Scotland’s ‘land question’ is ultimately a question of power

Last week was an important one for Scotland’s ongoing land reform journey. On Wednesday the Scottish Land Commission published the report of its Investigation into the Issues Associated with Large Scale and Concentrated Landownership in Scotland’.  That was followed on Thursday by a land reform debate in the Scottish Parliament, initiated by the Scottish Government on the topic of ‘Land Reform in Scotland – Delivering for Now and the Future’.   Both of these developments are significant because they give strong indications of where land reform might go next in policy and practical terms.

The Scottish Land Commission was created in April 2017 as a result of the Land Reform (Scotland) Act 2016 with a remit to ensure that land reform does not stage one of its periodic vanishing acts from Scotland’s public policy agenda as has happened in the past.  That’s a scenario unlikely to occur anytime soon given the substance of the Commission’s report and the political reaction to it.

The report is the most substantial investigation to date into issues associated with large-scale and concentrated land ownership in Scotland.  It follows a call for evidence by the Commission in 2018 for people to share their everyday experiences of living or working in parts of rural Scotland where most of the land is owned by a small number of people.  407 people responded to the call, including landowners and land managers, community representatives and individuals.

Back in 2014 the Scottish Government-appointed Land Reform Review Group (LRRG) broadly defined land reform in its report, The Land of Scotland and the Common Good as “measures that modify or change the arrangements governing the possession and use of land in Scotland in the public interest”.   That definition is instructive because it confirms the significance of land reform as a multi-faceted issue cutting across individual public policy areas in Scotland and places public interest considerations squarely at its centre.

The Commission’s new report is equally instructive because it contradicts the jaded mantra of land reform’s opponents that it is how land is used, rather than who owns it that matters. It also confirms that Scotland’s ‘land question’ is ultimately a question of power.

The report makes a distinction between the concentration and scale of land ownership, noting that “There is no automatic link between large scaleland holdings and poor rural development outcomes but there is convincing evidence that highly concentratedlandownership can have a detrimental effect on rural development outcomes.  These effects arise because landowners have the power to decide who can access land, when, for what purpose and at what price.  This power is created by the current system of private property rights and is therefore directly linked to landownership”.

The detrimental effects of concentrated landed power on rural outcomes are laid bare in   evidence presented in the Commission’s report. The most frequently identified theme in the evidence relates to the influence of concentrated land ownership on local economic development opportunities.   The report finds that economies of scale – another argument for large-scale landholdings routinely trotted out by advocates of the status quo – appear to be “more theoretical than real and more likely to benefit landowners than communities”.  It also finds that the irresponsible exercise of landed power enables landowners to block business development by determining whether and on what basis land is made available for such activity.

Worryingly, the report also notes that approximately a quarter of those who submitted evidence feel that Scotland’s pattern of concentrated landownership has a negative impact on the ability to meet local housing needs.  It states, “these experiences were all connected by a common narrative in which the power of a dominant landowner to control the supply of housing was a key driver of depopulation and economic decline”.

More troublingly still, the report highlights the corrosive effect of landed power on community and social cohesion.  The evidence indicates fear of repercussions for “going against the landowner” by some respondents.  As the Commission’s report notes “this fear was rooted firmly in the concentration of power in some communities and the perceived ability of landowners to inflict consequences such as eviction or blacklisting for employment/contracts on residents should they so wish”.

Much of the evidence regarding other themes in the report also paints a dispiriting picture of the scope for concentrated landownership to skew power relationships between landowners and communities in favour of the former.  The report challenges the “weak” assertion that landscape scale environmental management requires large-scale land ownership.  It also documents the “perceived unilateral approach to decision-making adopted by some landowners (often NGOs) and perceptions of poor land management practices that can arise from this”.

Against that background, the Commission concludes that “there is an urgent need for formal mechanisms to be put in place that would enable harmful land monopolies to be identified and changes in either ownership and/or management practice to be implemented that would protect fragile rural communities from the irresponsible exercise of power”.

To that end, the Commission recommends specific statutory action including the introduction of a Public Interest Test for significant land transfers/acquisitions; requiring land holdings over a certain scale to engage on and publish a management plan; and legislating for a new Land Rights and Responsibilities review process, to take effect when there is evidence of adverse impact.  The Commission also calls for the effects of concentrated ownership to be accounted for in the implementation of the forthcoming Community Right to Buy to further sustainable development established in the Land Reform (Scotland) Act 2016.   Other recommendations include promoting more diverse patterns of private land ownership to help achieve land reform objectives and local engagement in land use change.

