Land Reform after the Scottish Parliament Election

The SNP’s election victory on May 6th ushered in a new session of the Scottish Parliament likely to be dominated by Covid recovery, climate change and the constitution.  That much is clear from the portfolios allocated by Nicola Sturgeon last week to her new, slimmed down Cabinet of 10 Ministers compared to the 12 of her previous administration.  Deputy First Minister John Swinney is now Cabinet Secretary for Covid Recovery.  Michael Matheson now has Net Zero and Energy alongside Transport in his brief and Angus Robertson is Cabinet Secretary for the Constitution, External Affairs and Culture. 

On first inspection little appears to have changed in Parliamentary terms. The SNP remain tantalisingly (from their perspective) short of majority government with 64 seats.  Of the opposition parties, only the Greens have increased their tally, adding 2 seats to the 6 they held at the beginning of the last Parliament.  The Conservatives have 31 seats, the same as their total in the previous Parliament. Labour are down from 24 seats to 22 and the Liberal Democrats lost a seat, leaving them with 4.  

None of that makes much difference regarding the constitutional question where the dividing line between the pro-independence SNP and Greens and Union-supporting Labour, Conservatives and Liberal Democrats remains as stark as ever.   In contrast, Scotland’s perennial ‘land question’ offers scope for both cross-party consensus and significant legislative action in the new Parliament in ways that apparently defy the constitutional impasse. 

That isn’t altogether surprising.   Land reform – defined as changes to land ownership and use in the public interest – has featured as a distinctive and emblematic policy area for the Parliament since devolution in 1999.  MSPs passed the Land Reform (Scotland) Act 2003 which introduced the community and crofting community rights to buy during the first Labour-Liberal Democrat coalition Government.  That administration also established the Scottish Land Fund in 2001 with an annual budget of £3 million to help rural communities buy land for themselves to own.    

Further land reform legislation was passed during the Parliament’s fourth session between 2011 and 2016 under an SNP Government.  The Community Empowerment (Scotland) Act 2015 introduced the community right to buy abandoned, neglected or detrimental land and a community asset transfer scheme to enable communities to take control of land and built assets from public authorities.  Following that, the Land Reform (Scotland) Act 2016 introduced a Land Rights and Responsibilities Statement, a community right to buy to further sustainable development, and established the Scottish Land Commission to cement land reform’s place on the public policy agenda.  The SNP Government also increased the Scottish Land Fund’s annual budget to £10 million in 2014.

Various commitments in the parties’ manifestos indicate that the new Parliamentary session will include a further legislative phase of the land reform agenda.  The SNP’s election manifesto states, “We will improve Scotland’s system of land ownership, use, rights and responsibilities, so that our land can contribute to a fair and just society while balancing public and private interests.  We will bring forward a new Land Reform Bill.  It will ensure that the public interest is considered on any particularly large scale ownership and introduce a pre-emption in favour of community buy-out where title to land is transferred”.  

Similar commitments to a Land Reform Bill to control land monopolies in the public interest are contained in both the Greens’ and Labour’s respective manifestos.  The Greens also call for land held by Scottish Ministers, public bodies, the Ministry of Defence, the Crown and large charities to be subject to a public interest test and “greater public oversight”.  Their manifesto also includes a proposal that significant landholdings should be required to produce a transparent land management plan and be subject to a public interest test.  Additionally, the Greens propose to introduce restrictions on overseas ownership of land, as well as regulating the sale of land of national or local significance. 

There is also cross-party consensus on other land reform measures.  The SNP Government have committed to doubling the annual budget of the Scottish Land Fund to £20 million by the end of the current Parliament. The Greens, Labour and Liberal Democrats also committed to increasing the Fund in their manifestos.   Both the SNP and the Greens have manifesto commitments to review the Community Empowerment (Scotland) Act 2015 and to introduce Compulsory Sale Orders to support public interest-led development.   

Against that background, the key issue is how far and how fast the next stage of Scotland’s land reform journey will advance during the new Parliamentary session.   That will largely but not exclusively depend on how well disposed the SNP Government is to early and transformative legislation to ensure that Scotland’s land is owned and used in the public interest and for the common good.  

Several interlinked factors come into play in that regard.  Both Cabinet Secretary Michael Matheson and the new Land Reform Minister, Màiri McAllan, will be aware of the strong public support for diversifying Scotland’s uniquely concentrated pattern of land ownership.  Recently published Scottish Government research on public attitudes to land reform found that 71 per cent of survey respondents support widening ownership of both rural and urban land to include more public, community and third sector ownership, with only seven per cent of respondents opposing that aim.     

