Land reform in Scotland

Land reform in Scotland is an ongoing process whose goal is to end the historic legacy of feudal law. It formally began in 2003 and continues as of 2016.

Land ownership in Scotland

Scotland's land issues are rooted in two processes that happened in the 18th and 19th centuries, especially in the Scottish Highlands:

• Enclosures: landlords took control of the common lands under their regime, made them their private property, and excluded their tenants from using them.
• Highland Clearances: many landlords forcefully evicted their tenant farmers from their lands, in order to use their lands for more profitable businesses. This was a tragic event that created strong anti-landlord sentiments in the highlands.^[1]
• A result of these processes was a severe concentration of lands that continues to these days. According to some estimates,^[2] 432 families own half the private lands in Scotland, and just over 1200 landowners hold 2/3 of Scotland's lands.^[3]

The Crofters' Holdings (Scotland) Act 1886 intended to protect the farmers' rights, but it was too weak to have any effect.

The Scotland land reform aims to balance the land-ownership situation by:

• Securing the rights of access to common land,
• Protecting the rights of tenants and small farmers, and
• Helping small farmers and communities to buy land from large landowners.

Preparations

During the Scottish devolution (1997-1998), a Land Reform Policy Group (LRPG) was established under the chairmanship of Lord Sewel. After extensive public consultation, the LRPG published a set of proposals for land reform (1999).

In 2000, the Scottish Feudal Law from the 11th century, which protected the sanctity of large holdings, was officially cancelled.

In the same year, the Scottish Land Fund was established, in order to help communities buy their land from their landlords.

In 2001, a Draft Land Reform Bill was published. It was accepted as an Act two years later.^[3]

The 2003 Acts

The Land Reform Act 2003^[4] has three parts: unhindered access to open countryside, rights for communities to buy their land when the landowner puts it to sell, and rights of crofting communities to buy their land even without the consent of the landowner. The latter decisively changes the balance of power between the crofting community and the landowner.

1. The first part formalized the tradition in Scotland of unhindered access to open countryside. It created a framework for responsible access to land and inland water,^[5] formalizing the tradition in Scotland of unhindered access to open countryside, provided that care was taken not to cause damage or interfere with activities including farming and game stalking. Similar legislation was passed for England and Wales with the Countryside and Rights of Way Act 2000. This aspect of the Act follows the distinctive approach set out in the Outdoor Access Code, specifying the rights and responsibilities of land managers, countryside users and recreational managers.^[6]

2. The second part established the Community Right to Buy^[7] in order to allow communities with a population of less than 10,000 in Scotland to apply to register an interest in land and the opportunity to buy that land when it comes up for sale.

3. The third part of the Act gives crofting communities the right to buy,^[8] in other words to acquire and control the croft land where they live and work and to acquire the interest of the tenant in tenanted land (interposed lease). It decisively changes the balance of power between the crofting community and the landowner. The major distinguishing feature of the crofting community right to buy is that it is a right which can be exercised at any time. It does not depend on the land being for sale, as under the community right to buy. In effect it is a forced sale and in that respect has something in common with a compulsory purchase.

The Agricultural Holdings Act 2003^[9] amends the law relating to agricultural holdings under the Agricultural Holdings (Scotland) Act 1991. It provides for new forms of agricultural tenancies and makes provision in relation to these tenancies. It provides for the right of certain agricultural tenants to buy land. It provides for the use of certain agricultural land for non-agricultural purposes. It makes special provision for certain agricultural tenancies where the tenant is a partnership. It makes new provision for the resolution of disputes between landlords and tenants arising under agricultural tenancies.^[9]

The Salvesen v Riddell case, 2012-2013

A section of the Agricultural Holdings Act has been challenged and cancelled by the Supreme Court of the UK. ^[10]

The trigger to this ruling was an appeal by Salvensen, the owner of Peaston Farm near Ormiston. The Riddells were tenants in this farm. Section 72, 2003 Act greatly restricted the ability of landowners to terminate the tenancies of their tenants. Initially, the start date of this restriction was set to 4 February 2003. This led many landlords, including Salvensen, to terminate the tenancies of their tenants the day before - 3 February 2003. A later amendment to section 72 retroactively set the start date of the restrictions to 16 September 2002, which made Salvensen's termination notice ineffective.

