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  • Writer's pictureRob Gibson

Formal Bill process

Don’t be satisfied with half measures of change, but to go in for what is your just and your

natural right.

Michael Davitt, Portree 1887.

And when the sky darkens and the prospect is war

Who's given a gun and then pushed to the fore

And expected to die for the land of our birth

Though we've never owned one handful of earth?

Workers’ Song.

As I, and my fellow MSPs, returned from the 2015 summer recess, raring to go, we were disturbed to hear that the bill team leader, a civil servant, Stephen Pathirana, had been moved to a key job in the housing division. Until July 2015, Pathirana had been part of the Scottish Government Short Life Working Group (SLWG) which was working on achieving the target of one million acres in community ownership by 2020. It would report in December when we completed Stage 1 scrutiny. This key staff move was triggered within the Civil Service itself. It is a UK-wide structure with procedures immune to political interference. In other words, transfers are triggered regularly by arcane civil service appraisals and promotions which are not in the gift of Scottish Government. It was a mystery to us on the brink of a major bill to see this experienced hand removed from the tiller and two others replaced to guide the bill team in short succession during the parliamentary stages.

Stephen Sadler who had led another bill team, on votes at 16 before the independence

referendum, took over Pathirana’s role on the SLWG and by the end of the year of the Land Reform Bill 2015 team. He appeared on 2 November at RACCE under the title of Head of Land Reform and Tenancy Unit along with minister Dr Aileen McLeod.

Extensive public engagement planned

For me, engagement with public opinion is a key part of MSP activity. After Kirkwall in June, we had agreed on a public call for evidence to scope out the range of possible visits for sampling views on the bill’s proposals. We sought snapshots and moods in as many places as possible. That said, the few weeks from 7 September to 2 November, which excluded time off for the October recess and SNP Annual Conference, was logistically, tight for groups of committee members to travel to far-flung spots over weekends and outside the normal Tuesday to Thursday parliamentary schedule.

We plumped for two formal committee meetings outside Holyrood, namely in Portree on 7 September to begin the public evidence sifting and in Dumfries on 2 November, to hear some more detailed answers from Dr Aileen McLeod MSP and her bill team. In between we made fact-finding visits to Fife, Jura and Islay, the Scottish Borders and the Registers of Scotland HQ in Edinburgh. Public meetings were held in Jura and Dumfries with large and often quite critical audiences.1 As well as briefings from SPICe, the indispensable parliament information service, we all received a fat ring binder full of written submissions on the bill. A systematic read through of the 200 separate responses covered the breadth of the bill.

A large tranche concerned the agricultural holdings proposals. In my rough calculation, 37%

were supportive, 37% firmly opposed and 26% had searching questions and suggestions for

improvements on all aspects of the bill. Some respondents had previously given their views to the LRRG who had gleaned 484 submissions in 2012 and to the Scottish Government bill consultation earlier in 2015 which had previously attracted nearly four times that amount.2

Two examples from written submissions to the call for evidence by RACCE in August 2015 show the extensive range of views we received. Both were made by residents of the Isle of Arran.

Having worked for the Duke of Buccleuch, Lord Bute, and Arran Estate as a gamekeeper

when I was a young man, land reform has been my passion ever since! I have been bitterly disappointed by the timidity of the SNP Government and fear I will end my days still living in a feudal society. The propaganda from the landowners is very slick and accepted by a largely urban population who do not understand how they have been deceived and robbed for generations.

Huge areas of Scotland are held down by this small number of people who stop any

improvement or development and actively denude the country of its people. My own home island, and all the neighbouring ones are the same, are unable to develop anything without owning the land and the present reform bill will do nothing to help. We need to do the same as was done in Eire and dissolve the estates. It was the present Duke of Buccleuch's grandfather that I worked for and the royals and the Tory party grandees came for the grouse shooting on what is laughably called the glorious 12 August. I can think of few other less glorious events as the toffs slaughter hundreds of grouse just for fun! However, it was the treatment of the working men that was sickening and I learned what it was to be a serf. Dissolve the estates! Follow the European example and limit land ownership to hundreds, rather than thousands, of acres.3

I feel his pain personally. For a lifelong friend feeling so badly of our fledgling land reform powers is heart wrenching.

To understand the deep cleavage of land views, read the thoughts of the laird of Arran

Estates, Charles Fforde whose own written submission 188 shows his utter contempt for the land reform process. Fforde called proposed Land Commissioners ‘commisars’ at the public expense; his use of the word ‘insane’ 16 times, in the submission, as Mike Russell reminded him in an email exchange, is extraordinary. Fforde’s conclusion that the Scottish Government was aping Zimbabwe went like this:

The Leninist notion of proletarian utopia has not worked in Russia, Zimbabwe, North Korea, China or anywhere else. It is insane to think it will work in Scotland. A good deal more common sense and less bigotry are called for on this occasion.