Unsurprisingly the Commission’s report dominated last Thursday’s Land Reform debate in the Scottish Parliament.  The Scottish Conservatives expressed disappointment at both the report’s focus and content, questioning the basis of the evidence and reiterating that the focus of policy should be on land use rather than land ownership.  The Liberal Democrats were happy to support the Report’s findings but considered it premature to call on the Government to accept all of the Commission’s recommendations.

The SNP, Scottish Labour and the Scottish Greens gave the Report a more enthusiastic reception.  Together they ensured that Parliament passed a wide-ranging motion which amongst other things “urges the Scottish Government to support the recommendations of the Scottish Land Commission on how to deliver interventions in the operation of Scotland’s land markets and ownerships that will provide disincentives to the future accrual of large privately owned land holdings and help deliver a more equitable distribution in the ownership of Scotland’s land assets in the public interest”.

The dust is still settling after publication of the Scottish Land Commission’s report.  Nevertheless, important points are already coming into sharp focus. The report and its carefully crafted, evidence-based analysis of the inextricable links between concentrated land ownership, land use and the exercise of power feels like a vital staging post in the next phase of Scotland’s land reform journey.  Viewing the issues of land ownership scale and, particularly, concentration through the twin lenses of monopolistic practices and their corrosive impacts on the public interest has significant policy and practical implications.  Such a perspective underscores the potential for the Commission’s recommendations to contribute to a policy route map away from the debilitating exercise of landed power highlighted in its report and towards a more progressive, socially just and sustainable relationship between Scotland’s people and land.  Parliament has endorsed these recommendations and the Scottish Government has stated its support for them in principle.  In the coming months both will have the opportunity to transform their warm words into tangible policy action.

 

Land Reform in 2019

Following a period in the political wilderness land reform has commanded an increasingly high profile on Scotland’s public policy agenda over the last four years.   Much of that heighted profile has been propelled by legislation in the form of the Community Empowerment (Scotland) Act 2015 and, particularly, the Land Reform (Scotland) Act 2016.

The Community Empowerment Act simplified existing Community and Crofting Community Rights to Buy land first introduced in the Land Reform (Scotland) Act 2003 and extended the Community Right to Buy to cover urban as well as rural areas.  It introduced a new Community Right to Buy land which is abandoned, neglected or detrimental to the environmental wellbeing of local communities without the necessity of a willing seller.  The Act also introduced a right for communities to make requests to Scottish Ministers, local authorities and a range of other public bodies to own, lease or otherwise use land or buildings they could make better use of.

The Land Reform (Scotland) Act 2016 represents another important step forward in Scotland’s land reform journey. Amongst other things it made provision for the following: a Land Rights and Responsibilities Statement to help inform policy and practice around land issues in Scotland;  a register of controlling interests in land; guidance on engaging communities in decisions relating to land which may affect them; a new Community Right to Buy land to further sustainable development, again without the need for a willing seller; and creation of a Scottish Land Commission to review the effectiveness and impact of any law or policy relating to land matters and to make recommendations accordingly, as well as commissioning research and providing information and guidance on relevant issues.

In the wake of both the Community Empowerment and Land Reform Acts it may be tempting for Scotland’s Parliamentarians to assume that much of the heavy lifting of land reform has been completed.  That, after all, is exactly what happened when Parliament passed the Land Reform (Scotland) Act 2003, after which land reform went for a prolonged sabbatical as a policy issue for the remainder of the decade.

Tempting, but a mistaken assumption nonetheless.

In fact, there remains a great deal to do to maintain and deepen land reform’s purchase on the public policy agenda as a force for progressive change in Scotland.   Much of that work will begin to take shape over the course of 2019.   Some of it is legislative in nature and involves putting flesh on the bones of provisions contained in the Land Reform (Scotland) Act 2016.  Part of the work is already under way; last autumn the Scottish Government consulted on draft regulations to underpin its new Register of Persons Holding a Controlled Interest in Land which will be introduced this year to improve land ownership transparency.

Other important legislative work will begin later this year when the Scottish Government introduces regulations to implement the Community Right to Buy to further sustainable development contained in the Land Reform (Scotland) Act 2016.   As with the Community Right to Buy abandoned, neglected or detrimental land, the ‘sustainable development’ Community Right to Buy does not require a willing seller.  Making sure that it is fit for purpose while respecting the human rights of individual property owners and members of the wider community will be a critical task for Parliament.  In particular the sustainable development right needs to be framed in a way that will enable communities to actually use it in practice in appropriate circumstances.  It’s not yet clear whether the recently introduced ‘abandoned etc’. Right to Buy will be effective in that regard, partly because no community has yet applied to use it and partly because of concerns that the legal definitions of “harm” and communities’ “environmental wellbeing” are too tightly drawn to make the right useable in all but the most exceptional circumstances.

