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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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.