In the words of the Roman Emperor Marcus Aurelius (AD 121-180), ‘The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane.’4

I can only note that two of the limited partnership farm tenancies out of seven in the final complex court cases were on Arran Estate.

Also, the attempt in 2006 by the Rural Development and Environment committee to offer a

route for Arran smallholders to become crofters and escape the thrall of Arran Estate had been contested from the outset by Charles Fforde. The smallholders still seek a means of escape today. Charles Fforde is intransigent and Henry Murdo’s wishes unfulfilled.

Who were the RACCE committee members in 2015?

During the deer management inquiry late in 2013, Alan Cochrane, columnist for the Daily Telegraph and Scottish Field, quipped that we were all a bunch of townies, or words to that effect. Membership of committees change, but even then, I retorted that three of the committee members were farmers and from farming backgrounds while four of the nine represented rural constituencies. We were small town and country dwellers and in close touch with the issues in hand.

Following the 2014 change of ministerial posts with the Nicola Sturgeon reshuffle we gained a former Labour minister and a more recently former cabinet secretary. My colleagues had a wide range of experience in land issues. Three represented the South of Scotland, three, the Highlands and Islands and one each from Lothians, Falkirk and Angus. We spanned the country and several of us had seen service in three sessions of parliament and two with four terms’ experience. That gave us a depth of knowledge of the important empowerment and land reform bills we were to shepherd forward.

Claudia Beamish, a Labour Regional MSP for South of Scotland had been a primary school teacher and had a keen interest in environmental issues.

Sarah Boyack was a Labour Regional MSP for the Lothians, having formerly sat for Edinburgh Central. She was an Environment and Transport Minister in Donald Dewar’s first administration. Her background as a town planner brought precision as to acceptable proposals that would stand the test of ministerial scrutiny.

Graeme Dey SNP MSP for Angus South had been a journalist by profession before arriving at Holyrood in 2011. His role as my Deputy Convener was invaluable as he could concentrate on important details and advice while I kept the show on the road from the chair.

The Rt Hon. Alex Fergusson, Conservative and Unionist MSP For Galloway and West

Dumfries, had been elected in 1999. His sheep farming background gave him considerable rural questioning skills and his chairing of the Rural Development committee in Session 1 of the Parliament included his stewardship of the Agricultural Holdings (Scotland) Act of 2003. He was elevated to Presiding Officer in Session 3 from 2007–11 which added new insights and gravitas to his ‘one nation’ Tory perspective. Unfortunately, he died in the summer of 2018.

Jim Hume was elected as a Lib Dem Regional MSP for South of Scotland in 2007. His policy briefs had been widespread in what had become a small party group. His family background in farming and experience as an NFUS officer brought very useful skills to the table.

Angus MacDonald was elected SNP MSP for Falkirk East in 2011. Originally brought up in the Isle of Lewis, he had been a Falkirk councillor from 2004–11. With his farming and butcher’s business background he was well acquainted with land and crofting issues.

Mike Russell was elected SNP MSP for Argyll and Bute in 2011 where he lives. He had two previous spells in 1999 and 2007 as a Regional MSP for South of Scotland. His background in politics as SNP chief executive in 1990s and in cultural roles previously gave him a hugely articulate grasp of Scottish political issues. His ministerial role included environment in 2007 and culture and international relations in 2009 followed by cabinet membership for education until 2014. Resuming a backbench role in RACCE allowed his ministerial experience full scope to probe and develop many aspects of human rights and land use issues.

Dave Thompson was first elected an SNP Regional Member for Highlands and Islands in 2007 and then in 2011 as constituency MSP for Skye, Lochaber and Badenoch. His earlier career in consumer and trading standards took place in the Western Isles and Highland council areas. His attention to detail was essential to his election in 2007 during a miscounting of the regional votes. As an MSP for a vast rural and island seat he brought persistence and forensic skills to the committee’s work.

Stage 1 began appropriately in Portree, Isle of Skye

In 2006 a plaque was unveiled at the front door of Portree Hotel and a re-enactment was made of the speech in 1887 by Michael Davitt, the Irish Land League leader, from the hotel balcony. A few words from Davitt's speech strike a chord:

my advice to the people of Portree and the people of this island is, not to be satisfied with

half measures of change, but to go in for what is your just and your natural right, the

ownership of the land of Skye for its people.5

It was fitting that RACCE should meet in Portree to start the bill scrutiny.

On a fine early autumn morning mists rose to reveal the Cuillin Hills to our modern-day land reformers who could be excused for not recollecting land struggles in the 1880s, as I did. These widespread acts of civil disobedience in Skye had produced such compelling testimony that Liberal Prime Minister William Gladstone agreed to curb the powers of croft land proprietors on behalf of the newly enfranchised male crofters by introducing the mould-breaking 1886 Crofters Holdings (Scotland) Act. An echo of those pioneering land reform days was in my mind for two reasons. Firstly, the Napier Commission heard its opening evidence session in May 1883 six miles from Portree in the schoolhouse at Braes. Secondly, the Crofters MPs voted against the subsequent 1886 Act because it did not return the land to the people from whom it had been taken.

