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.

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2 thoughts on “Land Reform Bill Approaches Endgame

  1. Interesting post Calum.

    As regards agricultural holdings, its world is not binary between landlords and tenants. There is a third pole, namely people who are neither but would like to be tenants or, in the jargon, “new entrants”.

    They, who the Scotgov set out to incentivise, are the losers from this bill because Richard Lochhead’s volte face from the recommendations of the group he himself chaired and not going too far out his way to knock Mike Russell’s ARTB amendment on the head has shattered landowners’ confidence to let agricultural land on any basis at all (these new fangled tenancies the bill is replete with will never be used).

    In this politically toxic atmosphere, landlords will buy back tenancies at any opportunity thus freezing new entrants out. Of course, it would be nice if the courts would oblige by ruling the need to pay contrary to ECHR but even if they don’t, it won’t stop landlords buying tenancies back in.

    The other big story about the ag. holdings part of the bill – although it has gone totally un-noticed – is that it now allows “open assignation” (i.e. assignee can be anybody, doesn’t have to be family or new entrant or “progressor”) when a deceased tenant’s lease is sold after his death. This is new and I can foresee the big estates and contractors piling into this market, squeezing out new entrants again and doing nothing to transform the concentrated pattern of ownership you speak of.

  2. Calum – just a quick thank you. I can’t tell you how helpful I find your site each time I give a talk, like tomorrow in Kirkcaldy, and I just want to get a second opinion on my own sense of what’s going on. Your and Andy W’s sites are gems. I do hope you’ve got them listed in the British library website archive?

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