Launched, debated and approved in principle
We cannot roll back hundreds of years of history overnight and nor can we fix all problems in one easy step. However, we can and must focus on taking the next step in our journey.
Dr Aileen McLeod, Minister for Land Reform
It was a great moment in my tenure as convener of RACCE; at 10am on 4 December 2015 I launched the Stage 1 Report on the Land Reform (Scotland) Bill at Registers of Scotland (RoS) headquarters in Meadowbank House, Edinburgh. Our report ran to 141 pages and 575 paragraphs. It was detailed, complex and certainly not geared to sound bites.
Scottish Parliament communications staff had trailed details of the launch to the media and immediately BBC Radio Scotland sought a sound bite from me as RACCE convener to suit their news schedule before 8am on the day. I refused to budge from the planned event at 10 am held in front of a case holding the ancient Register of Sasines in RoS HQ. No BBC reporter attended the launch, unlike STV which sent a camera team. The BBC website, as predicted, later contained bullet points and minimal reaction that day. It stated:
The Scottish Government's Land Reform Bill needs to be ‘enhanced and strengthened’ to deliver the ‘radical changes needed’, MSPs have declared.
A report from the rural affairs and environment committee said the land management proposals need ‘more work’.
The bill was also rejected by delegates at the SNP conference in October, who argued it should be strengthened.
Landowners say the bill as it stands would have ‘far-reaching and detrimental consequences for business.’ 1
Take your pick, both sides in the land reform debate either praised or condemned our work. The October SNP Conference rebuff to ministers remained a repeated theme. The BBC, Daily Telegraph, CommonSpace and The National each included the delegate dissatisfaction with the bill. Lesley Riddoch ran with an old refrain:
The committee backed SNP conference demands to give tenant farmers greater protection and end offshore tax havens and secrecy designations which mask the identity of Scottish landowners. 2
It was necessarily a complex report which was not easily summarised. As previously highlighted, in consultations that preceded the bill, the most common asks of land reform included transparency, diversity of ownership and a supportive tax system. The RACCE conclusions aided certainty of delivery and progress to reach these asks in a more radical measure than any previous Land Reform Act. Arch-critics of the SNP Government, such as the editor of the West Highland Free Press failed completely to acknowledge this. Instead their crusty editor questioned whether the SNP Government was ‘really serious about land reform’. He suggested that the SNP’s aim was a ‘step back’ from the 2003 Act passed by Labour and the Lib Dems (with, lest we forget, SNP support):
In fact, many proposed clauses were set to strengthen parts of the 2003 act and build on them. There’s no getting away from the contrary nature of such a Free Press editorial! 3
On the very day of that editorial, the report ‘One Million Acres by 2020’ was published, following the work of the Scottish Government One Million Acre Short Life Working Group established in January 2015 which had operated in four work streams. They identified actions to raise awareness of the opportunities of land purchase; what support services were required; how engagement with communities should develop; they underlined Scottish Government must coordinate the process proactively; they suggested ways to increase the supply of eligible land; and offered means to measure and evaluate progress. 4 Surely this was the exact opposite of backing away from radical development?
Our committee was forensic in dissecting the bill and pointed to strengthening parts of it we deemed essential. Lesley Riddoch, from a campaigner’s stance did get closer to this fact:
Real change in Scotland’s concentrated and unequal pattern of land ownership moved a step closer,
she argued, not just because of RACCE’s measured critique but because some of the themes of the Bill did chime with ‘SNP conference demands’. 5 Lobbying of MSPs ahead of the Stage 1 chamber debate on 16 December produced the usual diverse advice. For example, more clarity was needed as community buy-out concerns lacked details, was the NFUS critique. On the other hand, Scottish Environment Link broadly supported the principles of the bill and much of the RACCE Stage 1 Report. They concluded,
We hope to see a strengthening, in line with our Stage 1 evidence, of many parts of the Bill amendments brought forward at Stage 2. 6
RACCE had shared the Devolved Powers & Law Reform committee’s views that far too much detail was consigned to regulations to be passed after the bill was enacted. Previous experience such as over the 2003 Acts showed that far-reaching measures would require dozens of secondary instruments to apply the principles set out in workable and detailed form.
Another concern was raised by some opposition MSPs. This was the failure of the ministers to respond to the Stage 1 Report ahead of the chamber debate; a point raised repeatedly before and during the chamber debate on the principles of the bill. 7 The land reform minister Dr Aileen McLeod opened by acknowledging the difficulties of responding to such a detailed report in a short 12 days. It would receive a full Government response in good time for amendments to be lodged for Stage 2 by both Government and MSPs. She then underlined the centrality of land reform to the Scottish Government’s programme:
We started this process with a good bill, and I know that we can make it an excellent bill. As the First Minister said last week at the human rights innovation forum, we in the Government ‘welcome the growing interest in the role that human rights … can play in achieving’ a ‘wealthier and fairer society’.