There’s also work to be done in ensuring that land reform’s geographical reach continues to spread beyond its traditional rural heartland of the Highlands and Islands.  The growth in community land ownership has been the most obvious manifestation of land reform since the pioneering ‘first wave’ of community buyouts – in most notably in Assynt, Knoydart and Eigg – in the 1990s.  Data recently published by the Scottish Government indicate that, as of June 2017, there are 562,229 acres in community ownership.  527,252 acres of that total are located in the Highlands and Islands.  In contrast, the Scottish Government estimates that a mere 794 acres of land in the south of Scotland (Dumfries and Galloway and Scottish Borders) are in community ownership.

One of the most important factors in helping to nurture the growth of community ownership in the Highlands and Islands was the creation of the Community Land Unit in Highlands and Islands Enterprise in 1997.  In the intervening period it has provided invaluable technical, financial and capacity-building support to community groups in terms of purchasing and managing land and other assets.  A comparable service is vital for the south of Scotland to help kick-start an expansion in community ownership there similar to  the surge that has occurred in such ownership in the Highlands and Islands over the last 25 years.   The Scottish Government has a chance to ensure that happens by ensuring that the Bill currently before Parliament to create a South of Scotland Enterprise contains explicit provisions to establish a Community Land Unit within the new development agency.   Whether or not it chooses to do so will be a telling indicator of the Government’s commitment towards making community land ownership a matter of importance to the whole of Scotland.

Arguably some of the most promising possibilities for advancing progressive land reform in the coming year lie in connecting seemingly disparate policy threads to move away from the conventional ‘silo-mentality’ that characterises much of Government policy-making in Scotland (as elsewhere).

One area of opportunity concerns the rural repopulation and renewal agenda.  This policy area which has been given added urgency by gloomy forecasts, contained in Scottish Government-commissioned research by The James Hutton Institute, of plummeting populations in Scotland’s Sparsely Populated Areas by the mid 21stcentury.  The Planning Bill currently heading towards its final stage in the Scottish Parliament contains amendments – for which Community Land Scotland has advocated – which explicitly encourage consideration of rural repopulation in future planning policy and local development plans by Scottish Ministers and local planning authorities respectively.

Much remains to be done at both policy and practical levels to connect land with other elements of rural renewal such as affordable housing, high quality jobs, digital and other infrastructure that can help retain and grow rural populations in ways that are economically, socially, environmentally and culturally sustainable.  Nevertheless, viewing these interconnected issues through the policy lens of land reform offers a fresh perspective on how to achieve rural renewal objectives that are collectively in all of Scotland’s interests.

A further area where land reform and wider policy objectives may intersect more closely in future is that of human rights. An important feature of recent land reform legislation in Scotland has been the introduction of a perspective on the relationship between land rights and human rights that goes beyond focussing only on individuals’ property rights.  The Scottish Government made a commitment last month to legislate for an Act of Parliament to provide Human Rights leadership in Scotland. In turn, that raises intriguing and as yet unexplored possibilities for further alignment of Scotland’s evolving human rights and land reform agendas.  Of particular interest is the potential scope for aligning the right of everyone to take part in cultural life, as articulated in Article 15 of the International Covenant on Economic, Social and Cultural Rights, with Scotland’s ongoing land reform process.

2019 is not the time to slow Scotland’s land reform process down.  Rather, the year ahead offers an opportunity to both accelerate its pace and direct the reform process towards hitherto unexplored policy avenues.   The extent to which that opportunity is grasped will largely depend on the appetite of Government and Parliament to make wider policy connections that enable Scotland’s land to fulfil its function as a precious and finite resource to be used in the public interest for the common good.  It promises to be an interesting year

Small cairns, big questions: community empowerment and landscape

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Norman MacCaig’s epic poem ‘A man in Assynt’ famously asks

Who owns this landscape? –

The millionaire who bought it or

the poacher staggering downhill in the early morning

with a deer on his back?

Fast-forward the 50 or so years since the poem’s publication and you might be tempted to add smart-phone brandishing tourists eager for a selfie and another tick on their ‘beauty-spot’ bucket lists to MacCaig’s cast of characters laying claim to some of rural Scotland’s most iconic settings.  That’s certainly been the case in Skye’s Fairy Glen for quite some time, but tourists’ encounters with that landscape have involved bestowing unwelcome – from locals’ perspectives at least – punctuation marks in the form of the cairns many insist on building there to mark their visit and doubtless share on social media.

