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.

Aside from that, the SNP has committed to taking forward recommendations relating to the One Million Acres by 2020’, strategy report of the 1 Million Acre Short Life Working Group.

The SNP manifesto further states that the Government will “bring forward proposals to modernise and improve powers for compulsory sale orders. These powers need to be effective to tackle the blight of abandoned buildings and small plots of land in town centres and communities but also adequately protect the rights of owners”. There’s also a commitment to review small landholding legislation and establish Land Scotland, a new land agency “to maximise the benefits of publicly owned land to the nation”.

The intriguing issue is how, if at all, the political currents of minority government might recalibrate the land reform agenda over the next five years. In particular it will be interesting to see whether the Scottish Greens – now with prominent land reform campaigner Andy Wightman in the fold as one of their 6 MSPs – can gain any policy traction with the SNP regarding their own manifesto proposals for “bolder” land reform.

The Greens’ proposals focus on increasing the transparency of land ownership via an open, free-to-use national land information system and an end to land ownership in offshore tax havens; providing a right for secure agricultural tenants to buy their farms “in certain circumstances”; giving children equal rights to inherit land; allowing local authorities to obtain land for higher quality housing at existing use value; ensuring all vacant and derelict land is subject to non-domestic rates; and replacing the current system of non-domestic rates with a land value tax. Given the party’s decentralising instincts, there’s also a strong emphasis on community control of public land and on community agriculture by modernising the Land Settlement (Scotland) Act 1919.

On first inspection, there looks like enough in that prospectus to find common cause with the hefty swathe of the SNP’s membership who were unimpressed by the radical land reform claims emanating from the leadership during last year’s autumn party conference.

Of course, it may be that the SNP’s High Command takes a pragmatic stance and seeks support from elsewhere in the chamber to drive aspects of its legislative agenda through Parliament. As the informal arrangement between the SNP and Scottish Conservatives in the 2007-11 Parliamentary session showed, minority government can make for unlikely bedfellows when political necessity demands.

We’ll have to wait and see on that front.

Still, it does seem clear that land reform is becoming ever more deeply embedded in the decision-making structures of Government following Nicola Sturgeon’s reshuffling of Cabinet portfolios and Ministers after the SNP’s election victory.

In that context it’s noteworthy that Roseanna Cunningham has been appointed Cabinet Secretary for Environment, Climate Change and Land Reform. She has a track-record on land reform, having been Environment Minister when the Parliament’s Rural Affairs Committee undertook post-legislative scrutiny of the Land Reform (Scotland) Act 2003 back in 2010 (the land reform page on my website has more details on that review). Indeed, her subsequent commitment to reviewing the 2003 Act following that scrutiny process was arguably instrumental in leading to the Land Reform Review Group’s influential report in 2014, together with legislative and other developments that continue to flow from that report’s recommendations.

And, as Malcolm Combe notes in his recent blog, the new Cabinet Secretary has not been averse to “radical” land reform in the past. At stage 3 of the 2003 Land Reform Act’s legislative passage she tabled an amendment (subsequently rejected) for forced sales of land to communities in particular circumstances.

Time will tell whether Cabinet Secretary Cunningham retains any such radical instincts. In any event, a combination of minority government, continuing grass-roots pressure for more action from within the SNP’s membership and beyond and the omnipresent constitutional issue of independence suggests interesting times ahead for land reform in Scotland.

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.

Still, the Land Reform Act that has emerged from an intensive period of scrutiny and hundreds of tabled amendments only appears radical when viewed within the context of Scotland’s extraordinarily concentrated pattern of land ownership; one where 50% of the country’s private land is controlled by 432 owners. There’s nothing in the Act’s cocktail of institutional, administrative and fiscal measures to suggest that particular statistic will change any time soon. Despite the recommendations of the Government’s own Land Reform Review Group and extensive lobbying by an increasingly organised grass-roots land reform movement Scottish Ministers have resisted introducing genuinely radical measures such as limiting the size of land holdings in Scotland, banning non-EU registered entities from owning land or providing a right to buy for agricultural tenants.

Anyone under the illusion that the Act was ever going to deliver a Great Leap Forward towards a socialist nirvana really should have read the small print of the pragmatic land reform prospectus on offer from the SNP Government. However, that shouldn’t obscure the fact that the legislation provides an encouraging basis for ensuring that land reform becomes an increasingly significant force for progressive change in support of sustainable development throughout Scotland; albeit one which is strongly contested by the country’s landed elite.

