The road to land reform, but where is it going?

Four months after the deadline for responses to the call for evidence of the Land Reform Review Group (LRRG), the first tangible output of the LRRG has emerged, in the form of an interim report published on 20 May 2013. Also published is an analysis of responses to the call for evidence. Both are available online.

The second of these documents is a little bland. No particular criticism is intended: it is difficult to make a distillation of “some people say X, whereas some people say Y” an exhilarating read. The first document, or rather the reaction to it, is anything but bland: more on that later.

Despite its apparently transient title, the interim report is the main event as things stand. It gives the first indication of where the LRRG may be headed in terms of its recommendations about land reform in Scotland.

What does the report say?

A word should be offered on the structure of the report, which has a commendable early acknowledgment about the background tensions to reform, primarily around (competing) human rights. The yin that is the apparently retarding force of article 1, Protocol 1 of the ECHR, which protects an individual from arbitrary deprivation or control of their property, is balanced against the yang of article 11 of the UN Covenant on Economic, Social and Cultural Rights, which guarantees certain rights such as sanitation, food and housing.

There are other points to consider and balance, such as human rights that afford people privacy and non-discrimination. Away from a human rights narrative, the benefits of economies of scale have to be balanced with the inherently harmful competitive effects of the abuse of a dominant position. These latter points are not explicitly mentioned in the interim report, but they are important to the overall debate.

Section 4 explores how land law reform can contribute to the LRRG’s three-pronged remit, namely to:

• enable more people in rural and urban Scotland to have a stake in the ownership, governance, management and use of land, which will lead to a greater diversity of land ownership, and ownership types, in Scotland;
• assist with the acquisition and management of land (and also land assets) by communities, to make stronger, more resilient, and independent communities which have an even greater stake in their development; and
• generate, support, promote and deliver new relationships between land, people, economy and environment in Scotland.

These will be looked at in turn.

1. Having a stake

At 4.1.1, it is apparent that the LRRG plans to look at ways to encourage more community involvement, away from hot spots like the “heartland in the North West” (p 16). Encouraging people to engage with existing laws and legal processes is all well and good, but it is education, not reform. Working out why existing law is not being engaged with should not necessarily be the role of the LRRG.

There is an indication at 4.1.2 that the LRRG will move its focus to urban Scotland. While this is non-objectionable, a Community Empowerment and Renewal Bill was planned before the LRRG came along. Urban and rural land reform are not mutually exclusive, of course, but if there already was an urban forum, making the LRRG an increasingly urban forum as well might distract from matters rural. This is something that is worth watching.

At 4.1.3, the LRRG focuses on existing initiatives, then devotes an appendix to the submissions of private estates on this point. Highlighting existing non-compulsory initiatives seems to steer away from actual reform. It is almost like the debate around press (non-)regulation or light-touch financial services management – can people who are in a position of power be trusted to play nice?

Regardless of how it is spun, private landowners are in a relative position of power. They own the land. If the interim report is indeed steering towards an acceptance that landowners playing nice is a way forward (which might be a legitimate direction), some of the more radical respondents to the call for evidence will be more than a little disappointed.

2. Community acquisition and management

At 4.2, the interim report looks at what challenges face communities looking to buy land, particularly the bureaucracy in part 2 of the LR(S)A. Many people have written about how idiosyncratic and evadable the right to buy (more accurately, right to bid) is (see Combe, 2006 JR 195). There was no need for a group like the LRRG to identify these issues. Making a right of pre-emption slicker and more understandable is all well and good, but it remains a right of pre-emption. Most of the LRRG’s points on the pre-emptive right are non-controversial and could be adapted into legislation fairly quickly without any policy shift in the law.

One point of particular significance is that there may be a move away from community-only processes, with a suggestion that community and charity partnerships could be used to acquire land (see 4.2.1). Shoe-horning communities of interest into a corporate embodiment of that community (namely a company limited by guarantee) can be characterised as artificial or cumbersome, so this suggestion seems welcome.

Perhaps the most interesting point to come out of the interim report is the idea of a Land Agency. This was proposed by Community Land Scotland. Apparently, the Land Agency would “facilitate the mediated negotiation of the sale of land to communities. In extreme cases where agreement cannot be reached, [Community Land Scotland] propose that a sale should be imposed, if it is in the public interest”.

In appendix C (pp 48-49) the LRRG notes: “The LRRG is aware of the sensitivities surrounding this proposal but it has the merit of both changing the culture of developing community ownership in a direction that could be less confrontational for the majority of purchases, while also addressing the difficulties posed by extreme cases where the public interest is not well served by the present arrangements. They believe therefore that it should be given further consideration.”