They and Mairi Gougeon, the new Cabinet Secretary for Rural Affairs and Islands, will be similarly aware of the damaging effects of monopoly land ownership on the sustainability of rural communities.  These effects were documented in the Scottish Land Commission’s 2019 report on large scale and concentrated rural land ownership which highlighted fear of “going against the landowner” expressed by some research respondents.  The report noted that such 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”.

The importance of land reform to achieving a fair transition to a net zero carbon economy will not have escaped the Government either.  Not least because the Just Transition Commission highlighted that very point in its recent report on how to reach net zero by 2045.  The Government has committed to implementing all of the recommendations contained in the Just Transition Commission’s report, including that of developing a statutory public interest test for any changes in land ownership above a certain threshold. 

Supportive public attitudes to the principles of land reform, together with the importance of diversifying land ownership and use to secure both rural sustainability and climate justice therefore make a compelling case for a Land Reform Bill being passed early in the new Parliament.   

The SNP’s status as a minority Government adds a further dynamic to the future prospects for land reform.  Particularly if the Greens decide to factor their various land reform manifesto commitments into negotiations with the Government as regards the basis on which they will support the latter’s legislative and wider policy programme.     

Inevitably the Scottish Government and MSPs of a progressive disposition will face strong pushback from the landed elite and their allies against any land reform legislation they perceive as threatening to their interests. They are likely to portray the introduction of a public interest test, in particular, as unfairly undermining their often long held and extensive private property rights and discouraging ‘investment’ into the rural economy.

These are difficult arguments to sustain in the face of an unregulated land market in which large tracts of increasingly lucrative land can be bought and sold as trophy purchases without any consideration of the wider public interest implications of such transactions. Even more so, given the levels of scrutiny experienced by communities seeking to use the various Community Rights to Buy contained in current land reform legislation to help safeguard their own futures. 

Far from undermining the prospects for land-based investment, a carefully designed public interest test on large scale and/or concentrated land purchases can balance community, public and private interests in support of a sustainable rural economy.  The challenge for both Government and Parliament is to ensure that such a test, alongside other land reform policy measures to which they have committed, are put in place at the earliest opportunity to help enable Scotland’s rural communities to thrive.    

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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.

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

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.

Land Reform Rebellion in the SNP’s Ranks

Yesterday’s comprehensive rejection of the SNP’s land reform plans by its own membership in favour of something a lot more radical introduces a new dimension to Scotland’s land reform process. These plans, contained in the Land Reform Bill currently before Parliament include creating a land commission, removing sporting estates’ business rates exemptions, providing guidance for landowners on community engagement, establishing a new community right to buy, and giving Ministers backstop powers of intervention if the scale of landownership or landowners’ decisions act as a barrier to communities’ sustainable development.

The SNP’s leadership is keen to portray this cocktail of institutional, administrative, fiscal and regulatory reform as radical.  It really isn’t.

Land reform goes into legislative overdrive

Scotland’s land reform process is giving a pretty good impression of being in legislative overdrive. Last week the Scottish Parliament passed the Community Empowerment Act containing, amongst other things, long overdue provisions to simplify the ‘Crofting Community’ and ‘Community’ Rights to Buy land and extend the latter’s coverage to urban as well as rural areas. Yesterday the Scottish Government published its long-awaited Land Reform Bill, embryonic legislation that the SNP claims will help permanently redraw the relationship between Scotland’s people and land in the interests of fairness, equality and social justice.

Time to move beyond caricatures as land reform enters crucial phase

Scotland’s land reform process is about to enter a crucial phase. The Scottish Government will introduce a Land Reform Bill by the end of June with the intention of passing the new legislation before the current parliamentary session ends in 2016. The Bill’s contents are as yet unconfirmed but, amongst other things, it is likely to include provisions for establishing a Scottish Land Reform Commission; limiting legal entities that can own land; increasing transparency regarding land value and ownership; facilitating Ministerial intervention to remove barriers to local sustainable development linked to the scale or pattern of land ownership or landowners’ decisions; imposing a duty of community engagement on charitable trustees when taking land management decisions; and removing business rates exemptions from shooting and deerstalking enterprises.

According to recently published analysis, the vast majority of the 1269 respondents to the Scottish Government’s consultation on land reform are supportive of these proposals; the notable exception being ‘private landowner’ respondents, who overwhelmingly disagree with virtually all of them. That opposition is scarcely surprising from a grouping of organised interests who see nothing amiss with half of Scotland’s private land being in the hands of 432 owners, and who argue that, in any case, it’s how land is used rather than who owns it that counts.