It’s particularly important that land reform becomes entrenched as a permanent feature of Scottish public policy rather than periodically falling off the political radar as has happened in the past. Two measures in the Act can help to ensure that entrenchment occurs. One involves an obligation on the Scottish Government to produce a Land Rights and Responsibilities statement underpinned by principles of human rights, equal opportunities, reducing inequalities due to socio-economic disadvantage, community empowerment, diversity of land ownership and sustainable development in relation to land. The other involves creation of a Scottish Land Commission (with scope for including at least one Gaelic-speaking Commissioner if practicable) to provide oversight and input to any matter of law or policy relating to land in Scotland.

The need for transparency regarding land ownership is also vital so it’s good to see there has been movement on that issue too.   A new Register of Controlling Interests in Land should make it easier to find out who actually does own Scotland; a basic requirement to enable proper scrutiny of land use decisions and the beneficiaries of these decisions. This type of information has long been available in various mainland European countries and elsewhere.

The Act also contains yet another community right to buy to sit alongside the community and crofting community rights to buy originally introduced in the Land Reform (Scotland) Act 2003 and subsequently amended in the Community Empowerment (Scotland) Act 2015 to make them more straightforward to use. The new community right to buy in the Land Reform Act 2016 enables Scottish Ministers to sanction a community purchase of land in the absence of a willing seller if it will further sustainable development and is in the public interest. On first inspection that seems quite similar to the purpose of the crofting community right to buy, only this time rolled out across Scotland. In which case it will be intriguing to see how the new right is implemented in practice.

There is also a requirement in the legislation for the Scottish Government to issue guidance to landowners on community engagement. The guidance is intended to enhance recalcitrant landowners’ local accountability if they are inclined to ride roughshod over the local community’s views regarding land management decisions, assuming they seek these views at all. Its practical effectiveness will depend on the type of sanctions available for non-compliance, an issue on which the Act is silent. Interestingly the Policy Memorandum issued by the Government to accompany the Bill at stage 1 of the legislative process suggested that such sanctions might include triggering the new community right to buy discussed above or withholding of future discretionary land grants, amongst other options.

Despite vehement opposition from Scottish Land & Estates, the membership organisation for private landowners, Scottish Ministers haven’t blinked on the issue of removing the exemption for shootings and deer forests regarding payment of non-domestic rates. It remains to be seen whether reintroducing these rates will be the ruin of Scotland’s rural economy as opponents of the measure contend. Perhaps not, given that countless other rural businesses seem to survive despite paying them.

It remains to be seen too whether changes to agricultural holdings legislation contained in the Act will be the ruin or the making of the tenanted agricultural sector. Amongst other provisions in a mammoth and complex part of the new Act is a measure to enable retiring farming tenants to sell their tenancy under the Agricultural Holdings (Scotland) Act 1991 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. Scottish Land & Estates has been highly critical of this development, arguing that it will deter landlords from leasing farmland with disastrous effects for the tenanted sector. In contrast, the Scottish Tenant Farmers Association has warmly welcomed what it sees as a well thought-out proposal.

Given the deeply contentious nature of land reform reaction to the new Act has split along predictable lines. Community Land Scotland hailed it as “representing important progress in taking Scotland further down the road toward more enlightened land laws and in extending the rights of communities to own land”. In contrast, Scottish Land & Estates’ appraisal has been rather less enthusiastic, especially in relation to what it sees as “the prospect [of] enforced sale of productive land by Government Ministers; changes to tenant farming legislation that jeopardise the future of the sector; [and] the ‘chaotic’ re-introduction of non-domestic rates on sporting estates”. Andy Wightman, Scotland’s foremost land reform campaigner has described the legislation as a watershed in land relations in Scotland”.

It’s hard to disagree with Wightman’s assessment given that land reform appeared dead in the water as a policy issue as recently as four years ago. The new legislation may not please everyone but along with the Community Empowerment Act of 2015 it sends out a powerful message that land reform is an issue for Highland, Lowland, rural and urban Scotland alike; one requiring careful balancing of individual and collective property and human rights in the pursuit of environmentally sustainable, economically and socially progressive change that reflects the public interest.