Salvensen applied to the Land Court, which repealed his application. He then appealed to the Court of Session and obtained permission to apply to the UK Supreme Court. His main claim was that Section 72 is incompatible with his property rights - the rights guaranteed to him by Article 1 of the European Convention on Human Rights.

The Supreme Court unanimously allowed the appeal. It found that Mr. Salvesen’s A1P1 rights were violated by section 72(10) of the 2003 Act and that this provision is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998. Therefore, the suspended the effect of this finding effectively until the defect is corrected.

This case is considered significant from a public law perspective.^[11][12]

The 2016 Act

During 2014-2015, the Scottish government conducted a public consultation about the future of land reform in Scotland.^[13] Based on this consultation, the Land Reform Act 2016 was legislated.^{[14] [15]} This rule added the following.^[16][17]

4. New protections for tenant farmers against eviction.^[18] There is a new form of limited duration lease: tenants will be able to assign or bequeath their leases to a wider range of people, a change that supporters say will encourage transfers to a new generation of farmers but which landowners say will discourage them from making farms available for rent.

5. An end to a two-decade-old exemption from business tax rates enjoyed by shooting and deerstalking estates.

6. A new Scottish Land Fund opening on 1 April 2016 with £10m available to help community buy-outs.

7. Increasing transparency of land ownership and control through a public register.

Criticism

Criticism by landlords

Naturally, many landlords oppose the reform. Some of their arguments are:^[2][19]

• It hurts the property rights of the landowners since it strips them of control of their property. Mark Coombs, a manager of a 33,000 ha Queensberry Estate owned by the 10th Duke of Buccleuch, said that "there are also concerns if the purpose of changing the ownership is simply to allow another party … to carry out the same activity as is currently being undertaken by the existing owner as this strikes at the essence of ownership rights and suggests a clear move towards a more collectivist political view which is not representative of the body politic of Scotland."
• It may hurt the tenant sector. David Johnstone, chairman of Scottish Land & Estates, said the proposal could lead to land not being made available to let. Mr Johnstone said: “What you are doing is giving a tenant a stake in the capital value of the farm. If the landlord doesn’t have the ability to pay, then the farm never comes back... That has got to have a knock on effect in the confidence of anyone who might wish to come to let land or is letting land at the moment.”
• Land concentration is not a bad thing as it may lead to more efficient management. Seafield and Strathspey Estates, a 35,000 ha enterprise which includes salmon beats on the river Spey, is managed on behalf of the family of the Earl of Seafield. It said landowners were being blamed for the inefficiencies of local and central government. "There is a myth presented by individuals sponsoring land reform in Scotland that 'too many acres are owned by too few individuals.' It may be true that 'many acres are owned by few individuals' but there is very little evidence presented to show that this is a bad thing".

Criticism by reform activists

Several parts of the Bill have been criticized as follows:^[20]

• The criteria for community buyout (s.47) is too demanding. There are double criteria: significant benefit from the transfer, and significant harm from non-transfer. Each one of these criteria alone should be sufficient.
• The upper bound of 10 years on tenancy (part 10, s.74) is too short and hurts the rights of the tenants.
• The paragraphs on transparency and accountability (parts 3-4, s.35-36) are too weak: there are no sanctions on refusing to give information about the landowner, and there is no obligation to give information on the real person owning the land (the real landowner often hides behind a "shell company").

Land-reform activists claim that the current reform is insufficient as several important amendments were voted down by SNP and Conservative backbenchers, including:^[16]

• Land cap - restricting the amount of land that one individual can own;
• Preventing land ownership via offshore tax havens. Andy Wightman, the land reform spokesperson for the Scottish Greens and MSP candidate for Lothian, revealed that companies owned by the Buccleuch Estates used tax havens in the Cayman Islands. He said that "The Green bid to clamp down on the use of tax havens goes to the heart of understanding who owns Scotland. As we have seen this week with the uncovering of the complex corporate affairs of the Buccleuch Estates, there is an urgent need to ensure transparency in who profits from Scottish land."

