Land Reform takes off - 1999 to 2011

Land reform takes off

1999 to 2011

A remarkable degree of agreement is now developing about what needs to change and about the broad approach which should be adopted.

Rt. Hon. Donald Dewar MP, John McEwen Memorial Lecture, 1998

The reform ideas proffered to the incoming government that had been elected to the new Scottish Parliament in May 1999 contained lengthy to-do lists from various activists and political parties. The accumulated wisdom of decades of activism, in addition to the pent-up expectation stemming from the two-question referendum result of September 1997, was about to collide with the art of the possible.

Referring to the Land Reform Policy Group (LRPG) consultation, Identifying the Problems, which was issued in February 1998, Donald Dewar cautioned optimists that

deciding on an initial programme of action will of course mean selecting from these options, but even if, after consultation, the list for immediate action is cut down by half or even more, there will still be a sizeable agenda for the Scottish Parliament to pick up.[1]

And the pace of reform in the first term of the Scottish Parliament reflected Donald Dewar’s caution. Identifying the Solutions focused on the abolition of the feudal system, rural land reform, crofting community right to buy (if necessary without a willing seller) and non-crofting community right to buy only with agreement of the seller and a world-leading right to roam law (and consequent pre-emptive rights and responsibilities for land holders and tenement dwellers). Separately, agricultural tenancy law was opened up to allow for new shorter assured tenancies to encourage new entrants and stimulate the sector. Access rights were fully legalised and two National Parks were created., the consensus for change was evident in the support for each measure by all parties – except the Tories. Their MSPs fought for the rights of the lairds and luridly described some reforms as ‘Mugabe style land grabs’. It was a promising start.

It takes several years for new laws – such as the Land Reform (Scotland) Act 2003 – to bed in, not least because literally dozens of pieces of Scottish statutory instruments (SSIs) have to be consulted, debated, enacted and put into practice by civil servants and government agencies. But the pace of land reform was also stalled by the slow decline of the second Labour and Lib Dem coalition. ‘Doing less better’ lost First Minister Jack McConnell the 2007 election and allowed Alex Salmond to form a minority SNP Government. But from the start, Salmond was subject to Labour jibes that the SNP was not interested in taking land reform to the next stage.

The Land Reform Review Group (LRRG), in 2014, reported examples of Scottish Parliament Acts containing land reform measures from the Labour-Lib Dem regime onwards. In the report, these measures are defined as provisions that modify or change the arrangements governing the possession and use of land in the public interest.

Ten of these were passed from 1999 to 2007 and three under the SNP government of 2007–11.[2] These three were the Crofting Reform Act (2010), which was required to tidy up the overly moderate 2006 measure, the Wildlife and Natural Environment (Scotland) Act and the Private Rented Housing (Scotland) Act, both enacted before the May 2011 Scottish Parliament election.

But that was far from the full picture. In 2007, the minority SNP government had relied on Conservative support to pass its budget. And this political irritant, ‘buying off’ the Tories, occurred as the major land and agricultural holdings reforms of 2003 were bedding in. By 2007, pressure to bring in crofting reform, a policy area that had long stalled, was taking up considerable committee time and resources.

In April 2010, to try and move things along, post-legislative scrutiny of the 2003 Act was commissioned at the behest of the Rural Affairs and Environment (RAE) committee and the Scottish Parliament Corporate Body. The Centre for Mountain Studies based at Perth College UHI, led by Calum Macleod, was selected to carry this out. They proposed improvements to the measures on access provisions, community right to buy and crofting community right to buy. They also set the study in its political context, concentrating on the three pillars of recreational access, community and crofting community rights to buy.[3]

However, critics still accused the minority SNP Government of having few new proposals for land reform. The most vocal critic, Andy Wightman, marshalled a series of historical land questions and confrontations to challenge the SNP. His proposals for land reform in his influential polemic, The Poor Had No Lawyers, had been worked on since the 1990s in close collaboration with Robin Callander and they contained wide-ranging moves such as repeal of the Prescription and Limitation (Scotland) Act 1973 which could cure defective titles to property. He also proposed a form of land value tax as an extended exemplar – the very same tax issue that had been body-swerved by the LRPG as requiring ‘further study’.[4]

Wightman accused the SNP of having given up on land reform. His critique of the SNP’s apparent unwillingness to pursue land reform rests on his interpretation of one parliamentary question (PQ) from 2009. In the book he adds the reference as a footnote and does not give Roseanna Cunningham’s answer in full. Reading the actual question and answer offers a different perspective:

Question S3W-24965: Elaine Murray, Dumfries, Scottish Labour, Date Lodged: 18/06/2009

To ask the Scottish Executive whether it is concerned that no more than five communities have acquired land since the community right to buy provisions of the Land Reform (Scotland) Act 2003 came into force.

Answered by Roseanna Cunningham (08/07/2009)

Forty-five community bodies have successfully registered an interest in buying land since the Land Reform (Scotland) Act 2003 was implemented on 14 June 2004. The number of community bodies registering in each calendar year is five in 2004; eight in 2005; nine in 2006; ten in 2007; 14 in 2008; and two in 2009. Within the above figures, one body registered separate interests in 2004, 2006 and 2008. A second body similarly registered separate interests in 2005 and 2007. Two community bodies are currently in the process of registering their interest and their applications are being considered by ministers.

