The Scottish Land Commission and ‘robust land reform’

The new Scottish Land Commission came into operation on April 1st. That might not seem like a particularly big deal. Especially given that recent Scottish land reform has been dominated by the passing of the Community Empowerment (Scotland) Act 2015 and the Land Reform (Scotland) Act 2016; both highly controversial pieces of legislation designed to help diversify Scotland’s extraordinarily concentrated pattern of private land ownership. But Scotland’s Parliamentarians have ‘previous’ when it comes to resting on their laurels while fondly imagining that the ‘land question’ has been legislatively fixed. As the almost decade-long policy hiatus following the passing of the Land Reform (Scotland) Act 2003 shows, it’s all too easy to let the political impetus for land reform dissipate in the absence of drivers to keep it on the policy agenda.  So the creation of the Scottish Land Commission to provide “direction, leadership, and strategic thought to land reform in Scotland” matters because it represents a potentially significant institutional driver for retaining and rejuvenating that impetus.

The early signs are encouraging.  The five Land Commissioners (Andrew Thin, Sally Reynolds, Megan MacInnes, Lorne MacLeod and David Adams) and one Tenant Farming Commissioner (Bob McIntosh) collectively bring a wealth of relevant experience to their statutory functions.  For the Land Commissioners these functions for any land-related matter broadly include legislative and policy review; research and analysis; and the provision of information and guidance. The Tenant Farming Commissioner’s functions include preparing and promoting codes of practice; inquiring into alleged breaches of the codes; reporting on the operations of agents of landlords and tenants; making recommendations for a “modern list” of improvements to agricultural holdings; referring questions of law regarding agricultural holdings to the Land Court; and working with the Land Commissioners in undertaking their functions when the latter relate to agriculture and agricultural holdings.

Clearly there is not going to be a shortage of things for the Commission to do in leading what its Interim Corporate Plan anticipates will be “a robust land reform process”. One underpinned by a vision based on “establishing a fair, inclusive and productive system of land rights and responsibilities that delivers greater public benefits and promotes respect for and observance of relevant human rights. It anticipates an increasingly diverse pattern of land ownership and tenure which properly reflects national and local aspirations”.

Of course it’s far too early to say how these rousing words will play out in practice once the embryonic Commission hits its stride. Much will depend on the level of resources available to a deliberately lean organisation, in terms of core staff, as it evolves; although £1.4million of Grant-in-Aid for 2017-18 seems like a reasonable start.   A great deal will also depend on how the Commission deploys what it claims will be a “thoroughly evidence-based” approach to its decisions and recommendations and what tangible differences that approach will make in practice.  Speaking truth to the power of vested interests in the highly charged arena of Scottish land reform may well prove an unpalatable business but it’s a necessary one.  So it will be interesting to hear what Andrew Thin, Chair of the Commission, has to say when he gives the keynote speech at Community Land Scotland’s Annual Conference in Skye next week.

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Show me a Gaelic sign

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Who amongst us doesn’t love a Gaelic sign? You’ve doubtless got your own favourite but here’s mine. It marks the road running through the Bays of Harris on the island’s south east side to Roghadal and the ancient burial ground of the MacLeods of Harris surrounding St Clements Church.

Of course Roghadal’s also accessible via the A859, partly double-tracked thanks to EU funding and winding sedately along Harris’s picture-postcard, community owned west side. In summer that’s a trip along the kaleidoscope coastline of multi-coloured machair, golden beaches and turquoise-tinted sea celebrated in countless smartphone snaps on social media.

The Bays road doesn’t do sedate. Instead, it offers an altogether more Presbyterian driving experience, full of unforgiving hairpin bends, blind summits and sudden, stomach-churning rollercoaster plunges; a sort of Route 666 for the unwary traveller to be navigated with humility, unquestioning faith and no little trepidation. Continue reading

Land Reform after the 2016 Scottish Parliament Election

The SNP’s victory in the Scottish Parliamentary election earlier this month was entirely predictable. However, the party’s failure to win an overall Parliamentary majority makes the course it will chart on land reform as a minority Government less so.

A good deal of the SNP’s manifesto offer on land reform reiterated commitments linked to the Land Reform (Scotland) Act 2016, passed at the very end of the previous Parliamentary session. In practical terms that means establishing a Scottish Land Commission, publishing a Scottish Land Rights and Responsibilities statement, creating a mandatory public register of controlling interests in landowners or tenants and implementing a new community right to buy to further sustainable development. It also means implementing the deeply contentious Agricultural Holdings provisions in Part 10 of the 2016 Act. Continue reading

The Land Reform (Scotland) Act 2016

For most of the last decade the political answer to Scotland’s ‘land question’ seems to have been “pass”. Back in 2003 the Scottish Parliament launched its ‘flagship’ Land Reform (Scotland) Act with a cargo of access rights, community and crofting community rights to buy amid much overblown chatter about the legislation’s symbolic significance as the lodestar for a new politics in Scotland; then watched on with apparent indifference as land reform drifted beyond the horizon as an issue of serious policy concern. Parliament’s passing of a new Land Reform Act last week confirms that this most emotive of issues was carrying a return ticket.

