Digesting the Community Empowerment Act

You can’t eat empowerment. So goes the simplistic yet highly challenging critique of facilitative legal measures that seek to improve the lot of certain members of society. (Consider also “Freedom of Speech Won’t Feed my Children”, a track on the 2001 Manic Street Preachers album Know Your Enemy.)

Be that as it may, it is perfectly normal for legislatures to take steps that are not purely about feeding the populace. Such steps can be about removing or mitigating barriers that affect people, to reflect the political views of the Government of the day. That is what the Community Empowerment (Scotland) Act 2015 seeks to do. It does so in a number of innovative ways, which are significant for planners, conveyancers, local authorities, allotmenteers and – perhaps most surprisingly – football fans.

More on the beautiful game later, but first some background. Before the Act progressed to Royal Assent on 24 July, a number of consultation exercises were instigated by the Scottish Government, followed by the usual committee stages at Holyrood. Over the course of this process, the name of the legislation changed subtly from “Community Empowerment and Renewal”, unceremoniously shedding the renewal brand. Another development, influenced in part by the Land Reform Review Group, was to use this legislation to streamline the provisions of the community rights to buy contained in parts 2 and 3 the Land Reform (Scotland) Act 2003. An example of such a change is to allow certain bodies other than companies limited by guarantee to represent the embodiment of a community seeking to acquire land.

More rights of acquisition

A more substantive change to part 2 of the 2003 Act is the extension of the pre-emptive right to almost all land in Scotland. At a stroke, this will remove the distinction between settlements of certain population sizes, introducing a right of acquisition to urban areas. Almost all land in Scotland will therefore be susceptible to community action that empowers local inhabitants with a right of first refusal for certain identified land (as presaged in Combe, “Rural lessons for urban conveyancing” (Journal, August 2012, 32).

That is not the end of amendments to the 2003 Act. A new part 3A is to be inserted by s 74 of the 2015 Act. This introduces a right which goes beyond pre-emption, meaning this new entitlement has something in common with the crofting community right to buy, found in part 3 of the 2003 Act, which does not require a willing seller. Communities are to be given the right to acquire land if (in the opinion of Scottish ministers): “(a) it is wholly or mainly abandoned or neglected, or (b) the use or management of the land is such that it results in or causes harm, directly or indirectly, to the environmental wellbeing of a relevant community”.

Limb (a) was expected, albeit some (including the writer) felt the use of the word “abandoned” could cause confusion given the technical property law meaning of the word “abandon” in the context of an owner intentionally seeking to rid themselves of ownership.

Limb (b) was a stage 3 amendment at Holyrood. The language leaves a lot to interpretation, but the legislation does clarify that “harm” includes environmental effects which “have an adverse effect on the lives of persons comprising the relevant community”, but “does not include harm which, in the opinion of Ministers, is negligible”.

How this will be applied in practice is not immediately clear. What is clear is that the first occasion in which a community tries to access the new Keeper-administered “Register of Community Interests in Abandoned, Neglected or Detrimental Land” and seeks ministerial consent to exercise this right to buy will be a very interesting occasion indeed.

There are some exceptions to what land can be acquired under the new part 3A, including homes or land pertaining to a home. Even with the exceptions, the effects of this right could be profound. Quite rightly, such profound effects will not be unlocked automatically: consent for community acquisition will only be given where ministers are satisfied that land is eligible (i.e. abandoned, neglected or environmentally detrimental) and that the exercise of the right is both in the public interest and “compatible with furthering the achievement of sustainable development” (2003 Act, s 97H). But perhaps the biggest effect comes even earlier than that stage, because the legislation has the significant effect of encouraging owners to justify what decisions (or omissions) they are making in relation to land. This could open up channels of dialogue between owners and other parties that are as yet unused.

More empowerment

There are many more provisions in the 2015 Act that are noteworthy, including:

• a beefed-up, compulsory role for community planning (part 2);
• important rules about participation requests for communities when it comes to delivery of a local “outcome improvement process”, being a process designed by a “public service authority” (a defined term that includes all local authorities, per sched 2) with a view to improving an outcome that relates to the provision of a public service (part 3);
• requirements relating to the administration, disposal and use of common good property by a local authority (part 8); and
• modernisation of the rules relating to allotments, giving a definition for allotments under local authority control and imposing certain duties on local authorities to provide for those who request allotments and to maintain a corresponding waiting list (part 9).

And what about the beautiful game? Fitba, or rather the rights of football fans, did not appear in the initial draft of the legislation. For reasons that will not be explored in this article, Scottish football has been on the front rather than the back pages of newspapers a lot in recent years. There has been a perception from some quarters that greater fan involvement could have prevented the excesses that may have been practised at the boardroom level of certain football clubs.

Part 7 of the 2015 Act provides a framework for future legislation that could “facilitate the involvement of the supporters of a football club in decisions affecting the management, operation or governance of the club” or “facilitate supporter ownership of football clubs”. Again, much is left for the future, and there could be an issue of devolved competence if such proposals tread on reserved areas of corporate law. From a property reform commentator’s perspective, it is worth noting that football fans represent a community of interest rather than a community of place. As such, this could be the beginning of an innovative reform mechanism.

One other issue falls to be mentioned. None of this is directly relevant to the Land Reform Bill introduced to Holyrood just before the summer recess. That forms a standalone legislative measure, which should be closely followed for its impact in a wide variety of areas such as transparency of landownership and reform of agricultural holdings law.

As for the Community Empowerment (Scotland) Act 2015, it is true that you can’t eat empowerment, but this legislative measure provides plenty for lawyers to get their teeth into.