The Scottish Land Commission’s legislative proposals to regulate concentrated rural land ownership in Scotland.

Last week the Scottish Land Commission published a discussion paper titled ‘Legislative proposals to address the impact of Scotland’s concentration of land ownership’.  It builds on recommendations in the Commission’s March 2019 research report that surveyed peoples’ experience of living under conditions of large scale and concentrated land ownership.  That report made for grim reading, documenting fear of repercussions for “going against the landowner” expressed by some respondents.   

“This fear” the Commission asserted, “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”.  Pause for a moment to digest the fact that this is happening in Scotland.  In the 21^st century. 

Little wonder therefore that the Commission’s 2019 report concluded that there is “an urgent need” for formal mechanisms to identify “harmful land monopolies” and to change either land ownership and/or management practice to “protect fragile rural communities from the irresponsible exercise of power”.

Fast forward two years and the Scottish Land Commission’s new discussion paper gives a clearer idea of what these formal mechanisms might look like.  It proposes that landholdings above a defined scale threshold be legally required to produce a land management plan incorporating community engagement.  The Commission also calls for statutory Land Rights and Responsibilities Reviews to address negative effects of concentrated land ownership power that are beyond “normal, responsible management approaches”.  Such reviews are envisaged as being underpinned by a range of enforcement powers including the disposal of land assets in the absence of compliance by the relevant landowner. 

One feature of Scotland’s distinctive rural land market is that anyone with deep enough pockets can buy as much land as they like without the batting of a regulatory eyelid.   The Commission’s third proposal is designed to address that anomaly by applying a Public Interest Test to the acquisition of “significant” landholdings on the basis of one of the following three criteria: being above a specified scale threshold (although it comes to no firm conclusion as to what that threshold should be); accounting for more than a specified minimum proportion of a Remote Rural Area (as defined in the Scottish Government’s Urban Rural Classification) or being an island; or having previously been subject of a statutory Land Rights and Responsibilities Review.  

Coincidently, on the same day last week that the Land Commission published its discussion paper, Parliament debated a motion tabled by Alasdair Allan, MSP for the Western Isles, commending a research report titled ‘Plantation slavery and land ownership in the west Highlands and Islands: legacies and lessons’, written by Dr Iain MacKinnon of Coventry University and Dr Andrew Mackillop of the University of Glasgow and published by Community Land Scotland. 

The report reveals for the first time the close historical relationship between plantation slavery and land ownership in the region in eye-watering detail.  The authors calculate that 63 estates were bought by significant beneficiaries of ‘slavery-derived wealth’, between 1729 and 1939 with most of these acquisitions taking place between 1790 and 1855, the main period of the Highland Clearances.   The report also shows that estate purchases in the region peaked during the period immediately after establishment of a £20 million fund (more than £16 billion in today’s terms) by the British Government under the terms of the Slavery Abolition Act 1833 to compensate slaveowners for the loss of their ‘property’ when slavery was abolished in the British Empire. MacKinnon and Mackillop show that estate purchasers who were direct beneficiaries of the compensation fund received £110,080,000 (in today’s terms) and that almost 1.2 million acres (over a third of the total area of the west Highlands and Islands) passed through the hands of people enriched by slavery.  

At first inspection there appears little to link the Scottish Land Commission’s present-day focus on injecting regulatory oversight into concentrated rural land ownership and the moral ambiguities of a bygone age.   Certainly, it would stretch credulity beyond breaking point to suggest that today’s landed elite bear any responsibility for the actions of their predecessors, however reprehensible the latter’s activities – and those of a British Government that compensated them – appear when viewed through the prism of modern-day society.  Similarly, and notwithstanding the abuses of landed power documented in the Commission’s 2019 report, it would be disingenuous to assert that there are no instances of individual private landowners making positive contributions to their local communities.     

However, that misses a deeper point. Scotland’s highly concentrated land ownership pattern is in essence a deep-seated and long-standing structural problem that – as the Land Commission’s 2019 report and new discussion paper both illustrate – produces negative monopoly effects that run contrary to the public interest.  And however unpalatable or inconvenient a truth it may be for some, Iain MacKinnon and Andrew MacKillop’s ground-breaking research shows how slavery-derived wealth helped the landed elite to shape and sustain the structure and associated power relations of concentrated land ownership in the west Highlands and Islands, together with a fetishising of so-called ‘wild’ landscapes, that exist to this day.   In these important respects apparently distant echoes from history have repercussions for the present.    

The Scottish Land Commission’s proposals for legislation to address concentrated land ownership will doubtless be portrayed as dangerously radical by those in whose interest it is to defend the status quo.  Stand by for the rickety old trope that ‘it’s land use rather than land ownership that matters’ to be dusted down and given another hollow airing.     But if the Commission’s proposals do seem radical it’s only because the nation’s highly abnormal pattern of concentrated rural land ownership and absence of public interest-led land market controls make Scotland such a conspicuous outlier by international comparison.   A new Land Reform Act after the May Parliamentary election with the Commission’s proposals at its centre would be a powerful signal that the next Scottish Government does not intend that to remain the case.      

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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.