Human rights and land reform: unanswered questions

In a report published on 4 December 2015, the Scottish Parliament’s Rural Affairs, Climate Change & Environment Committee called for the “strengthening” of the Land Reform (Scotland) Bill now before the Parliament, as falling short of the “radical changes needed”.

Perhaps nowhere is the debate over land law reform in Scotland more fraught and misunderstood than in relation to the human rights implications. Rob Gibson, the committee convener, concluded the hearings on the bill by saying: “I think we have reached a point where we are saturated with information.”

Saturated with information is likely to be how anyone will feel trying to grapple with the jurisprudence emanating from Europe. The committee’s report stated, quite apprehensively: “The committee recognises that the bill must be robustly scrutinised from a European Convention on Human Rights (ECHR) perspective, so that both the Scottish Government and the Scottish Parliament are as confident as possible that the whole bill is compatible with ECHR and is protected from potential legal challenge.”

This article will discuss the application of the right to property under ECHR Article 1 of Protocol 1 (A1P1) and whether the Scottish Government can really be confident that the bill is ECHR-compatible. While the bill has raised concerns about rights emanating from the International Covenant on Economic, Social and Cultural Rights, it is important to remember that such Covenants are not incorporated into Scots law, and while they may influence policy considerations, our primary concern has to be the ECHR, which is actually enforceable.

The bill was published on 23 June 2015, building on the findings of the Land Reform Review Group and the Agricultural Holdings Legislation Review Group. Depending on which sources you choose, the bill is either a radical assault on property rights, or will do little to resolve the grievances of rural Scotland. The truth probably lies somewhere between the two. 

The primary concern of this article will be the provisions of the bill that have the ability to deprive someone of property in order to “further... sustainable development”. This has been designed as a mechanism through which communities can buy land without the consent of the existing owner. This builds on the provisions of the Land Reform (Scotland) Act 2003, part 2, and the Community Empowerment (Scotland) Act 2015, which has strengthened the right to buy for rural communities.

Human rights and property

The foundation of property as a “right” remains fraught within a political and historical maze of competing schools of thought. For present purposes, it is only necessary to note that A1P1 states: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

A1P1 extends to protect individuals from arbitrary interference by the state with their existing possessions. This right was confirmed in Marckx v Belgium (1979) 2 EHRR 330, in which it was opined that “by recognising that everyone has the right to the peaceful enjoyment of his possessions, article 1 is in substance guaranteeing the right of property”. However, as the second part of article 1 makes clear, the right to property is not absolute. One can be deprived of the right in the public interest, subject to the conditions provided for by law and by the general principles of international law.

Deprivation of property rights within A1P1

Courts facing potential applicants have to determine the validity of claims of interference under A1P1. From the existing jurisprudence, we can observe that the Strasbourg court has developed a five-point test that is generally used when determining applications. Parts 1 and 2 resolve whether the applicant has “victim status”. If so, parts 3, 4 and 5 then determine the validity of the interference.

The test can be expressed succinctly as:

1. Does the applicant hold a possession?

2. Has an interference with A1P1 taken place? This involves considering the three categories set out in Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35: (a) general interference with the peaceful enjoyment of possessions; (b) deprivation of possessions; and (c) control of the use of those possessions. Does the state action fall within one of these three categories?

3. Was the action of the state lawful within the meaning of the article?

4. Did the action of the state pursue a legitimate aim in the public or general interest?

5. Did the action of the state strike a fair balance between the needs of the community and the burden placed on the individual applicant? This is also expressed by asking simply, was the interference proportionate?

In order to determine whether the bill and other proposed measures would comply with the Scottish Government’s obligations, the five-point test must be considered in more detail.  

1. Possessions

The first point to determine is whether an applicant holds a possession. The test in ECHR law is that the applicant must hold an economic interest or a legitimate expectation of acquiring an interest. In Parochial Church v Wallbank [2003] UKHL 37, Lord Hobhouse observed that “possession” applies to all forms of property and is the equivalent of “asset”. In relation to title to land, this should be relatively easy to ascertain, by simply enquiring with the appropriate register, though for other interests in land, it will be slightly more complex.

2. Interference

The second step of establishing victim status requires the court to consider the jurisprudence of Sporrong and Lönnroth and ask whether the intervention constitutes:

• general interference with the peaceful enjoyment of possessions;
• deprivation of possessions; or
• control of the use of those possessions. 

A state action which falls within one of these three categories constitutes interference.

The order given in Sporrong is slightly misleading, as before examining the first category, the court must consider questions of actual interference within the second and third. This does not necessarily mean that the first category is of lesser importance, as if the facts do not show deprivation, there remains the possibility that measures may constitute an interference with the peaceful enjoyment of property.

The ECHR has taken a broad definition of deprivation as including expropriation and other loss of rights which flow from the legal consequences of property. The deprivation must be definitive and involve an irrevocable expropriation or transfer of property rights. Recent Scots law reforms, particularly the community right to buy and the crofter’s right to buy, clearly constitute a deprivation of possession, as would an agricultural tenant’s right to buy or any further measure that forces the sale of land.

Interestingly, the court has also included the inability to dispose of land as constituting a de facto expropriation. Whether this means that restricting an owner’s ability to sell on the free market to sale only to registered communities would constitute a de facto expropriation remains unanswered.

3. Lawfulness

A1P1 states that deprivation of property must be subject to the conditions provided for by law and that control of use must be based on such laws as the state deems necessary. This requirement of lawfulness is intended as a safeguard against arbitrary measures.

As is made clear in Sporrong, the Convention organs do not examine whether national law has been applied correctly. Put succinctly, the organs should not act as a court of final appeal. It is not the function of the ECHR to deal with errors of fact or law allegedly committed by a national court unless Convention rights and freedoms have been infringed.

