Prior to devolution, Government policy on land reform was widely considered to be conspicuous by its absence. Therefore, the development of land reform as a distinctive policy area, centred on communities and sustainable development, is perhaps one of Parliament’s more noteworthy actions. This blog summarises the implementation of recent land reform measures, and highlights ongoing and forthcoming ones.
The history of land use and reform is well documented and covered in detail (up to the publication of the 2016 Land Reform Bill) by SPICe Briefings on Land Reform in Scotland, and International Perspectives on Land Reform. It was, until 2015, largely perceived as a rural development issue. It is now considered to be more reactive to changing economic, social and cultural factors, and spans topics as diverse as community ownership, urban renewal, housing, human rights, and agricultural land, as well as modernising property law and the fiscal systems which govern land ownership and management.
Existing Legislation and Recent Scrutiny
Significant early legislation included the Land Reform (Scotland) Act 2003 which introduced a right of responsible access to the countryside, a pre-emptive community right to buy, and an absolute crofting community right to buy. The Community Right to Buy was extended to include urban communities by the Community Empowerment (Scotland) Act 2015.
The Scottish Government’s independent Land Reform Review Group reported in 2014 with over 60 recommendations, noting that there was:
“[…] no single measure, or ‘silver bullet’, which would modernise land ownership patterns in Scotland and deliver land reform measures which would better serve the public interest”.
The Review Group took a particular interest in human rights, and the Scottish Human Rights Commission’s National Action Plan which identifies that the ownership and use of land can be important factors in delivering some human rights commitments.
It has been suggested by Peter Peacock (former Policy Director of Community Land Scotland) that human rights issues in relation to early land reform were “very narrowly focussed on [the] private property rights of often very large landowners, which many represented were wholly protected” by the European Convention on Human Rights (ECHR). “It was as if human rights obligations were a “red card” to further land reform”. There was no discussion about “the human rights of declining communities, of their need for adequate housing, [or to] a more sustainable future”.
The Land Reform (Scotland) Act 2016 took account of some of the Review Group’s recommendations, and was a significant piece of legislation for land reform, land management, and communities across Scotland. During the passage of the Bill the Rural Affairs Climate Change and Environment Committee paid specific attention to human rights and its compatibility with ECHR and other international agreements.
The Committee understood that taking a human rights centred approach offered a new lens with which to consider land reform and recognised that the often cited ECHR “right to peaceful enjoyment of possessions” (Article 1 Protocol 1), and the “right to respect for private and family life” (Article 8) “are not absolute rights, and states may interfere with them in order to pursue public interest objectives”, as long as that interference is proportional.
Implementation of Recent Land Reform Measures
With the publication, on 18 April 2018 of Guidance on Engaging Communities in Decisions Relating to Land (under Part 4 of the 2016 Act); another important milestone has been reached. This guidance supports and encourages greater collaboration and engagement between those who make decisions about land and the local communities affected.
A number of other provisions from the 2016 Act have now also been brought forward, including the Land Rights and Responsibilities Statement (LRRS – Part 1), and the establishment of the Scottish Land Commission (Part 2).
The 2016 Act requires the LRRS to “have regard to promoting respect for, and observance of, relevant human rights”, and the statement itself contains a detailed Annex setting these out.
The Scottish Land Commission (SLC) has five land commissioners, and one tenant farming commissioner. Whilst having regard to the LRRS, the commissioners are required to address issues which relate to the ownership of land and land rights, the management of land, the use of land, and the Government’s Land Use Strategy. Their functions are, on any matter relating to Scottish land:
- Review the impact and effectiveness, and recommend changes to any law or policy.
- Gather evidence, carry out research, prepare reports and provide information and guidance.
- Community right to buy.
- Land value taxation and capture.
- Impact of the scale and concentration of land ownership.
- Opportunities to improve access to land for new entrants to farming.
In the coming weeks, Parliament will consider further secondary instruments, including a right to buy “abandoned, neglected or detrimental land” without a willing seller (introduced under Part 4 of the Community Empowerment Act). Further compulsory rights to buy to “further sustainable development in relation to the land” (under Part 5 of the 2016 Act) are expected late next year. Whilst both of these rights to buy do not require a willing seller, there are strict tests to ensure that the purchase is ECHR compatible.
More significant perhaps is the expected introduction, before summer recess, of a draft “super-affirmative SSI” (requiring pre-legislative scrutiny for 60 days) to deliver a Register of Controlling Interests (Part 3 of the 2016 Act). This seeks to provide transparency on where a legal person such as a company owns land, and the natural person behind that company is not known, and was consulted on in late 2016. The Government has undertaken to ensure that it “complements” the UK Government’s People With Significant Control legislation to avoid “double-reporting” of similar information. Following consultation, it is likely to be a further 12 months before the consultation is taken into account, changes made, and the final draft instrument is laid.
Other Government action includes asking the Registers of Scotland to complete the Land Register by 2024, and setting a target of 1 million acres in community ownership by 2020.
At present there are approximately 500,000 acres of community owned land, and many of these purchases were supported by the Scottish Government’s Land Fund, which has a budget of £10 million per annum to 2020. It has recently supported the first urban community body to purchase the Portobello Old Parish Church (£647,500), and the North West Mull Community Woodland Company to purchase the Island of Ulva (up to £4.4m if successful).
It is clear that, whilst the enactment of existing legislation is coming to an end, its work in practice now begins and, given the SLC’s programme of work, further recommendations and land reform measures are likely.
Alasdair Reid, Senior Researcher; Brexit, Environment and Rural Unit