Nevertheless much remains to be done. Following the Parliamentary election next May the new Scottish Government must ensure that the great swathe of secondary legislation required to fill in the detail of many of the Land Reform Act’s provisions is fit for purpose. That means avoiding the kind of implementation barriers associated with unnecessary complexity that have bedevilled the 2003 Land Reform Act’s community and, especially, crofting community rights to buy. It also means guaranteeing that adequate financial and other resources are made available to ensure that new initiatives such as the Scottish Land Commission are able to pursue their remits effectively. There’s also a vital scrutiny role for Parliament to perform in that context.

More generally the new Scottish Government will doubtless also be encouraged by land reformers to examine what other fiscal and legislative policy levers might be deployed to place land reform onto a genuinely radical footing. In that regard it will be instructive to see what if any further land reform proposals the various political parties include in their manifestos for the forthcoming Holyrood election. There may be freshly minted legislation on the statute book but, for those of a progressive disposition in Scotland, addressing the land question remains unfinished business.

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.

One million acres in community ownership is certainly a headline grabbing if somewhat arbitrary figure.   Given that there are currently only an estimated 480,000 acres in community ownership, more than doubling that figure in 5 years seems like a very tall order. Nevertheless, the Working Group’s newly published report represents a potentially important contribution towards helping make that target a reality.

Some of the report’s baseline data regarding the distribution of land currently in community ownership is illuminating. Fully 66.1% of that total (317,717 acres) is located in the Comhairle nan Eilean Siar (Western Isles) local authority area. That acreage will expand yet further if and when the communities of Gallan Head, Barvas, Bernera and Keose Glebe succeed in buying the estates on Lewis where they live. The Highland Council area accounts for 28.9% (138,651 acres) of the remaining area under community control. That begs the question as to what it is about the context of the Western Isles in particular that has made the region such a magnet for community ownership.

The report also draws on empirical evidence to highlight various interlinked benefits associated with community land ownership. These include control of land assets leading to greater community resilience; more localised and accountable decision-making in relation to land development and governance; rebalanced power relationships in favour of communities within partnership working arrangements; and socio-economic benefits in terms of employment creation; population retention and expansion, and provision of local services and amenities. At the same time ‘One Million Acres by 2020’ acknowledges that community land ownership is not a risk-free endeavour.   The possibility of assets becoming liabilities and the sector’s reliance on voluntary effort are both highlighted as potential areas of vulnerability.

Aside from the occasional lapse into ghastly jargon (“community advice market”, anyone?) the report’s recommendations seem like a sensible basis for action in support of further community ownership. In broad summary these recommendations are thematically organised and focus on:

  • raising awareness of community land ownership opportunities via promotional activities encompassing case-studies, events and other guidance on relevant legislation, best practice, buyout processes and lessons learnt;
  • ensuring that support services available to communities in the Highlands and Islands can be replicated in Lowland Scotland and developing ‘peer to peer’ support and mentoring services;
  • facilitating engagement between different parties (“expert professionals”, private landowners, community groups) for familiarisation, mediation and negotiation purposes in relation to community ownership;
  • strategic co-ordination of effort towards the 1 million acre target by Scottish Government via a high level co-ordinating group with representation from various stakeholders;
  • increasing the supply of land for community ownership, mainly by requiring and/or otherwise encouraging Government departments, agencies and local authorities to consider how they can contribute to meeting the 1 million acre target;
  • measuring and evaluating progress via reporting guidelines, a programme of research and evaluation of the community ownership sector and development of a framework of indicators and outcomes to measure success.

Will the Scottish Government meet its 1 million acres target by 2020? Who knows? And, in a sense, who cares?  The much more important goal is to create the conditions where rural and urban communities throughout Scotland are able to take land into their ownership if that will contribute to their sustainability. In turn, that depends on the Government properly resourcing and implementing the strategy document’s recommendations. It also partly depends (although the strategy report doesn’t mention this) on ensuring that the new community right to buy contained in the current Land Reform Bill before Parliament is of practical use to the communities that are supposed to benefit from it.

RACCE Committee’s Stage 1 Report on the Land Reform (Scotland) Bill

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The Scottish Parliament’s Rural Affairs, Climate Change and Environment (RACCE) Committee published its Stage 1 Report on the Land Reform (Scotland) Bill last week.  The Report has been much anticipated because of its potential influence in shaping amendments to the Bill during Stages 2 and 3 of the legislative process.   All the more so given recent rumblings of discontent (not least from within the SNP’s own membership) that the Government’s land reform proposals are nowhere near radical enough to match its rhetoric on the issue. Others, less favourably disposed towards land reform, will doubtless have been hoping for a report that helps further dilute whatever radical intent may be detectable within the current Bill.