Our witnesses would include academics, sceptics and naysayers, but also advocates of

comprehensive land reform and campaigners from the Our Land campaign. When the first witness came before Lord Napier he asked to give evidence in Gaelic. This was granted and marked a breakthrough for the identity and dignity of the witnesses before a Royal Commission. In a present day echo RACCE would ensure that the Land Reform Bill 2015 included a clause ensuring that one of the new Land Commissioners would be a Gaelic speaker, as had the Land Court, furthering the spirit of the Gaelic Language (Scotland) Act of 2005.

I gladly dashed indoors after a midge-infested interview outside the Aros Centre where Mark

Steven and Euan McIlwraith quizzed me for BBC Scotland’s Out of Doors programme which was to fully chronicle the bill’s progress over the coming months. I was also delighted that the Official Report of the day’s evidence was heard by around 70 members of the public in the hall. Cuillin FM presenter Andy Mitchell recorded the proceedings for later transmission through the local radio for Skye and Lochalsh.6

After the hearings in the late afternoon, Graeme Dey MSP, my Deputy Convener, who had driven to Skye the previous day, gave me a lift back to Edinburgh with our colleague Angus MacDonald. I had arrived in Skye by train and bus from my home in Easter Ross. Under clear blue skies on the return journey I had the leisure to look at many hills I had climbed years before. I could see how empty so much of our country was all the way through Kintail, Lochaber, Rannoch, Glen Dochart and on to Callander.

Our political task was to address such resource issues and try to turn around that sad

outflow of people and find ways for more of us to live sustainably across the length and breadth of Scotland. I was truly awed by the size of the task that our journey reminded me of.

Fact-finding across Scotland

RACCE members had taken in a significant slice of Scottish life in the rural communities we visited throughout the session from 2011 and on the fact-finding visits planned specifically to explore aspects of the bill. Groups of members had been to Gigha, Bute (as mentioned above), Flanders Moss, Glenlivet, Deeside, Montrose and Lochaber in previous years. Matters of concern in many of these areas were germane to aspects of the draft bill.7

Our visit to Falkland took in the concepts of land stewardship as practiced by Ninian Stuart and at the Kinghorn Community Land Association and its Ecology Centre developing the local potential of the land around Kinghorn Loch.8 Two focused visits on tenant farming exposed the diversity of conditions, and the similarities of relationship problems, shared by farmers in Islay and the Scottish Borders. The outlook of Lord Margadale and the Duke of Roxburghe respectively, the major landowners, provided us with first-hand accounts of the divergent views of tenants and lairds on the need for greater clarity in the bill as published. Bute, Islay and the Scottish Borders are landscapes dominated by tenant farming. Tenant farmers were the backbone of these communities and anything which strengthened their rights would have a direct bearing on sustaining populations there.

We had previously received details of the precarious condition of tenant farming on the four Islay estates. Frustrations with the estate management left us certain of the current imbalance of power between landlords and tenants. It was a theme that would be amplified in discussions that autumn on human rights to land, food and housing. On Jura and on the Roxburghe Estate major criticisms were voiced over the planned clauses to end the exemption from sporting rates which had been in force since 1995.9 Initial evidence received at the Skye hearing stressed the need to speed up and deepen the map-based registration of our land. Our visit to Registers of Scotland HQ in Edinburgh led to searching questions in some members’ minds as to the need for a much-enhanced section on transparency in the bill.

Our last fact-finding mission took us, on 2 November, to Dumfries with a Q&A session

between RACCE members and a far from sympathetic audience of over a hundred people. Many of them stayed on to hear the formal committee session with the land reform minister Dr Aileen McLeod MSP. These informal, and later formal, committee events raised some tetchy issues for several farmers over the possible fate of their holdings if the community right to buy policy was to be applied. I reflected, on the return journey to Edinburgh, that there were many apparently contradictory implications of this huge bill that would require great patience and sound judgement by MSPs if we were to influence its final shape.

Seven evidence sessions grappled with the substance of the bill. The largest section, Part 10 on agricultural holdings reform follows below.

In committee – Agricultural holdings accentuated a deeply divided industry

From the outset, the Tory member of RACCE, Alex Fergusson made it plain that he would oppose Part 10 on agricultural holdings. Alex had attended several of the committee fact-finding visits around the country. This did not prevent him from probing witnesses to justify his party’s position before and after Stage 1 evidence sessions started on 2 September 2015.

In RACCE’s Stage 1 Report published on 4 December 2015 salient points on agricultural holdings were made clear. Extracts from paragraphs 402 to 406 are as follows:

402. Over half of the Bill relates to changes to agricultural holdings law… The changes are largely proposed because of the work of the Agricultural Holdings Legislation Review Group (AHLRG)… which reported to the Scottish Government on 27 January 2015.