The court in James v United Kingdom (1986) 8 EHRR 123 and Mellacher v Austria (1989) 12 EHRR 391 held that the applicable provisions of domestic law should be sufficiently accessible, precise and foreseeable. This is necessary in order to provide adequate safeguards against arbitrary interference with substantive rights.

The requirement raises a number of interesting questions in relation to ongoing Scots land reform.

For example, use of the term “sustainable development”, without any attempt to define what this means, is problematic. Andrea Ross from Dundee University wrote: “There seems to be very little understanding or coherent thought about what exactly sustainable development means and its role in governance.”

The Land Reform (Scotland) Act 2003 did not offer a definition, nor does the new Land Reform (Scotland) Bill, which states in s 47 that deprivation is valid when carried out to further the aims of “sustainable development”, but does not offer any suitable explanation within the bill or related policy documents.

Another example of insufficient precision and foreseeable consequences is the use of “community bodies” in part 2 of the Land Reform (Scotland) Act 2003, and in s 42 of the bill. In both instances, “community” is defined by reference to a “postcode unit or postcode units”. It is unlikely that a postcode, a mechanism used for delivering mail, constitutes a valid definition of a community with a relevant interest in land.

The risk for the Scottish Government is that terms such as “sustainable development” and “community” remain so poorly defined in the bill and existing legislation that they do not constitute valid law for that very reason. However, whether these and other abstract terms would satisfy the “lawful” requirement in Sporrong remains unknown.

4. Public interest

In James, the court stated: “The taking of property in pursuance of a policy calculated to enhance social justice within the community can properly be described as being ‘in the public interest’. In particular, the fairness of a system of law governing the contractual or property rights of private parties is a matter of public concern and therefore legislative measures intended to bring about such fairness are capable of being in the ‘public interest’, even if they involve the compulsory transfer from one individual to another.”

The problem is that the notions of public and general interest remain particularly ambiguous and difficult to define. Without a great deal of judicial reasoning, the definition of public interest has been stated broadly. In James, the court opined that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”.

The anxiety shown by various courts over outlining a definition of public interest is problematic, although to an extent unavoidable. The wide margin of appreciation offered to individual states persists, as the court fears accusations of meddling in the domestic affairs of states without democratic legitimacy. This was highlighted by Lord Hope in R v DPP, ex p Kebilene [2000] 2 AC 326, who noted: “There is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention.” As a result, the Scottish courts have been apprehensive to offer reasoning. In the Pairc Crofters case [2012] CSIH 96, Lord President Gill simply stated: “The public interest is a concept that is to be found throughout the statute book. There is no need for a general definition of it.”

The consequence of states being given such broad discretion means that in practice they are required to do little more than give the simplest of justifications for intervention. Dr Frankie McCarthy of Glasgow University feared – in a comprehensive study undertaken in 2009 – that this process has been denigrated to a “box-ticking exercise in which almost any justification is accepted”. Such a lax standard leaves serious concerns about the utility of the existence of the public interest requirement.

5. Proportionality

The fifth step in the five-step procedure is that a measure interfering with the peaceful enjoyment of possessions must be proportionate in a democratic society directed at achieving a legitimate aim.

The principle of proportionality must strike a fair balance between the demands of the general interest of the community, and the individual’s fundamental rights. The court has ruled, citing the relevant preparatory works, that the deprivation must not “amount to arbitrary confiscation”. The dicta in James show that such a fair balance will not have been struck where the property owner is made to bear “an individual and excessive burden”.

This is crucial, as proportionality is most often the critical question in A1P1 applications. Since states will most often provide a legal basis for their interference, and since the test of public interest is so rarely enforced in any meaningful way, the question of balance becomes critical.

Yet the jurisprudence remains troublesome. The problem is that the weighting to be allocated to the various competing factors will in most cases be left to the judges, which has raised concerns of democratic accountability. Mellacher also highlights that the court is not willing to accept measures as disproportionate even if there exists an alternative solution, provided they remain within the margin of appreciation.

This does not seem particularly logical, as what is the limit of the margin of appreciation if not the principle of proportionality?

Testing the bill

The Scottish Government has stated that it is determined to ensure that the bill is ECHR-compatible and protected from challenges. So what must the committee do to ensure that the current bill, and future reforms, do conform? First, the theoretical foundation of A1P1 has to be examined in more detail. Secondly, the five-point test often cited, and adopted here, has to be reconsidered. While it is a useful mechanism when it comes to learning the procedures undertaken by the courts, it clearly suffers from inconsistency in its implementation due to the ambiguity of certain concepts. To tackle this, the Scottish Government must set out clearly its understanding of the key concepts of possession, peaceful enjoyment, community, sustainable development, deprivation and public interest.

Answering when deprivation is in the public or general interest is perhaps the most difficult question, as there remains no consensus amongst economists, politicians, philosophers and lawyers as to how to regulate property rights. It has to be accepted from the outset that the Scottish Government will struggle to move beyond simply attempting to balance the competing interests due to the clearly subjective nature of such concerns. However, this limitation does not detract from the importance of attempting to find this balance.

What can be said for certain is that the right to property contained within A1P1 has to be examined in more detail by the Government, the Scottish legal community and land reform campaigners in order to allow legislation to be drafted in compliance with ECHR obligations. At present, the bill – and other existing and proposed land law reforms – leaves an unacceptable level of uncertainty that must be comprehensively addressed in order to avoid “shoddy draftsmanship” and more drawn out litigation like the infamous Salvesen v Riddell [2013] UKSC 22, in which the Supreme Court found the Scottish Government to have legislated outside its competencies.