To its credit, the Committee’s Report does not play to either of these galleries.

Instead, it deploys measured language and robust analysis to carefully map out the Committee’s views and recommendations regarding the Bill as it stands.

In essence the Committee appears to find much to support in terms of the Bill’s underlying principles and content. It nevertheless has significant concerns about a lack of detail regarding key provisions (and the negative implications of that for effective Parliamentary scrutiny) in parts of the Bill.   The Committee also has reservations about the potential effectiveness of specific provisions, as currently drafted, in achieving intended policy objectives in relation to transparency of land ownership; removal of exemptions from non-domestic rates; and aspects of agricultural holdings.

The Committee seems warm towards provisions designed to ‘lock-in’ land reform as a cross-cutting and on-going feature of public policy in Scotland. Thus it supports establishing a land rights and responsibilities statement (Part 1) while recommending that it be differentiated from a statement of Ministers’ policy objectives for land reform.   Similarly, the proposal for a Land Commission (not a Land Reform Commission) (Part 2) also passes muster, although more importance is placed on recruiting Commissioners equipped with integrity, principle and vision rather than sectoral expertise.

The Committee is equally supportive of engaging communities in decisions relating to land (Part 4). However, it wants more detail in the Bill’s provisions clarifying why such engagement is required, circumstances and issues on which it would be reasonable to engage, and possible consequences for landowners of not following the community engagement guidance to be issued by Government.

Provisions to introduce a new Community Right to Buy to further sustainable development (Part 5) are broadly welcomed. However, that welcome comes with caveats. One is that the new right should not apply to productively managed agricultural land. Another is that the thresholds to be met before the Right to Buy could be triggered are unduly high to make it a viable option for communities to use.

The Committee has clearly lost patience with the glacial pace of progress in achieving sustainable deer management, the focus of Part 8 of the Bill. The Report considers it “imperative” that the Scottish Government and SNH publish a full review of management arrangements in 2016. The Committee also calls on the Government to consider amending Part 8 of the Bill to include further statutory measures that could be enacted soon after conclusion of that review if necessary.

Other elements of the Bill need considerable work according to the Report.   It states that provisions in Part 3 “are not likely to go far enough in delivering the desired increased transparency about those who own, control and benefit from the land” and makes various recommendations to address that shortfall in transparency. These include requiring:

 “ – those who wish to buy land and register title in Scotland to be registered EU entities, and requiring current non-EU registered owners to register within 5 years of the commencement of the provision;

– those who wish to buy land and register title in Scotland to provide a named contact point in Scotland;

– those who wish to buy land and register title in Scotland to clearly identify those who will control the land and those who may benefit from that ownership and control;

– any other appropriate information that could reasonably be needed as part of the registration process and which would improve transparency and accountability.”

There is also scepticism on the Committee’s part regarding reintroduction of non-domestic rates for shootings and deer forests. The Report states:

“The Committee believes, with one exception [Alex Fergusson] that it may be appropriate to tax larger, profitable, commercial sporting shooting enterprises if a clear case can be made that it would be economically, socially and environmentally appropriate to do so. However, based on the available information, the Committee believes the case for change has not yet been made.” 

Part 10 of the Bill focuses on agricultural holdings and it is here that a political dividing line within the Committee is most obviously laid bare. The majority of the Committee supports some of the provisions in Part 10. A notable exception being Alex Fergusson, who dissented from the comments made in the Report regarding that entire Part of the Bill.

The remainder of the Committee supports removing the need for Agricultural Holdings (Scotland) Act 1991 tenants to register a right to buy interest (Chapter 2); forcing a sale where a landlord is in breach of their lease (Chapter 3); introducing an amnesty for tenant‘s improvements (Chapter 6); and tightening the rules where landlords wish to make improvements (Chapter 7).

However, the Committee (including, one can safely assume, Mr Fergusson) is unconvinced that Part 10 can deliver all of its stated objectives relating to maintaining or increasing the amount of land available to let; strengthening the rights of tenants and making it easier for them to invest in their tenancies; protecting the rights of landlords; and ensuring continued confidence in the sector for land to be let.

In particular, the Committee has concerns about provisions relating to the process of converting secure 1991 Act tenancies into proposed Modern Limited Duration Tenancies (a proposal described in the Report as having received a “lukewarm response” in evidence sessions) and with regard to the proposed new rent review process. It further acknowledges that giving 1991 Act tenants a right to buy remains a “live and contentious issue” while urging the Scottish Government to consider ways to resolve that issue including giving these tenants a right to buy in certain circumstances.