403. Scrutiny of agricultural holdings issues has been a central theme of the Committee’s

work in this session. The Committee has scrutinised primary and secondary legislation on

the issue; held many evidence sessions with stakeholders and the Scottish Government; and carried out a significant number of fact-finding visits to meet tenants and landlords across the country. In that time the Committee has developed a greater understanding of the views of both tenants and landlords from different parts of the country, and the various challenges facing the tenant farming sector in Scotland.

404. The Committee therefore approached its scrutiny of the provisions in the Bill by

assessing them against its fundamental desire to see a healthy, thriving tenant farming

sector in Scotland which delivers real public benefits… The key question is: will the

provisions in the Bill help to deliver that desired outcome?...

405. The Committee also examined the provisions from the perspective of compatibility with ECHR and other human rights instruments. The fact that the Committee scrutinised this Bill at the same time as it continued to deal with the very unfortunate aftermath of the Salvesen v Riddell judgement by the UK Supreme Court, which found that a specific section of the Agricultural Holdings Act 2003 was not compatible with ECHR and therefore out with the Parliament’s legislative competence, was not lost on the Committee. It would not serve anyone well if provisions were passed in this Bill which went on to be successfully challenged in the courts.

406. It was clear… that the issue of human rights is being very keenly felt by all sides of the debate and that many stakeholders feel that ECHR issues are overshadowing the process and causing nervousness and tension. 10

Of land in farming at the time, a slight increase in acreage was noted, but the LRRG also

provided a clear picture of the owner/tenant divide. Taking figures for 1990 and 2013, the land in farming rose from 5,622,323.0 to 5,670,391.0 acres in use. In tenure terms, 62.09% had risen to 75.91% owner occupied over the 23 years surveyed while the land tenanted fell from 37.91% to 24.09%. No amount of special pleading by landowners could disguise the steady increase in land owned and the decline of land under all types of tenancy to a ratio of 4:1. That had seen land re-let as less secure tenancies and land farmed in hand when a tenant retired without a successor. These were contributory to the feelings of desperation voiced by the STFA on behalf of its beleaguered members. Threats to landlords’ rights were given as perennial reasons why this was so and the SLaE spokespeople talked up the idea of a ‘healthy tenanted sector’ but refused to see any reduction in the rights of landlords to repossess their property from a dwindling number of secure tenanted holdings.

An example of SLaE tactics had been a call in June 2012 by board member Andrew Howard,

the factor of Forres-based Moray Estates, for each farming sector to take a step back and look at the bigger picture and ‘stop trench digging’.11 An SLaE survey of 20 of Scotland’s largest landowning businesses stated that let farmland showed 70% under agricultural holdings laws. The remainder was farmed in hand or under contract. Of the 449,445 acres they surveyed, SLaE had ‘no information on how that (balance) had changed in recent years’. The lairds claimed that this contradicted recent political and industry views that big landowners had surplus land to let. Although Mr Howard admitted that there were estates, at the extreme end of the spectrum, that may not have been letting land this would amount to about 10% of the all let holdings. If land were to be made available for let, then these large land owners would have to offer land they farmed in hand, said Howard. Additionally, senior SLaE policy officer, Andrew Midgley, stated ‘there is no evidence of their land

sitting there being underused’. In contrast to the vast majority in Scotland’s Parliament he argued that landowners were being ‘implored to do something that is not in their interests’.

The most potent example of that age-old landowner stance was the move to widen the

range of assignees and successors to 1991 secure tenancies now contained in the Land Reform Bill 2015, Part 10, Chapter 5. Andrew Howard gave oral evidence at Stage 1:

What the bill needs to aspire to is ensuring that the agricultural holdings framework is see as a perfectly viable and attractive option for someone who does not want to farm the land themselves at that time, whether they are a large landowner or someone who is currently an owner-occupier farmer. At the moment, the option of creating a tenancy is not being taken up, even if, in all other circumstances, it might suit that individual, and other structures such as contract farming or share farming are being used because of concerns over the politicisation of the agricultural holdings system.

I felt I had to respond as Convener:

Well, it is politicising the agricultural holdings system to suggest that we should consider

contract farming when it has been rejected as an approach in Scotland. We can use the word ‘politicisation’ in lots of ways, and we should be careful about doing so. We have been trying to find a way through this maze and are trying not to be too partisan in our language, but the word ‘politicisation’ is quite partisan. I can assure you that we are aware of what is being said.12

As already noted, the widening of the list of those entitled to assignation or succession was a flash point.

SLaE objected…claiming it was an unwarranted and unjustified extension which would be

disadvantageous to landlords and represent a significant loss of their rights. It was felt by some that widening assignation and succession rights would also be a disincentive to investment and counterproductive to the aim of encouraging the letting of land…

Andrew Howard [who] said the bill was trying to force land to remain in tenure rather than looking to create a flexible, modern tenanted sector and that landlords would be deprived of land they previously thought they would get back at some stage. He also said that this would not help new entrants as it would lock land into permanent tenure, regardless of productivity.