Much of the rhetoric emanating from Government in the run-up to the new legislation’s arrival on the statute book sought to talk up the Act’s radical credentials. That’s hardly surprising given that the SNP has spent much of the last year promoting land reform as being in the vanguard of the progressive, left of centre policies to which it apparently aspires. Even less so in light of the rude awakening delivered to Ministers by the party’s membership at its conference last October when they voted to reject the legislation as too timid in its early draft form. That, together with demands for more detail on key proposals from the Parliament’s influential Rural Affairs, Climate Change and Environment Committee responsible for scrutinising the Bill undoubtedly helped beef up some of its contents. Continue reading

Land Reform Bill Approaches Endgame

The Land Reform (Scotland) Bill is fast approaching its legislative endgame. Last week it emerged from Stage 2 of that process in Parliament looking marginally more radical than before. Although ‘radical’ is a relative term in a country with one of the most concentrated patterns of private land ownership in the world.  The new version of the Bill has further detail on the Land Rights and Responsibilities Statement and Scottish Land Commission, both of which are intended to ensure that land reform becomes entrenched as a permanent feature of Scottish public policy. Some headway has also been made on gleaning information about the control of land, although not as much as some land reformers would like.

The proposed guidance for landowners on community engagement will now incorporate a pick and mix of “relevant human rights”, potentially opening up enforcement possibilities regarding those who fail to adhere to it. Meanwhile the community right to buy to further sustainable development contained in Part 5 of the Bill can now be “the most practicable” way (rather than the “only practicable way”) to “prevent significant harm” to a community wishing to use it. Many will welcome that while simultaneously questioning why the new right cannot be made less onerous still for communities to use; akin to a simplified ‘crofting community right to buy’ that actually works.

Scottish Ministers haven’t blinked on the issue of reacquainting shootings and deer forests with non-domestic rates paid by countless other businesses. It remains to be seen whether reintroducing these rates will plunge Scotland’s rural economy into the type of existential crisis that some have suggested. However, it is the large part of the Bill given over to Agricultural Holdings that remains its most divisive element; a feature that proposed new rules concerning secure 1991 Act tenancies seem to have further exacerbated.

Broadly, these rules will enable a retiring tenant to sell their tenancy back to the landlord or assign it to “an individual who is a new entrant to, or who is progressing in, farming” if the landlord does not wish to buy out the tenancy. In the apparently binary world of agricultural holdings these proposals will either be the ruin or the making of the tenanted sector, depending on whether you’re more inclined towards Scottish Land & Estates or the Scottish Tenant Farmers Association’s views on the issue (see Malcolm Combe’s informative blog for detailed discussion of this and other aspects of the Bill).

The increasingly sulphurous debate around Agricultural Holdings will doubtless continue when the Bill reaches its third and final stage next month.   However, it’s hard to see how the SNP Government can now row back from the positions it has adopted on that and other contentious aspects of the Bill. It’s harder still to see why it would want to do so, given that the promise of radical reform is what led Ministers to this point in the first place.

Expect Stage 3 therefore to involve consolidating what’s already in the Bill rather than engineering a last-gasp Great Leap Forward for land reform. That’s perhaps dispiriting mood music for anyone who hoped that the Bill would transform the concentrated pattern of private landownership in Scotland. Others who view land reform as a gradual process shaped by the ‘art of the possible’ will see the Bill as an important staging post towards a more progressive and sustainable relationship between Scotland’s people and land. That particular journey still has a long way to go.

Amending the Land Reform (Scotland) Bill

January 13th is shaping up to be an important day for the Land Reform (Scotland) Bill. That’s when the Scottish Government is due to submit its amendments to the draft legislation currently making its way through Parliament. These amendments will be produced against the backdrop of the Rural Affairs, Climate Change and Environment Committee’s (RACCE) detailed and analytically robust Stage 1 Report on the Bill, published in December. That Report concludes that considerable work is required to ensure that the Bill’s provisions match the radical promise of its principles.

I’ve already blogged on the Stage 1 Report here. In summary, the Committee wants more detail on proposed guidance for landowners’ engagement with communities and on potential sanctions for not doing so. It also recommends ways to increase transparency of land ownership in Scotland and calls for thresholds triggering the Bill’s new Community Right to Buy to further sustainable development to be set at a level that makes that right a viable option for communities to use. The Committee has also demanded that the Scottish Government better demonstrates the case for re-introducing non-domestic rates for shootings and deer forests. The majority of the Committee advocates introduction of a right to buy in certain circumstances for agricultural tenants but its entire membership is sceptical about the Bill’s capacity to maintain or increase the amount of land available to let, strengthen tenants’ rights and make it easier for them to invest in their tenancies, protect landlords’ rights and ensure continued confidence in the agricultural sector for land to be let.