The type of Parliamentary scrutiny that has resulted in the RACCE Committee’s Report is about as far from the turbo-charged rhetoric surrounding much of the land reform debate as it’s possible to get. That scrutiny and its attendant Report have provided a valuable public service in anchoring the Bill to land reform as ‘the art of the possible’. It does this by highlighting key areas where further detailed work is needed to make the Bill more effective, stressing the importance of the Human Rights context, and confirming the adequacy of existing sustainable development definitions in relation to the legislation. At the same time the Report offers encouragement to those favouring a more radical Bill by recommending that landowning entities be EU registered and a possible Right to Buy for tenant farmers in particular circumstances.

Most importantly of all, the Report now provides a vital platform for developing legislation that may yet match the RACCE Committee’s call for a Bill that is “bold in its ambition and clear in its purpose”. Whether that does indeed happen will become much clearer when the focus shifts to Stages 2 and 3 of its legislative progress.

The Scottish Government’s Land Reform Dilemma

Over the last few months the SNP Government has been in cruise control on land reform, confidently talking up the Land Reform (Scotland) Bill currently before the Scottish Parliament as a means for radically reordering the relationship between Scotland’s people and land.   Recently, however, some spanners have been thrown into the well-oiled works of that particular narrative.

The first of these was hurled by the SNP’s own members. At the Party’s October conference they voted to reject the pragmatic contents of the Land Reform Bill as insufficiently radical to make much difference to Scotland’s highly concentrated pattern of land ownership. A second relates to the imminent eviction of Andrew Stoddart and his family from Coulston Mains farm in East Lothian, a case that widespread media coverage and focused public activism have transformed into a cause célèbre regarding the perceived unfairness of Scotland’s current Agricultural Holdings legislation (see Malcolm Combe’s recent blog for further comment on that case and its broader legislative context).

The Government’s claims for radical land reform may soon be further undermined by the Scottish Parliament’s Rural Affairs, Climate Change and Environment Committee (RACCE) which has spent the last couple of months taking oral evidence from witnesses as part of the scrutiny process of the Land Reform Bill as it progresses through Holyrood’s legislative stages. The Committee will publish its Stage 1 Report on the Bill by December 4th. Although no-one’s idea of a page-turner, that Report matters because it will help set the scene for amendments to the Bill at Stages 2 and 3 of the legislative process.

All of which leaves the SNP Government in a slightly tricky position.

Such was the paucity of political interest – never mind action – regarding land reform as recently as 2010, that most campaigners would probably have accepted the current Bill’s provisions in the blink of an eye back then. Especially if they’d known that the Scottish Land Fund would be restored and the Community Right to Buy land would be simplified; both of which have happened in the last five years.

But this is 2015.

Now land reform stands as a totem for the sort of progressive politics that many people thought they were signing up for when they joined the SNP in the aftermath of the independence referendum result. That’s an impression that the SNP Government has done little to dispel in ramping up its land reform rhetoric ever since that result.

Faced with rumblings of discontent from its own party members, a wider grass-roots movement for change, unfavourable media coverage and a potentially critical RACCE report, the Government must soon decide whether to stick or twist in terms of bolstering the radical credentials of the Bill during Stages 2 and 3.

An emboldened Government could, for example, introduce provisions to cap the size of land-holdings in Scotland and limit the ability of non-EU registered entities to own Scottish land; two proposals contained in the 2014 Report of the Government-appointed Land Reform Review Group that were rejected by the Government (see Andy Wightman’s blog for arguments in favour of non-EU ownership limitations).

It could also make sure that the Bill’s right to buy land to further sustainable development is not fashioned in such a way as to make it disproportionately difficult to implement, as was the case with the Crofting Community Right to Buy in the Land Reform (Scotland) Act 2003.

If the Government feels especially bold, it might even consider introducing an absolute right to buy for agricultural tenants within the sizable part of the Bill dealing with Agricultural Holdings.

The alternative is to continue to plot a steadily pragmatic course on what the Government insists is an on-going journey of land reform. That’s unlikely to please land reform’s detractors who already view that journey as taking Scotland in the wrong direction. Ironically, it won’t please a great swathe of the SNP’S own membership who thought they were hitching a ride to a different, more egalitarian Scotland either.

Plenty, therefore, for Minsters to ponder in the coming weeks.