/01/2021

Title: Rockall

Motion Text: That the Parliament notes reports of the recent actions by the Marine Scotland patrol boat, the Jura, in boarding the Irish fishing vessel, the Northern Celt, and asserting authority over fishing in the 12-mile zone around the island of Rockall; understands that Rockall was annexed by the British Crown following advice from the Colonial Office and exercise of a royal warrant by Captain Connell of HMS Vidal on 18 September 1955, and that this was the last annexation of territory in the British Empire; further understands that the Island of Rockall Act 1972 incorporates Rockall as part of Her Majesty’s Dominions into that part of the UK known as Scotland as part of the District of Harris in the County of Inverness; considers that colonial annexation by the British Crown is not an internationally recognised means of establishing sovereignty over any territory, and calls on the Scottish Government to formally disclaim sovereignty over Rockall and invite the UK Government to initiate international dialogue under the auspices of the UN to establish the status of Rockall in international law.

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