He added that, if passed, these provisions were likely to be challenged, and said there was a lack of acceptance that sometimes a tenancy should be able to end, even if a tenant does not want it to.13

SNP grassroots revolt

Issue by issue the RACCE committee explored responses on agriculture, sporting rates, deer management and human rights before the recess when SNP members gathered in Aberdeen for the party’s annual conference on 15 to 17 October which included a land reform resolution on the agenda and on the unofficial fringe as well. A huge attendance was expected and the vote on Resolution 15, ‘Empowering communities and the road to radical land reform’, on Friday 16 October

was to engage 1,010 delegates in a card vote on the subject.

The mood of delegates was restive following a previous card vote to uphold the moratorium on fracking. Leith branch’s proposals were seen, by some, to be too timid. An outright ban was called for from the floor. However, the Scottish Government view prevailed in the card vote. The timing of the land reform debate which followed immediately could not have been worse for a rational appraisal of its contents. Lodged in the names of land reform minister Dr Aileen McLeod and local government minister Marco Biagi, it read:

As we continue to make significant progress towards our target of one million acres of land in community ownership by 2020, Conference welcomes the passing of the Community Empowerment Act and the introduction of the Land Reform Bill.

Conference notes that the Community Empowerment Act represents a momentous step in the drive to decentralise decision and give people a stronger voice in their communities; notes the act will give communities more powers to take ownership of land and buildings, in both urban and rural areas, and to actively shape and influence how their services are delivered.

Conference also welcomes the introduction of the Land Reform Bill which aims to ensure the issues of fairness and social justice connected to the ownership of, access to and use of land in Scotland are given permanent footing with the creation of a Scottish Land Commission.

Conference believes that, when people have greater control of their own future, they are

more engaged and are able to tackle barriers to making their communities more resilient,

sustainable and therefore wealthier and fairer.14

In the debate that followed, the mood of discontent became immediately apparent. Loud

applause followed the first speaker’s charge that the bill lacked radical content. The previous

evening, Channel 4 News had aired critical examples of land grievances. The item highlighted lack of tenancies and housing on Islay. It also featured limited partnership tenant Andrew Stoddart whose East Lothian holding was due to be reclaimed by his landlord the following month.

After the minister, Dr Aileen McLeod, the next person called to speak was highly critical of the motion. Nicky Lowden MacCrimmon of Carse of Gowrie branch pointed to the 750,000 acres held in tax havens and tenant farmers without a right to buy as glaring examples of what was missing from the bill. He concluded his call to remit the resolution back to its proposers with a clarion call that garnered huge applause from delegates:

I don’t think as a party we are being as radical as we have the powers to be. When you

[offer] radical land reform then we’ll sign up to it.

Despite pleas from RACCE member Mike Russell and the Minister Aileen McLeod a card vote delivered a defeat for the government view by 570 votes to 440.

The BBC reported that a number of delegates to the SNP conference said they wanted to see a strengthening of the bill. In response to those calls, Dr MacLeod told the BBC:

I welcome the very strong contributions made in the debate and the passion and

commitment that they have been delivered. I am listening to all the comments and evidence made thus far to the rural affairs committee [at the Scottish Parliament].

This bill is not an end in itself and as a government we are committed to taking forward the recommendations of the land reform group.

The bill will put to an end the stop-start nature of historic land reform. I want to give you my reassurance that I am listening as to ways in which we can strengthen the bill further. 15

Lesley Riddoch questioned why the media had not probed deeper. She had joined up with land campaigner Andy Wightman to hire the Aberdeen Arts Centre for an unofficial fringe meeting to which it was said several hundred delegates attended. Riddoch and Wightman claimed that an official fringe venue was too expensive and by that vehicle promoted their views defining radical land reform to many SNP members who attended.

The Scottish Government was, indeed, shocked. Though it would not derail the bill, it did

give campaigners extra leverage to claim that a grassroot SNP member revolt was a ‘new force in Scottish politics’. MacCrimmon told Riddoch:

I take it very personally when the SNP is characterised as feart or bottling it on radical land reform. I know this isn’t how people feel in my branch or on social media. What I stood up and said was what other members had been saying to me.16

In my view, as the RACCE Convener, the tenor of the criticism of the Land Reform Bill was

more complex. As the vote was being counted laboriously, I was angry that the spirit and letter of the resolution had been ignored in favour of calls for so-called radical action. I was aware that the fracking debate had set up a hostile mood in the conference hall. Both subjects are a good deal more complex to deliver than through sloganising but the delegates’ mood was for delivery of radical proposals. Time would show that the SNP Government’s tactic of further study and an extended fracking moratorium would lead to an effective ban within the limited powers of the devolved administration taking an anti-fossil fuel stance. The SNP’s renewable energy policy which Scottish planning powers had allowed to be deployed were indeed radical but not such a flash point for delegates as fracking or land.

