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

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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.

The Government published its response to the Committee’s report on January 5th, somewhat later than the Parliament’s would have liked  (see Malcolm Combe’s blog for more on that response).  It will be interesting to see the extent to which the Government’s distills its response into amendments that address the Committee’s conclusions and recommendations.

It’ll be instructive too. Not least because land reform is fast becoming a litmus test for the type of progressive, socially inclusive politics to which the SNP claims to be wedded. The party’s top brass have certainly talked a good game about its intentions to transform the relationship between Scotland’s people and land over the last 18 months.  They were at it again during last month’s Stage 1 Parliamentary debate on the Bill. Opening that debate, Environment and Land Reform Minister, Aileen McLeod asserted:

“Land reform is a vital part of the Government’s aspirations for a fairer, more equal and socially just Scotland. Underpinning the Land Reform (Scotland) Bill is an ambition to fundamentally change the framework of legal and social rights and responsibilities that determine how our land is used and governed, to address inequalities and to ensure that our land delivers the greatest benefits to our economy and all our communities.”

Richard Lochhead, the Rural Affairs, Food and Environment Cabinet Secretary, was not slow to pick up the rhetorical baton in his closing remarks during the same debate either, stating:

“We are in the midst of a momentous groundswell in support for action on land reform. Our proposals are about ensuring that one of our greatest assets benefits the many, not the few. The bill is not a one-off, and it is not a quick fix. It does not have all the answers, but it will implement effective and radical land reform. It will knock down some of the obstacles that communities and our citizens face in fulfilling their potential and controlling more of their own destiny.”

 That Parliamentary debate was also instructive in laying out most of the other parties’ perspectives on the Bill. Scottish Labour and the Greens are supportive and, if anything, seem keen to expand and reinforce the Bill’s reforming scope still further. The Conservatives see any threat to private property rights as anathema and are implacably opposed to the Bill’s agricultural holdings provisions, but they are at least consistent in both these regards. In contrast, it’s genuinely hard to know where the Liberal Democrats stand on land reform following their contribution to the debate. Not that it matters in the bigger scheme of things; the debate and its underlying Parliamentary arithmetic indicate that the Government will enjoy a clear run to pass genuinely progressive land reform legislation if it so desires.

To do so, Ministers must navigate some tricky interconnected terrain in a relatively short space of time. Some of that terrain is conceptual. It chiefly involves whether to succumb to calls for ‘clearer’ definitions of sustainable development that potentially close down communities’ scope for manoeuvre within the context of the new ‘Right to Buy’ in the Bill. In turn, that links to recommendations for lowering the sustainable development thresholds for triggering that Right to Buy that are contained in the RACCE Stage 1 Report.    Some of the terrain is legal in terms of ensuring that any disturbance of individual property rights is done in the public interest and in accordance with the full scope of human rights. Ultimately, all of that terrain is political because determining who gets (or keeps) land and on what basis, is the stuff of politics writ large.

It’s a stone-cold certainty that the Government’s amendments to the Land Reform Bill won’t please everybody, whatever form they take. But land reform is not, by its nature, a consensual process. In driving the Bill over the legislative finish line, Ministers must therefore decide who they want to help most and why. That shouldn’t take too long to figure out if they are indeed serious about using the legislation as a bridge towards a more progressive, empowering and socially inclusive politics for Scotland.  There is, in short, still time to be bold on land reform if the SNP can hold its legislative nerve.