The Government published its response to the Committee’s report on January 5th, somewhat later than the Parliament’s would have liked  (see Malcolm Combe’s blog for more on that response).  It will be interesting to see the extent to which the Government’s distills its response into amendments that address the Committee’s conclusions and recommendations.

It’ll be instructive too. Not least because land reform is fast becoming a litmus test for the type of progressive, socially inclusive politics to which the SNP claims to be wedded. The party’s top brass have certainly talked a good game about its intentions to transform the relationship between Scotland’s people and land over the last 18 months.  They were at it again during last month’s Stage 1 Parliamentary debate on the Bill. Opening that debate, Environment and Land Reform Minister, Aileen McLeod asserted:

“Land reform is a vital part of the Government’s aspirations for a fairer, more equal and socially just Scotland. Underpinning the Land Reform (Scotland) Bill is an ambition to fundamentally change the framework of legal and social rights and responsibilities that determine how our land is used and governed, to address inequalities and to ensure that our land delivers the greatest benefits to our economy and all our communities.”

Richard Lochhead, the Rural Affairs, Food and Environment Cabinet Secretary, was not slow to pick up the rhetorical baton in his closing remarks during the same debate either, stating:

“We are in the midst of a momentous groundswell in support for action on land reform. Our proposals are about ensuring that one of our greatest assets benefits the many, not the few. The bill is not a one-off, and it is not a quick fix. It does not have all the answers, but it will implement effective and radical land reform. It will knock down some of the obstacles that communities and our citizens face in fulfilling their potential and controlling more of their own destiny.”

 That Parliamentary debate was also instructive in laying out most of the other parties’ perspectives on the Bill. Scottish Labour and the Greens are supportive and, if anything, seem keen to expand and reinforce the Bill’s reforming scope still further. The Conservatives see any threat to private property rights as anathema and are implacably opposed to the Bill’s agricultural holdings provisions, but they are at least consistent in both these regards. In contrast, it’s genuinely hard to know where the Liberal Democrats stand on land reform following their contribution to the debate. Not that it matters in the bigger scheme of things; the debate and its underlying Parliamentary arithmetic indicate that the Government will enjoy a clear run to pass genuinely progressive land reform legislation if it so desires.

To do so, Ministers must navigate some tricky interconnected terrain in a relatively short space of time. Some of that terrain is conceptual. It chiefly involves whether to succumb to calls for ‘clearer’ definitions of sustainable development that potentially close down communities’ scope for manoeuvre within the context of the new ‘Right to Buy’ in the Bill. In turn, that links to recommendations for lowering the sustainable development thresholds for triggering that Right to Buy that are contained in the RACCE Stage 1 Report.    Some of the terrain is legal in terms of ensuring that any disturbance of individual property rights is done in the public interest and in accordance with the full scope of human rights. Ultimately, all of that terrain is political because determining who gets (or keeps) land and on what basis, is the stuff of politics writ large.

It’s a stone-cold certainty that the Government’s amendments to the Land Reform Bill won’t please everybody, whatever form they take. But land reform is not, by its nature, a consensual process. In driving the Bill over the legislative finish line, Ministers must therefore decide who they want to help most and why. That shouldn’t take too long to figure out if they are indeed serious about using the legislation as a bridge towards a more progressive, empowering and socially inclusive politics for Scotland.  There is, in short, still time to be bold on land reform if the SNP can hold its legislative nerve.

‘One Million Acres by 2020’: Strategy Report of the 1 Million Acre Short Life Working Group

Another week, another land reform-themed report. Hard on the heels of the RACCE Committee’s Stage 1 report on the Land Reform Bill comes ‘One Million Acres by 2020’, the strategy report of the Scottish Government-appointed 1 Million Acre Short Life Working Group. Its appearance is further indication of the extraordinary head of steam that land reform has picked up since publication of the Land Reform Review Group’s (LRRG) final report, ‘The Land of Scotland and the Common Good’ last year.

The genesis of ‘One Million Acres by 2020’ predates the LRRG’s report. Back in June 2013 the then First Minister, Alex Salmond, used his keynote speech at Community Land Scotland’s annual conference to announce a target of achieving 1 million acres of land in community ownership by 2020. That was unexpected news to most of the people in the audience at Sabhal Mor Ostaig in Skye that day. Rumour has it that it was unexpected news to at least some of Mr Salmond’s Civil Servants too. Continue reading