The social media focus of dissent on land reform by party members opposed to the SNP leadership’s stance hid the failure of those keen on change to digest the limits of legal powers available to the Scottish Government. Compelling land held anonymously in offshore tax havens was complex. Offering tenant farmers security of tenure was fraught with memories of the recent use of ECHR by landlords. In contrast, the Andy Wightman advocacy of a thorough-going land reform programme as set out repeatedly in his books had big traction for activists. The Our Land campaign that summer had exampled derelict land in Granton, Edinburgh and raptor killings associated with grouse moor management. The plight of a small but vocal group of limited partnership tenant farmers piled up grievances in the summer of 2015. Stung by the narrow No vote in 2014, many Yes supporters sought ways to change Scotland’s glaring land ownership as an instalment towards their hoped for, free and fair Scotland.

There was a second strand which Lesley Riddoch touched on internally for the SNP. As she

put it,

an influx of members [since the 2014 No vote] has encouraged a ‘loosening of the stays’ at grassroots level which is democratising and challenging the top-down style of leadership in the SNP. 17

I saw this in two associated aspects of the debate. It was true that the party’s mechanisms to discuss policy development had been in abeyance. The party constitution made provision for National Assemblies to be led by the Deputy Leader. Interested party members should debate policies and recommend how National Council and Conference should adopt and vote on new policy proposals. Even so, party members could not instruct the Scottish Government but it could make clear the direction SNP activists expected to see. I have little doubt this policy vacuum led directly to the inchoate cry for more radical land reform that I saw in the remitted land reform resolution in Aberdeen.

I use the word inchoate advisedly because my second strand of argument is this. Try as I might I could not find evidence of SNP members contacting their MSPs to demand more specific radical actions. I asked my SNP colleagues on RACCE, had they been approached? They could not identify calls by aggrieved SNP members with proposals to ‘beef up’ the Land Reform Bill. It leads me to question how our much-heralded, openly accessible, Scottish Parliament engages the voters. This seems to be mainly the preserve of those interested individuals and groups who respond to consultations. Of course, specific matters contained in public petitions do reach subject committees like RACCE, but no such petitions were lodged for MSP scrutiny on specific land reform issues at that time. Don’t get me wrong. I was not happy with the, alleged, slow progress. The lack of real localpowers of decision in the Community Empowerment (Scotland) Act 2015 is only a fraction of the

democratic deficit which Holyrood must address. The rhetoric of community empowerment and far reaching change could spark engagement by local people. Certainly, policies for radical change have to be made law, but the wider media debate has seldom encouraged a real grasp of the intricacies. Mainstream media focuses on sound bites in news schedules. These tend to preclude enough time to cover complex issues adequately, such as land reform.

Subsequent interpretation by land campaigners on the bill’s progress tended to hark back to that conference blow to SNP leaders and claimed that the remit back vote had been the primary spur to action for my MSP colleagues. Did it push us to strengthen an already radical measure, a measure that sought to put land reform on a permanent footing in Scottish political discourse?

Shooting rates to return

As part of the bill, introduced by Richard Lochhead and supported by Aileen McLeod on 22 June 2015, Part 6 provided for the valuation of shootings and deer forests by the assessors to levying nondomestic rates. Part 8 proposed further functions for deer panels which advise SNH. Regarding DMPs, it was intended to give SNH new powers to enforce these and increased the maximum fine for the offence of failing to comply with a control scheme. The increase was to level 4 on the standard scale to £40,000. This sent a clear signal of a toughening attitude by government to deer managers and other shooting proprietors.18

In consulting the bill, 71% of those who answered agreed with reintroducing shooting rates while 50 of 51 landowning organisation were opposed.19 Regarding further deer management regulation, of 883 respondents, 76% responded to this question and 69% agreed. Again, individuals supported tougher deer plans while landowners and professional bodies such as land agents were heavily opposed.20

In its Stage 1 Report, RACCE commented on the lack of clarity of the approach to

reintroduction of shooting rates; it sought ‘thorough, robust and evidence-based analysis’ and felt the need for these before it could support Part 6 at Stage 2. The committee sought possible improvements to the tax that might allow rates relief to those who could demonstrate effective deer management in the public interest.21 Such clarity could perhaps have helped end the stalemate in Assynt.