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.
She concluded by stressing the radical intent of the Bill but the constraints of tackling huge problems. This would be a big step towards wider goals:
We cannot roll back hundreds of years of history overnight and nor can we fix all problems in one easy step. However, we can and must focus on taking the next step in our journey. The bill will make a series of key changes to the way in which land is governed to ensure that responsible and diverse land ownership is encouraged and supported; that transparency of land ownership in Scotland is increased; that communities are helped to have a say in how land in their area is used; that a thriving tenant farming sector in Scotland is supported; and that issues of fairness, equality and social justice that are connected to the ownership of, access to and use of land in Scotland are addressed. 8
My own speech on behalf of the committee followed the Minister’s. I covered as many points from our report as I could in the allocated time. These timings depend on the length of debates which are agreed by the Business Bureau of the Scottish Parliament. Afternoons often see constrained timings even if the subject is complex. I had to cover the ground, so to speak, in a tight ten minutes:
Rob Gibson (Caithness, Sutherland and Ross) (SNP): The Land Reform (Scotland) Bill has generated a huge debate across Scotland about the very land that we stand on. The RACCE committee’s extensive programme of engagement ensured that the report that we are debating today was informed by as many views and experiences as possible. The huge response to that engagement is testament to how much the bill means to so many people.
The committee received 200 written submissions, held formal external meetings in Orkney, Skye and Dumfries and travelled to Islay, Jura, the Borders and Fife to hold public meetings to hear people’s views. Following that wide consultation, we have produced a constructive report that clearly sets out how to ensure that the bill fulfils its radical potential in practice. Supportive comments included those of Dr Calum Macleod at the University of Edinburgh, who wrote that the committee’s scrutiny and report ‘have provided a valuable public service in anchoring the Bill to land reform as “the art of the possible”.’
The bill is bold in its ambition and must be made clear in its detail. We share the Government’s vision for land reform in Scotland and support many of the measures in the bill and the principles behind them, but the bill needs to be strengthened and clarified to fully deliver the ambitious and radical change that many people want.
Before I go into details, I ask members to note that Alex Fergusson dissented from our conclusions on Part 10, relating to agricultural holdings, and on some specific issues in Part 5, on a new community right to buy, and that Jim Hume dissented from our conclusions on a right to buy for 1991 act tenants. Those members will no doubt speak for themselves.
Many parts of the bill have our full support, subject to recommended improvements, including Part 1 on the establishment of a land rights and responsibilities statement and Part 2 on the establishment of a Scottish Land Commission. Those are the most radical departures from previous Land Reform Bills.
A land rights and responsibilities statement must focus on land as a national asset for the benefit of all Scotland’s people. It must underpin the process by clearly setting out a fundamental vision for land reform that is rooted in international human rights obligations. The statement will underpin the Land Commission’s work on guiding Scotland forward on the land reform journey, year by year. However, the bill must be amended to ensure that the statement and the commission’s strategic plan and work programme are debated in and endorsed by this Parliament.
We want at least one of the commissioners to be a Gaelic speaker, as is the case with organisations such as the Crofting Commission and the Scottish Land Court.
We strongly support in principle, subject to recommended amendments, those parts of the bill on engaging with communities and giving them a right to buy land to further sustainable development.
To improve engagement between communities and landowners, which the bill seeks to do in Part 4, much more than guidance is required. Local people need to know who a person of significant control on behalf of landowners is. In addition, the consequences of non-adherence to the guidance must be spelled out.
Part 5 will introduce a right to buy to further sustainable development, but the Government must clarify whether that is intended to empower communities or to deter landowners. The proposed tests for communities are set at such a high level that amendments are needed to sections, such as section 47, to replace ‘the only practicable way’ with ‘the only or most practicable way’. In addition, the definition of harm must be broadened to include potential impacts on the community’s sustainable development objectives.
All committee members agreed that access to information is essential.
For many people, access to information is at the heart of our land problem. Evidence shows us that the proposals in Part 3 will fail unless they improve transparency and unmask some of the murky ownership models that exist in the world of shell companies, tax havens and trusts. Knowing who owns, controls and benefits from Scotland’s land is a basic human right.