Rights of acquisition in the public interest were explored by the old Land Reform Policy Group appointed after Labour’s 1997 general election win. There was no such right ultimately legislated for in the LR(S)A.

What of crofting rights of acquisition? The interim report acknowledges that “Community Land Scotland is keen in its proposal about the Land Agency to develop a mechanism that will cover crofting communities as well as non-crofting communities.” It then goes on to note that the LRRG “will ensure that the interests of the crofting community are respected in any further proposals”. That is it. No word of expanding the Part 3 right of compulsory acquisition, so stand down any scare stories about deprivation.

3. New relationships with land

Paragraph 4.3 again makes a contrast between urban and rural Scotland. Apparently this “has come under the spotlight as a result of the access provisions of the LR(S)A”. In strict legal terms, this is not quite correct. Access rights apply in urban areas too, albeit excluded land under s 6 (such as buildings and their respective curtilages) might be more apparent in a built environment. The LRRG may, however, have focused on the fact that urban dwellers are not familiar with the countryside code (see 4.3.3), so it is best not to overstate the point.

The interim report then goes on to make points about community energy and, with just a hint of radicalism, suggests possible sanctions where active engagement between landowners and communities is evidently (and repeatedly) not forthcoming. Such a move would be a shift for Scots law, but it will be recalled that communities are often under obligations (in terms of part 2 or 3 of LR(S)A) to act in the public interest and with sustainable development in mind. In line with the theory that rights bring obligations, should landowners be under similar obligations to communities?

What next?

Under a heading “Further tasks”, the LRRG details what it plans to do (such as clarify the role of a Land Agency), and not to do. It does not plan to look at the tenanted sector. Why? Apparently this is for the Tenant Farming Forum (with representatives from landowning and tenanted perspectives), and the LRRG “urge” that body “to respond constructively to the tenants’ concerns and proposals”. The LRRG has no clout to follow up that urge. If there is nothing in the interim report suggesting a need for an urge mechanism, it seems fair to say any final recommendations to politicians will also not include one. Tenant farming is not part of the LRRG going forward.

What else is not happening? Access reform. This apparently is for the National Access Forum. As with the run-up to the 2003 Act, it seems that many respondents to the LRRG became fixated on access, with some 25% of responses on access matters. This perhaps distracted from matters relating to the underlying control and distribution of land. Now that there is an established corpus of law in relation to access rights, arguably there should be a split whereby access rights are treated as a standalone area of law (at least in the minds of policymakers and legislators) to stop this happening again.

Lastly, some areas are outstanding. This includes the position of the Crown (in relation to the foreshore, for example), common good land, taxation and succession. It can also be noted that some areas can be classified as permanently outstanding for Holyrood, the key one being corporate law (relevant to the companies and other entities that own land in Scotland).

Final observations

From the exclusion of the tenanted sector and a focus on landowner and community engagement, it is apparent that community ownership is once again the currency of the land reform debate. That was so with the Land Reform (Scotland) Act 2003. The LRRG is now going to consider why community ownership has not had a great uptake in all of Scotland.

Two final, provocative points might be raised here. There is an assumption that community ownership is suitable to all of Scotland. Is it? Lastly, community ownership can only work where there is a sitting community. Nothing in the interim report addresses that.

In terms of reaction to the interim report, news releases from NFU Scotland and Scottish Land & Estates indicated a broad acceptance of its terms (with some caveats). For the campaigners, no punches were pulled. In the West Highland Free Press, former MP and journalist Brian Wilson (in the context of the Scottish land question) described the interim report as “the most useless 52 pages ever committed to print”. Andy Wightman blogged under the title “Land reform withers on the vine of complacency & ignorance”, while the Scottish Tenant Farmers Association expressed “incredulity” at the carve-out of tenant farming. The LRRG has much to think about for its further work.

The draft final report of the LRRG is expected at the turn of the year, with the report itself due in April 2014. The interim report gives some indication of what might be included in it. What can be expected in terms of legislation? That is the key question for all stakeholders, and it is difficult to answer that unequivocally. What can be noted at this stage is that at this year’s Scottish Labour Conference, Johann Lamont MSP indicated a commitment to extend the rights of communities, to include situations where there is not a willing seller.

This, coupled with the SNP’s origination of the LRRG, highlights that both of the main Holyrood parties are keen to deliver something with regard to land reform. Although the exact terms of any legislation still cannot be predicted, legislation of some sort seems to be on the horizon.

TURNAROUND TIMES

With Registers of Scotland now working to a new and more detailed set of service standards (see Journal, May, 9), the monthly figures on turnaround times will no longer be published in the Journal. Performance figures on the new standards will be published each quarter online at www.ros.gov.uk