As last week’s gloriously headlined front-page story in the West Highland Free Press highlighted (“Cairn madness at Fairy Glen sparks action”), some of these locals have had enough and taken it upon themselves to remove the offending items, which they maintain are a health and safety hazard and leading to the erosion of the environment.  Some tourists were apparently less than thrilled at their mini-monuments to themselves being removed according to Claire Irons, the Uig resident whose Facebook post and accompanying photo inspired the cairn clear-up a couple of weeks ago.  It seems that Hell hath no fury like tourists deprived of their selfie props.

In its modest way, the Fairy Glen furore provides a stone-strewn vignette of wider and more deep-seated issues concerning how rural landscapes are valued, consumed and, in another nod to MacCaig, how they are possessed.  And, crucially, in who’s interests these processes are played out.

Some of these questions are explored in ‘Community Empowerment and Landscape’, a new research report by Inherit: the Institute for Heritage and Sustainable Human Development in collaboration with Community Land Scotland, the membership organisation for Scotland’s community landowners.  The report examines how ‘landscape policy’, a convenient shorthand for the laws, designations and associated initiatives dealing with conservation and management of the ‘landscape’, ‘historic environment’ and ‘natural heritage’ dimensions of rural places is implemented by Scottish Natural Heritage and Historic Environment Scotland, the main Government agencies responsible for putting that policy into practice.

Not particularly well from a community perspective, as it turns out.  According to the report’s author, Dr Chris Dalglish, the research’s key finding is that communities’ feel “locked out” of landscape designation decisions that affect their lives, leading to a “participation deficit” that leaves them largely disempowered in determining the characteristics of the landscapes of which they are the living, human dimension.

Does that matter? Read the whole of ‘A man in Assynt’and you’d be forgiven for concluding that it probably does not, as MacCaig dismisses his “false questions” concerning  ownership and possession of a landscape that is

masterless

 and intractable in any terms

that are human

Well, perhaps. However, the human dimension certainly does intrude into the distinctly unpoetic world of landscape policy management. Or at least the institutional dimension does because, as the ‘Community Empowerment and Landscape’report shows, there is a tendency to see landscape matters – in terms of defining their characteristics and “special” qualities – as the exclusive preserve of professionals and institutions underpinned by a ‘fence and exclude’ conservation culture that treats development simply as a threat.

The most obvious example of that approach is the creation of Scotland’s 42 wild land maps covering some 3.7 million acres of rural Scotland, most of them in the West Highlands and Islands. These maps are underpinned by a highly subjective list of supposedly “special’ qualities that conveniently airbrush the ‘people’ dimension out of great swathes of the rural landscape.  You can add Scotland’s 40 National Scenic Areas and countless other conservation designations into that same mix.

That’s not to say that ‘conservation’ or ‘development’ should to be a binary, ‘either-or’ choice. However, as ‘Community Empowerment and Landscape’ also shows, there needs to be some radical rethinking of how landscape policy is conducted to make it more attuned to the principles of sustainable development than it currently is. That implies integrating consideration of human rights and wider social and economic consequences into the process of applying and managing natural and historic heritage designations.    It also implies a culture change on the part of public agencies to enable communities’ voices to be heard much more prominently in landscape policy than has hitherto been the case.  Hovering high above these issues are two vital questions; namely who and what are Scotland’s rural places for? Anyone who thinks these fundamental questions about the future of rural Scotland are uncontested might be well advised not to build any cairns in the Fairy Glen anytime soon.

The Future of Community Land Ownership in Scotland

This is an abridged version of a discussion paper on ‘The Future of Community Land Ownership in Scotland’ prepared for the national Strengthening Communities conference held in Aviemore on 21st and 22nd September. The full paper is available at: http://www.hie.co.uk/community-support/community-conference/presentations.html

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Community land ownership has captured Scotland’s political imagination to the extent of defining and dominating the debate on land reform over the last 20 years. That debate centres on whether Scotland’s extraordinarily concentrated pattern of private land ownership inhibits or encourages land use that reflects wider, shared societal objectives for the common good.

Proponents of land reform argue that concentrated ownership enables the dominant exercise of economic, political and social power by large-scale private landowners that can run contrary to the wider public interest. They consequently advocate democratising property rights through co-ordinated application of legislative and fiscal policy measures to redistribute these rights more widely within the context of an increasingly diverse and transparent pattern of land ownership in Scotland in support of sustainable development. Continue reading

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. 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