The evidence underlined the fact that the bill does not go far enough to solve the problem. The bill must be strengthened so that information can be required rather than requested, and so that anyone in Scotland can ask for that information, as people in other European countries can. However, we need to go even further. We have asked the Government to consider several options, including requiring those who want to buy land to be entities registered in the European Union, requiring them to provide a Scottish contact point and requiring them to name those who will benefit from the ownership of the land.
Part 6, which seeks to reintroduce sporting rates, needs far more work. It is fair in principle to tax sporting estates and enterprises but, as the detail of the provision emerged, the Government’s case to see this as a money-raising exercise to boost the land fund was unclear. To convince us, the Government must provide a thorough, robust and evidence-based analysis before the start of Stage 2.
The deer management practices in Part 8 are deficient in many areas. It is in the public interest for the bill to strengthen SNH’s powers to ensure that it can take early action, if found necessary by mid-2016 review, without it having to wait for further legislation to be passed.
Provisions on agricultural holdings account for around half the bill and try to address hotly-debated issues and tenancy disputes that have existed in many communities for many years. Everyone agrees that we want a thriving tenant farming sector in Scotland, the big question is how we get there.
We support the bill’s aims of: removing barriers to 1991 act tenants buying farms; providing for forced sale of a farm if a landlord is in breach of the lease; introducing an amnesty for tenants, to note improvements that they have made; and tightening rules in cases in which landlords are seeking to make improvements to a farm.
However, other proposals are too often left to secondary legislation, such as changes to the way in which rent is set and measures to allow tenants to retire with dignity and to enable new entrants and young blood to come into the sector. We must have more detail on those provisions before Stage 2, because the annual drain on secure 1991 act tenants and the move towards limited duration tenancies fail to ensure tenancy security and sustainable agriculture.
The majority of RACCE committee members support giving 1991 act tenants a conditional right to buy their holdings, so that we can finally resolve a recurrent problem and move on. As ever, European convention on human rights issues need to be applied proportionately, because the long-term reduction in tenancy security is detrimental to human rights.
Other issues, which are not in the bill, should be considered at the amending stages, such as the future for small landholders, the often poor condition of tenant farmers’ houses and the lack of affordable rural housing more widely. We must resolve such issues, which are intrinsic to a sustainable rural Scotland in which people can live and work.
Many eyes are on this Parliament. People want to see whether we can deliver the land reform that they want. I hope that we can match the ambition of the Scottish people and change our relationship with land, so that everyone can feel connected to it, be involved in how it is managed and benefit from its use.
The bill is a good start and we hope that it passes Stage 1 today. However, members of all parties should realise the scale of the work that lies ahead and the role of international human rights in underpinning land reform.
We cannot ignore the warning by Scottish Land & Estates of huge financial penalties should land reform laws interfere with entrenched property rights. Is that landowner view legitimate? One witness, Kirsteen Shields, a human rights lecturer, thinks that it is not legitimate. The thrust of this radical bill and the temper of the committee’s report champion the interests of a fairer Scotland.
Ms Shields put it succinctly when she said: ‘the question should not be “Is it legitimate to disturb property rights?” but “Is it legitimate not to?”’ 9
My speech had been drafted and discussed with the RACCE committee clerks to cover the all ten parts of the bill. I had little space to spice up the content. But in places I gave emphasis where I could. Thereafter 14 speeches ranged across the parties’ views both from committee members and other MSPs. Some who spoke were there to make up the numbers and had little knowledge of the subject. A precis of these contributions gives glimpses of good ideas, wishful thinking and in a few cases downright opposition to any such land reform.
Sarah Boyack sought compulsory purchase orders for the creation of affordable housing as the LRRG had suggested.
Alex Fergusson believed that saving tenant farming would be a major goal with a ‘glorious prize to be won’ – the renewal of trust between landlords and tenants.
Nigel Donn, convener of the DPLR which had questioned why so much of the bill would rely on regulations after it was enacted. ‘Too much regulation too little detail’, and such powers in secondary legislation he described in waspish tones as ‘a substitute for thorough policy development’.
Graeme Dey emphasised that all parties agreed on the need for transparency of ownership, to be developed by amendments at Stage 2. Horror stories about the behaviour of land agents, he argued, would also require new powers for the Tenant Farming Commissioner to intervene.
Johann Lamont welcomed the aims of the bill but sought as little added bureaucracy as possible.
Angus MacDonald welcomed the Minister’s assurance that an amendment would ensure the appointment of at least one Gaelic speaker to the Land Commission as was the case in the Land Court.
Tavish Scott remarked that scrutinising such detailed work was extremely difficult at the tail end of a parliamentary session.