Criticism by law experts

In a 2016 article in the Journal of the Law Society of Scotland, Douglas Maxwell claims the Land Reform (Scotland) Bill contains poorly-defined terms such as "sustainable development" and "communities" which may place the bill in conflict with international human rights laws, particularly the ECHR Protocol 1, article 1.^[21]

Community focus

The Scottish land reform is unique in its emphasis on community. Most other land reforms have focused on giving land ownership rights to individual farmers. In contrast, the Scotland Land Reform Act gives a collective right-to-buy to whole communities living in the same area. This feature was praised by several authors. ^{[3] [22]}

See also

• Acts: Crofting Reform Act 2007 and Crofting Reform Act 2010 and Land Registration Act 2012.
• Reports: Return of Owners of Land, 1873 and Bateman's 'Great Landowners' (1883).
• Courts: Scottish Land Court (1912) and Lands Tribunal for Scotland (1971) and Registers of Scotland.
• Parties: Scottish Land Restoration League and Highland Land League.
• List of community buyouts in Scotland
• Right of public access to the wilderness

References

1. Sellar, W. David H. (2007). "The great land debate and the Land Reform (Scotland) Act 2003". Norsk Geografisk Tidsskrift - Norwegian Journal of Geography. 60: 100. doi:10.1080/00291950500535251.
2. "Imagine a feudal country where 432 families own half the land. Welcome to Scotland". 2013-08-01. Retrieved 26 October 2016.
3. Bryden, John; Geisler, Charles (2007). "Community-based land reform: Lessons from Scotland". Land Use Policy. 24: 24. doi:10.1016/j.landusepol.2005.09.004.
4. "Land Reform (Scotland) Act 2003". Legislation.gov.uk. 2013-02-25. Retrieved 2016-10-31.
5. "Land Reform (Scotland) Act 2003 - Explanatory Notes". Legislation.gov.uk. Retrieved 2016-10-31.
6. "Progressive Property in Action: The Land Reform (Scotland) Act 2003 by John A. Lovett :: SSRN". Papers.ssrn.com. Retrieved 2015-07-10.
7. "Community Right to Buy in Scotland". Scottish Government. 24 March 2016. Retrieved 27 July 2016.
8. "Crofting Community Right to Buy". Scottish Government. 7 July 2015. Retrieved 27 July 2016.
9. "Agricultural Holdings (Scotland) Act 2003". Legislation.gov.uk. 2003-04-22. Retrieved 2016-10-31. This content is available under the Open Government Licence v3.0. © Crown copyright.
10. Lord Hope, Lord Kerr, Lord Wilson, Lord Reed, Lord Toulson (24 April 2013). "Salvesen v Riddell and another, Lord Advocate intervening (Scotland)". Uk Supreme Court. Retrieved 31 October 2016.
11. Mark Eliott (2013-04-25). "The legal status of unlawful legislation: Salvesen v Riddell [2013] UKSC 22".
12. Gemma Mckinlay (2015-01-29). "The case that keeps surprising – Salvesen v Riddell". Retrieved 31 October 2016.
13. Land Reform Team (2015). "A Consultation on the future of Land Reform in Scotland".
14. "Land Reform (Scotland) Act 2016". Legislation.gov.uk. 2014-03-28. Retrieved 2015-07-10.
15. "Land Reform in Scotland". Scottish Government website. Retrieved 26 October 2016.
16. "A new dawn for land reform in Scotland?". The Guardian. Retrieved 26 October 2016.
17. "Holyrood approves sweeping Scottish land reforms". Retrieved 26 October 2016.
18. "Scottish farmer facing eviction wins last-minute reprieve". Retrieved 26 October 2016.
19. Auslan Cramb (2015-12-18). "Property rights threatened by 'aggressive' change in land reform bill". The Telegraph. Retrieved 31 October 2016.
20. MacInnes, Megan; Shields, Kirsteen (2015). "The Land Reform (Scotland) Bill and Human Rights: Key Points and Recommendations". SSRN Electronic Journal. doi:10.2139/ssrn.2698578.
21. Douglas Maxwell (2016-01-18). "Human rights and land reform: unanswered questions".
22. Hoffman, Matthew (2013). "Why community ownership? Understanding land reform in Scotland". Land Use Policy. 31: 289. doi:10.1016/j.landusepol.2012.07.013.

External links

• Rural land on Scottish Government website
• Scottish Outdoor Access Code on www.outdooraccess-scotland.com
• The Mountaineering Council of Scotland — Know the Code
• Text of the Land Reform (Scotland) Act 2003 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk