Ruaig an Fhèidh

The Highlands and Islands loom large in any discussion of landownership and land reform in Scotland. One prominent silhouette is formed by the Isle of Lewis. It has a chequered history, involving the common Gàidhealtachd mix of clearance, resistance and eccentric lairds (the last being provided by the Mathesons and Lord Leverhulme, who built their respective fortunes on opium and soap).

The idea of resistance to landed power has been fortified (or perhaps sentimentalised) in Gaelic folklore and literature, examples of which can be found in the radical poems Ruaig an Fhèidh (“The Deer Drive”, poet unknown) and Bodach Isgein (“The Old Man of Eishken”, Donald MacCallum), both available in Donald Meek’s collection Tuath is Tighearna (Tenants and Landlords, 1995). These poems relate to the deer raid at Pairc, in the South Lochs area of Lewis. The raid was carried out by destitute cottars in November 1887, not long after the passage of the watershed Crofters Holdings (Scotland) Act 1886, for reasons of abject poverty as much as an attempt to prevent the creep of the deer forest into what was viewed as traditional lands.

Those au fait with Hebridean history would not have been surprised that two Lewis communities were the first to make use of the absolute right to buy provisions contained in Part 3 of the Land Reform (Scotland) Act 2003 (all statutory references are to this legislation unless otherwise stated). One community, Galson, was saved the legislative obstacle course by a capitulating landowner, allowing the sale to the community to proceed on a consensual basis. The second community may have hoped for a similarly steady course to community ownership, but any such hopes have been dashed. Fate may have decided it fitting that the community left to fight on was Pairc.

On 21 March 2011, Scottish Ministers decided everything was in order with The Pairc Trust’s application to buy part of the Pairc Estate from Pairc Crofters Ltd, a confusingly named company operated by an individual called Barry Lomas. As shall be seen, Lomas has not been a submissive transferor. He has been fastidious and litigious in exploring and exhausting any rights and remedies to prevent or hobble the sale. There are now indications that he is challenging the Scottish Ministers’ decision at Stornoway Sheriff Court, while simultaneously engaging in a judicial review action at Edinburgh in relation to Part 3 as a whole.

Legal background

Only a cursory look at the mechanics of the crofting community right to buy is possible here (more detail can be found in the author’s “Parts 2 and 3 of the Land Reform (Scotland) Act 2003: A Definitive Answer to the Scottish Land Question?” 2006 JR 195 at 208-209). Part 3 only applies to the crofting counties. It allows properly constituted crofting community bodies (who must comply with the formalities of s 71) to purchase eligible croft land, contiguous land and certain additional rights (ss 68-70), provided ministerial consent and approval by local ballot has been obtained (all as set out in chapter 2 of Part 3). Assuming the process is followed, the landowner is not at liberty to refuse to convey the land when the community furnishes the independently set price (valuation being provided for in s 88).

This is not the first time land disputes at Pairc have reached the courts. In 2004, a 75-year lease of the Pairc estate was granted by the landowner to an associated company, interposed between the landowner and the crofting tenants. The affiliate in turn granted a sub-lease over the common grazings to a developer for the erection of a wind farm. The developer’s rent was pinned to the installed capacity of the wind farm, but in terms of the interposed lease only a nominal amount was payable by the interposed tenant to the landowner. If the interposed lease was invulnerable to the application of Part 3, the community would have been denied a valuable income stream on acquisition of the land.

The Scottish Land Court was therefore called on to decide whether interposed leases are valid in the crofting context (they are); whether Crofters Commission consent is needed for such an interposal (it is not); and the ancillary point of whether watercourses on common grazings are “eligible croft land” for the purposes of s 68 (they are): Scottish Ministers v Pairc Trust Ltd 2007 SLCR 166. Aware of this avoidance scheme, the Scottish Parliament rendered the first two issues largely academic by enacting the new s 69A, introduced by the Crofting Reform etc Act 2007, which gives a crofting community body the right to buy the interest of an interposed tenant. Unsurprisingly, The Pairc Trust promptly sought to acquire this interest along with the land, with approval also being granted by the Scottish Ministers on 21 March 2011.

Potential arguments

Without wishing to prejudge any dispute that is, or will be, sub judice, it appears there are three possible arguments for the landowner to run. The first relates to human rights jurisprudence stemming from article 1 of Protocol 1 to the European Convention on Human Rights, which provides that “no-one shall be deprived of his possessions except in the public interest”. By any conventional analysis, a compulsory transfer with or without compensation is a deprivation, but would the deprivation be in the public interest? It is submitted it would. A line of authority going back to James v UK (1986) 8 EHRR 116 suggests that the forced transfer from one private citizen to another “in pursuance of a policy calculated to enhance social justice within the community can properly be described as being in the ‘public interest’” (at para 41).

What chance might a wider attack on the legislation itself have? Case law, this time domestic, is tantalising. In the Outer House case of Adams v Advocate General 2003 SC 171, Lord Nimmo Smith opined that traditional common law grounds of judicial review are not appropriate for Scottish legislation (in relation to the Protection of Wild Mammals (Scotland) Act 2002). The more recent Inner House decision of AXA General Insurance Ltd v Lord Advocate [2011] CSIH 31 was not willing to hold that there are no circumstances in which the Court of Session could strike down legislation of the Scottish Parliament on common law grounds, but the court did not regard the Damages (Asbestos-related Conditions) (Scotland) Act 2009 as a suitable candidate for judicial attack. Whether or not Part 3 is ripe for attack is pure speculation, but it is difficult to place what any such attack would be based on. (This and the human rights issue are discussed in the author’s abovementioned article at 209-211.)

Lastly, the landowner may trawl through the approval process documentation in an attempt to find some kind of administrative failure. If one is unearthed, the sheriff court decision of Hazle v Lord Advocate (Kirkcaldy Sheriff Court (ref B270/07), 16 March 2009) in relation to the Part 2 right to register provisions (giving a right of pre-emption to rural land) suggests that even slight flaws in the community’s documentation can scupper any statutory right. That is not to say that a re-application could not take place, but it may give the landowner a chance to unearth yet another obstacle to the purchase (see further the author’s “Access to Land and to Landownership” (2010)14 EdinLR 106).

Historic parallel?

Notwithstanding this serious test of the crofting community right to buy, it can be seen that Part 3 has had a definite impact on the pattern of landownership in the crofting counties. Places like South Uist, North Harris and Galson would not be owned by their respective communities had there not been the threat of compulsory sale lurking behind any negotiations.

The residents of Pairc have no choice but to show that the threat is not empty. The concluding verse of the poem Ruaig an Fhèidh still resonates today, where it notes that the people will not rest until they have won the estate with joy and honour. Fitting or otherwise, resonance with poetry and illicit deerstalking will only get you so far in 21st century Scotland. Is the same true of the 19th century? The Scottish Land Court decision of 2007 was not the first Pairc dispute to end in the courts either. In 1888, six raiders appeared at the High Court in Edinburgh for their actions. They were acquitted.