These 45 community bodies have made some 74 registrations in the Register of Community Interests in Land. Some community bodies have more than one registration (a registration is made in respect of land owned by one landowner).

As the community right to buy requires a willing seller (it does not involve a compulsory purchase of registered land), there is no certainty that a landowner would want to sell the land during the period when a community body has registered its interest. The purpose of these provisions in the act is to provide communities with the opportunity of a pre-emptive right to buy the land in which it has a registered interest should the conditions of the right to buy be triggered. Community right to buy was never intended as the only way that communities achieve ownership of land.

The right to buy has been triggered in respect of 22 parcels of land relating to registrations held by 15 communities. While five registered communities have acquired their desired land using the full provisions of the act, an additional two have negotiated a successful purchase after having their interest registered. Beyond that, eight further community bodies had the opportunity to acquire registered land when it was offered for sale (i.e. triggering the right to buy) but failed to purchase. One community body has also successfully purchased, by negotiation, two pieces of land following approval of their application for registration under the act.

Experience of the practical operation of the community right to buy provisions led to revised guidance being published on 15 June 2009, which provides more hands-on advice on the required processes and procedures for community bodies, landowners, heritable creditors and third parties who may be affected by the provisions. A revised application form with provisions for re-registration, also came into force on that date.

The Land Reform (Scotland) Act 2003 has only been in effect for a relatively short period of time and we are continuing to monitor the community right to buy provisions. If there is evidence that the provisions are not working as Parliament intended, then a review of the act will be considered.[5]

The answer reads to me as the government departments were properly applying and adapting the extensive land laws passed in 2003.

This is a useful juncture to remind ourselves of Robin Callander’s definition of the three main components of land reform. The first is to reform property law, the legal system of tenure and transfer. The second is to reform administrative law, which includes a wide range of statutes and mechanisms to set up government bodies and environmental laws. The third is to reform the regulations and incentives to promote or control the use of rights over land such as grants and licences. Callander explains these as levels which build on top on one another. The base is the first component, which provides a framework of property law. By this definition, the limited scope of changes to the property law of rural land in the 2003 Land Reform Act immediately limited the advancement of primary legislation. The second layer can be exemplified by the setting up of National Parks by arranging a succession of land funds and enacting access laws. Many of financial incentives, rules for applying the right to buy etc, are examples of the third tier.[6]

Certainly, the areas of property law detailed by Andy Wightman in several publications would require considerable primary legislation preceded by an assessment of European Convention on Human Rights (ECHR) implications and statutory consultation preceding the full parliamentary process.

One can understand Andy’s impatience and see his painstaking research – extensive and sustained reviews of necessary policies required to achieve thorough-going land reform. He and others have often listed the programmes the government requires to modernise Scottish land laws. But Wightman’s polemic style takes no prisoners. From the claims made in his book, the SNP were back-sliding. And this is a black mark against any government no matter what the political and economic circumstances.

However, Wightman ignores the move by Minister Mike Russell in 2007 to take a few hundred acres on Rum from Scottish Natural Heritage (SNH) to kickstart a community body. Furthermore, after Wightman’s book’s publication, Russell’s successor Roseanna Cunningham took the bold decision, with ECHR implications, to grant the long-running Pairc buyout the right to buy as a hostile bid. This was the first under the 2003 Act and its saga would struggle through further court cases before the residents finally acquired the land in December 2015. Barry Lomas of Leamington Spa, the reluctant seller, had delayed a change-over of the land in exchange for nearly 13 years of expensive litigation. He negotiated a £500,000 sale price after the hostile bid was withdrawn at his request in 2014. Events and controversies consequent to the 2003 Act, such as Pairc, fuelled the clamour for further land reform action.

The final report of Calum Macleod’s team was published in September 2010. It set the parameters for subsequent commitments by the SNP in its Scottish Parliament election manifesto for 2011; to aid community purchases and provide a land fund. The report states:

We believe it is time for a review of Scotland’s land reform legislation. For example, we believe the current period for three months for communities to take advantage of their right of first purchase is too short, and we would wish to see it extended to six months. We will establish a Land Reform Review Group to advise on this and other improvements which we will legislate on over the course of the next five years. We will also establish a new Scottish Land Fund and will set out our proposals in this area by the end of 2011.[7]

The SNP responded in its manifesto by proposing a review of land reform thus far, with a commitment to establish a Land Reform Review Group to advise on this and other improvements which we will legislate on over the course of the next five years. The return of a majority SNP government in May 2011 brought this about.

The art of the possible and the political priorities of the law makers produced a decade of major change for the better. But it left me with the nagging doubts about the pace of the reclamation of our land needed to answer Donald Dewar’s parting shot in his John McEwen Memorial Lecture:

'We need to put in place arrangements so that further changes can be worked through and worked up. So that we can ensure that such legislation is not a one-off, but a down-payment.'[8]

References

1. John McEwen Memorial Lecture, 1998

2. Land Reform Review Group, 2014

3. RAE commissioned report, ‘Post legislative scrutiny of the Land Reform (Scotland) Act 2003’ 2010

4. LRPG, Recommendations for Action, 1999

5. Question S3W-24965 answered 8.7.09

6. Callander, How Scotland is Owned, Canongate, 1998

7. RAE commissioned report, ‘Post legislative scrutiny of the Land Reform (Scotland) Act 2003, 2010

8. John McEwen Memorial Lecture, 1998