Regarding the bill’s Part 8, RACCE noted the proposals happily took the line of the

committee’s 2014 Inquiry. The bill highlighted lack of progress to deliver Deer Management Plans (DMPs) and their negative effect on the 2020 Scottish Government biodiversity target. If the 2016 date for producing working DMPs was not met, then the Scottish Government must quickly replace ‘the failing voluntary system’. RACCE sought amendments to enable SNH to set cull targets for individual DMGs; to require landowners to apply to SNH for licences to cull; and, to enable SNH to take over culling responsibilities. Additionally, an urgent need was raised to build a DMG structure to tackle Lowland deer issues and for the proposed Scottish Land Commission to provide the necessary leadership.22

The in-depth work on deer management by RACCE in 2013–4 had given considerable weight to our recommendations, and the Scottish Government response to the Stage 1 Report, which was published early in 2016, acknowledged this. More information on shooting rates was promised in time for Stage 2. The voluntary deer management system, with the 2016 deadline for DMPs, would be underpinned by a commitment to enact Part 8 clauses during 2016, ahead of the deadline, not thereafter. Members of RACCE were well satisfied, in the main, with these responses.23

At Stage 2 of the bill hearings in Scottish Parliament committees, amendments are tabled by individual MSPs and by the Scottish Government. In Parts 6 and 8 some debates ended due to government assurances without a division. Others were voted on. True to form, Alex Fergusson tried to remove the reintroduction of shooting rates and was rebuffed by seven SNP and Labour members with only the Lib Dem member, Jim Hume, joining the Tory member. Mike Russell withdrew a probing amendment when he was assured that normal application of rates relief could reward good deer management in the public interest.

Labour’s Claudia Beamish sought to introduce a power for SNH to serve notice on a

landowner not complying with the Code of Practice on Sustainable Deer Management. The

amendment was disagreed to by two votes to six with one abstention. Whereas Mike Russell’s amendment for SNH to request details of the number of deer landowners planned to cull in the following year gained eight votes in favour with one abstention.

As for DMPs, Mike Russell withdrew his amendment that had proposed SNH should keep a public register of DMPs thus allowing local input before plans were finalised. When his amendment was debated to allow SNH to modify DMPs with the increased fines for non-compliance with DMPs to fall on the landowner who defaulted not on all other members of the DMG, it was agreed to by eight votes in favour with one abstention.24

On 16 March 2016 the LRSB would reach Stage 3. Amendments passed by the parliament clarified matters given the assurances by ministers at Stage 2. Among them was leeway for assessors to have regard to such factors relating to deer management as these assessors considered appropriate, in other words Mike Russell’s suggestion that rates relief could reward good deer management practices. Regarding Part 8, details were firmed up to review compliance with the Code of Practice on deer management. Also, powers to require returns on numbers of deer planned to be killed and powers for SNH to require returns of these numbers planned to be killed were included in the final bill.25

Speaking in the Land Reform Scotland Bill at Stage 2 in the RACCE committee I made the

following points on deer management as Convener:

The last report (in 1963) of the Red Deer Commission complained that lack of co-operation from farmers and landowners could cripple it in its task, which is to reduce the red deer population of the Highlands to manageable proportions.

The matter is even more pressing today, as there is a much wider range of landowners.

Some of them, such as community land trusts, are small; some are non-governmental

organisations; and some are shooting organisations. It seems that deer management could, in areas of crisis such as Assynt in my constituency, bear down on a community trust, which has need of a small income, rather than on people who shoot for pleasure and therefore have no likely pecuniary interest in carrying out the culls that are necessary, or on an NGO such as the John Muir Trust, which has a stated national policy of not allowing fencing and so on in areas in which there are threats to trees.

I understand that, in the circumstances of this debate, we must take into account the

realities on the ground, but the view of Major Crichton Stuart in 1963 suggests to us today that we cannot wait any longer for action to take place.26

Most members agreed to the return of shooting rates and that deer managers were on notice that tougher action would be taken if non-compliance with statute could be proved. This produced the usual divided response between conservationists on the one hand and landowners and land agents on the other. A solicitor told me he was looking forward to the appeals by landowners against assessors’ valuations for shootings. He recalled that these hearings had been of considerable entertainment value before Michael Forsyth abolished shooting rates in 1996. The smell of tweeds and labradors was alluring.

The reintroduction of shooting rates was a popular matter for many across the country who were determined that land taxation would not stop there. As for the actual regulation of local deer management, as in Assynt, that was yet to be tackled successfully but Forest Enterprise Scotland has helped fund fencing for small blocks of threatened trees.

This was a small step in reclaiming revenue from landed assets which affected all sizes of land holdings. However, Martin Birse, who manages Pitganeny Farms near Elgin and at the time was Highland Regional chair of NFUS, told the P&J, when he had received his shooting rates notice,

This is yet another cost to be borne by the farmers and landowners – where will it end?27

The sense of entitlement seems to know no bounds.