Dave Thompson emphasises that the bill was about bad landlords, not good ones. He took biblical, literary and historical quotes to back his case, including a riposte to the editor of the West Highland Free Press:
The editor of one of my local papers, the West Highland Free Press, seemed to doubt that the Scottish Government was committed to any kind of radical land reform. Well, the bill is radical. Once the Land Commission is created, it will consider land issues day in, day out, week in, week out and month in, month out for evermore.
John Lamont spoke as a true Borders Tory doubting the rules proposed for the sale of land which had been misused would be fair to existing landlords. Also, he opposed the reintroduction of shooting rates as a possible hit on local businesses.
Rhoda Grant welcomed the bill and concluded:
I hope that it will be greatly strengthened at Stage 2. If it is, parts of the country that have been ignored for far too long will be empowered to build their own futures, which will be of benefit not only to them but to all of us.
Interestingly Alison Johnstone pressed for the most rigorous transparency of ownership. She also quoted the Scottish Affairs committee report from Westminster in seeking an end to rating exemptions for forestry and agricultural holdings to add to reintroduced shooting rates, which Andy Wightman had been calling for.
Mike Russell ranged over the deer management mess, the human rights imperative, tenancy proposals that still gave too much power to the landlord and too little to the tenants and the continued plight of small landholders such as those on the Isle of Arran but he concluded:
The issues that the bill addresses are certainly emotive for some people, but they are emotive because they are about not only how people earn their living but how they live and have lived.
Scotland will be the richer if we engage more and more people in the issue of land and its relationship to our future. We will also be the stronger if we ensure that our legislation recognises that rights are about more than money and that equality and equity need to be embedded.
Jamie McGrigor pointed out that landlords contributed significantly to the rural economy and investment therein.
Hanzala Malik said he had
experienced land issues and land reform in different countries. It is a minefield, with so much confusion. In particular, land that has shareholders must be clearly defined in terms of ownership as well as value, because there is nothing worse than land disputes destroying families as well as businesses.
Jean Urquhart said:
There are many wrongs to be righted, and this bill is to be welcomed as the first step on that long road.
Christian Allard hoped, as a committee substitute member, that he could take part in the further development of the bill:
I think that we need such radical reform to update where we are and to bring us to where our European neighbours already are with land use and land reform. It is very important that the eventual legislation is seen as something that brings Scotland up to date and into the 21st century.
In the summing up speeches Murdo Fraser for the Tories gave his party’s predictable verdict:
At best, the bill will be a distraction from the real issues that face rural Scotland: depopulation, lack of connectivity, poor-quality jobs and the continuing loss of local services. Although there are some measures in the bill that we would support, overall, we think that it is more likely to damage than to assist rural communities. For that reason, we will not support the bill in the Stage 1 vote today.
For Labour, RACCE committee member Claudia Beamish offered strong support for the bill’s intentions. She said:
Let there not be a reason for the Scottish Government to run scared of the fairness that the bill will produce, but let us make it a clarion call to test and test and test the bill and its aims before and during the bill process so that we do not have problems with ECHR compliance afterwards. Let us not forget – as Mike Russell, Sarah Boyack and others have stressed – the other international human rights obligations that the committee examined in oral evidence.
Cabinet Secretary Richard Lochhead showed the Scottish Government’s commitment to radical change and development:
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.
Good landowners should have nothing to fear, but bad landowners – there are bad landowners in Scotland – will know that the law has empowered communities and individuals.
Of course, we need to know who the landowners are in the first place. We need to know who owns Scotland and people who own land need to know that they have not only rights but responsibilities. People and communities need to be empowered to act when those responsibilities are not fulfilled.
The bill and the committee’s report are milestones on Scotland’s land reform journey – a journey that started with feudalism but will take us to fairness. Those milestones will help to make Scotland a better country.
I urge Parliament to support the Land Reform (Scotland) Bill at Stage 1.
At decision time, a few minutes later at 5pm, the Scottish Parliament agreed to the general principles of the Land Reform (Scotland) Bill by 100 votes to 15 votes with no abstentions.
References
1. BBC New Scotland, 4 December 2015
2. Lesley Riddoch, The Scotsman, 5 December 2105
3. West Highland Free Press, 11 December 2015
4. Scottish Government, One Million Acres, Short Life Working Party report, 11 December 2015
5. Riddoch, The Scotsman, 7 December 2015
6. NFUS and SWT briefings, December 2015
7. Scottish Parliament OR, 16 December 2015
8. ibid.
9. Kirsteen Shields, ‘A tale of two kingdoms’, New Statesman, 14 December 2015, https://www.newstatesman.com/politics/staggers/2015/12/tale-two-kingdoms
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