Human rights debate rivets MSPs

Probably the most fascinating evidence session of Stage 1 of the Land Reform Bill 2015 was held on 7 October 2015 when five witnesses contributed to a high-level debate over the impact of human rights in the proposed bill. The witnesses were Eleanor Deeming, Legal Officer of the Scottish Human Rights Commission; Kirsteen Shields, a lecturer at the University of Dundee; Megan MacInnes an adviser at Land, Global Witness; Charles Livingstone, a partner at the law firm Brodies; and Mungo Bovey QC, Faculty of Advocates. On rereading the Official Report I still see it as the most incisive and cogently argued evidence session we conducted in the bill process.28

The direction of debate broadened the base for land reform from ECHR to internationally adopted human rights covenants. Proportionality is key to using Article 1 Protocol 1 and Article 8 of ECHR. This was teased out to explore the tests that the courts would apply. Later in that two-hour session the full worth of ICESCR and VGRGTLFF were explored. There was a palpable sense that these United Nations measures would have a growing importance for more radical land reform in future.

As we shall see in the next chapter, the committee believed that the bill should be bold in its

ambition and clear in its purpose, in order for these issues, which undermined confidence and trust that people in Scotland have in the ownership, and use of land, could be settled for a good long time.29

Land Value Tax investigated

At the same time as our land reform bill scrutiny, investigations on applying Land Value Tax (LVT) had progressed from the LRRG report via the Scottish Government Commission on Local Tax Reform which reported in December 2015. According to its website the Commission brought together local and national politicians from different political parties and a range of expertise from across Scotland to look at ways of developing a fairer system of local taxation:

The Commission highlights that its very membership – encompassing four political parties, local and central government, and experts in public finance, law, housing, welfare and equalities – is a unique and bold statement of intent, creating an opportunity not to be missed.

The Commission does not advocate any single alternative to the present system, highlighting that ‘There is no one ideal local tax.’ In making the case for change, the Commission’s report shows that local taxation can be fairer and more progressive.

They examined three alternative types of tax system that could be applied at the local level to replace the present council tax – taxes on property, taxes on land and taxes on income. Their analysis extends to the potential impact of each on different households and how the tax might be administered. They also considered the impacts each would have on the financial accountability of local government, concluding that ‘A well-designed local tax system drawing revenue from multiple sources would provide more options for local democracy, delivering greater financial accountability and autonomy to local government.’

The intention was to aid the preparation of party manifestos for the 2016 Scottish Election. It was also clear that local income tax would be hard to collect and easily avoided. The conclusions on LVT stated:

The geographical impacts of a LVT would be largely similar to a property based tax, although our analysis has found a likelihood of higher tax bills per square metre of land in valuable city centre locations and lower liabilities in outlying and rural areas. The actual liability for a household will depend on the amount of land owned and the planning permissions that exist on that land, as well as eligibility for any discounts, reductions or exemptions. 30

This remains to be fleshed out, but as a departure from the unpopular council tax it is an increasingly popular focus. Indeed, the SNP Annual Conference in October 2017 was told by the Finance Minister, Derek Mackay, that LVT would be investigated in depth by the Scottish Land Commission. It could cost farms and estates more than council tax at present, but at last taxation of land was placed firmly in government discussions. Since no one likes paying more taxes the sales for any conclusions will need to be seen to be fair, in the public interest and for the common good.

RACCE deliberate

RACCE took a month of meetings to deliberate into early December 2015 to agree our Stage 1 Report on the Land Reform Bill of 2015. It contained 575 closely argued paragraphs. The Scottish Government response was awaited but deemed too complex to be tabled ahead of the Stage 1 debate in the Holyrood Chamber on 15 December.


1. RACCE, ‘Stage I Report’ , see Infographic

2. Independent assessment of Scottish Government land reform bill consultation results

3. Henry Murdo, Submission 33, RACCE call for evidence, LRSB

4. Charles Fforde, Submission 188, RACCE call for evidence, LRSB

5. Michael Davitt, speech in Portree, 1887

6. RACCE OR, 7 September 2015

7. RACCE, Stage 1 report, December 2015

8. Ibid.

9. ibid.

10. ibid.

11. P&J, 14 June 2012

12. RACCE OR, 16 September 2015

13. RACCE, Stage 1 report, December 2015

14. SNP Annual Conference, October 2015

15. BBC Scotland News, 14 October 2015

16. Riddoch, The Scotsman, 15 October 2015

17. ibid.

18. Land Reform (Scotland) Bill 2015 Notes

19. Land Reform (Scotland) Bill consultation

20. ibid.

21. RACCE, Stage 1 Report

22. ibid.

23. Scottish Government response to RACCE Stage 1 Report, January 2016

24. RACCE, Stage 2 debate, Mike Russell and Claudia Beamish

25. Scottish Parliament OR, 16 March 2016

26. RACCE OR, 3 March 2016

27. P&J Farming, 21 October 2017

28. RACCE OR, 7 October 15

29. RACCE, Stage 1 Report

30. Scottish Government Commission on Local Tax Reform

Top left, RACCE members, Eleanor Scott talks with Henry Murdo, passing Sligachan, Skye.

Bottom left, Rob view on Jura, half the population of Jura at RACCE hearing, RACCE members meet Kinghorn Loch community group.

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