Land Reform at 20 – What does a post-feudal era look like?

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Land Reform at 20 – What does a post-feudal era look like?

As part of the programme to mark 20 years since the creation of the Scottish Parliament, SPICe has been publishing ‘20 year’ blog posts on SPICe Spotlight over the course of 2019. Our earlier post sets out more information on the programme and the series of blogs.

Prior to devolution, Government policy on land reform was widely considered to be conspicuous by its absence. In the last 20 years, steps have been taken to address key issues, and Scottish Government action and policies now encompass not just rural, but urban land use and ownership.

This blog explores Scotland’s land reform journey since 1999.

Background

Land reform is a broad concept and is considered to include measures which modify or change the management, use and possession of land in the public interest. Scottish Government action 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.

Therefore, the development of land reform as a distinct policy area is perhaps one of the Scottish Parliament’s most noteworthy actions.

What has happened in the Parliament?

An end to feudalism

In all other European countries feudal tenure (a hierarchical system of land ownership with the Crown as ultimate superior) was abolished decades, and in many cases centuries ago. In Scotland, whilst it was largely neutered by the ending of payments (known as feuduties) in 1974, it was only completely dismantled in 2004 by the Abolition of Feudal Tenure (Scotland) Act 2000. The fifth Act of the newly reconvened Scottish Parliament introduced a system of absolute ownership, finally ushering Scotland into a post-feudal age.

Community ownership and a right of access

Significant early legislation also included the Land Reform (Scotland) Act 2003 which introduced a right of responsible access to the countryside, a community right to buy land when it comes on the market, and an absolute crofting community right to buy land. In late 1998, Donald Dewar, Scotland’s first First Minster stated that:

[…] there is undoubtedly a powerful symbolism – which attracts me greatly – of land reform being amongst the first actions of our new Scottish Parliament.

The establishment of an independent review group in 2012, and the introduction of the Community Empowerment (Scotland) Bill in 2013, re-invigorated discussion and debate about land reform following a near ten-year hiatus.

The subsequent Community Empowerment (Scotland) Act 2015 introduced a right to buy Abandoned, Neglected and Detrimental Land, and extended the right to buy to include urban communities.

Human rights and the public interest

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 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 the European Convention on Human Rights (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.

Not just community ownership

The 2016 Act contained a number of major reforms, which are currently at different stages of development. In particular, the Act:

What has happened on the ground?

Over the last 25 years several communities have bought the land on which they live, work and play; with those involved in many of the early buyouts highlighting decades of fragile existence with historic injustice, absentee landlords, unsecure housing tenancies, falling population and a chronic lack of investment as key driving factors. These elements have led to an increasing interest in and understanding of the role that land plays in supporting and sustaining communities.

Internationally, land reform in Scotland is considered unusual in its emphasis on community land ownership. Most other land reforms have focused on giving ownership rights to individuals and tenants. In contrast, the Acts of 2003 and 2016 grant a collective right to buy to entire geographical communities; Matthew Hoffman states that:

[…] community ownership is intended not only to encourage the development of resources that private investors might otherwise ignore; but also to enable local communities to guide the development process. Whereas unfettered, market-driven entrepreneurship might generate increased wealth, but not necessarily benefit the local community, community ownership aims to make sure that wealth generated from the land remains within the community; that the benefits of development are evenly spread; that needed services are provided; that the population is maintained; and that resources are managed for the long-term benefit of the community. In this way the Scottish land reform represents a shift (or rather a broadening) of emphasis, from a focus on wealth creation to a recognition of the importance of effective local democratic governance.

The extent of community ownership

In 1993, North Lochinver Estate in the northwest Highlands was bought by the Assynt Crofters Trust, the Isle of Eigg was bought by its inhabitants in 1997, Knoydart in 1999, and the Isle of Gigha in 2002. These key buyouts occurred before the Community Right to Buy came into law in 2003, however Highlands and Islands Enterprise’s Community Land Unit backed these early initiatives, and the first Scottish Land Fund also supported the Gigha purchase.

Gauging the extent of community ownership in Scotland is not straightforward. The Land Reform Review Group stated:

The range of assets which communities now own has grown. Community controlled housing associations have extensive property portfolios. Communities now own land, often extensive tracts mainly in rural areas, but also woodland, parks and open spaces, heritage assets, and a range of buildings, for broad community use, including business workspaces. This growth in community owned assets is an indicator that Scotland’s communities are becoming more empowered and therefore stronger […].

An Evaluation of the Scottish Land Fund 2012 – 2016 showed that nearly £10m had been spent on 52 projects, and recent figures from the Scottish Government show that, as of December 2018, there were 593 assets in community ownership, owned by 429 community groups and with a total area of 209,810 hectares, 2.7% of the total land area of Scotland.

Representative bodies Community Land Scotland and the Development Trusts Association Scotland have nearly 400 members between them (although many community bodies may be members of both).

Recent recipients of Land Fund support include the Barrhill Development Trust, the Ardnamurchan Lighthouse Trust, and Action Porty.

By establishing a Land Commission, and shifting the policy focus on to transparency of ownership, rights and responsibilities, and engaging with communities, land reform is no longer totally synonymous with community ownership. However, the right to buy, or the threat of using it and coming to a negotiated settlement, remains the main vehicle by which land comes into community control.

Successful right to buy – lessons from Portobello

A recent article, The Parable of Portobello, draws a number of lessons from Scotland’s first urban community buy out, and assesses the interrelated conditions that might allow for any successful acquisition:

  • A significant threat and a significant opportunity – the loss of community space due to the sale of the Old Parish Church and its halls, and the potential for these to continue to be owned and used by local groups.
  • Coherent community – There are easily understandable boundaries to the community, and a distinctive sense of place.
  • Human and social capital – intangible assets such as the individual capabilities of the residents, community activism, and a bold vision for the future of the asset.
  • Enough money, just in time – Scottish Land Fund money was made available for initial feasibility work. Following approval from Scottish Ministers, that the project was “compatible with furthering the achievement of sustainable development”, a further grant from the Land Fund covered most of the purchase costs.
  • Local politics, the community ballot – An independently run ballot is necessary for communities using the right to buy process. This led to a relatively high turnout and showed community support at nearly 99%. It also galvanised locals, increasing support for the project.
  • Valuation – an independent survey and appraisal of the value of the asset is crucial to ensuring that a fair price is agreed.
  • Law matters – without the Land Reform (Scotland) Act 2003, this would not have been possible.
  • Luck and timing – a willing seller helps immensely with the acquisition process, as does the timing of when it comes on the market.

The Parable of Portobello goes on to sum up the impact of the community right to buy:

These communities can now bring property owners, whether owners of large rural estates or even an entity as historically powerful as the Church of Scotland, to the bargaining table to discuss the transfer of property either in the shadows of the new legislation or under the formal auspices of that legislation.

It also recognises that the successful purchase of a community asset does not in itself mean that the enterprise will continue to be successful, and that generating revenue, and managing buildings or land will be any easier for the community than for the previous owner. In short, once a community has bought an asset, the hard work begins …!

What now?

In late 1998, Donald Dewar stated:

It is important that we see land reform as an ongoing process, not just a matter for a quick fix once and for all. I hope that there will be early legislation; and I hope that such legislation will be extensive. But inevitably there are going to be aspects which will require further work, whether to sort out the technical implications or indeed to explore whether or not some ideas are worth doing at all.

In many ways, the Land Commission seeks to explore, over 20 years later, many of these aspects and ideas. It has an extensive work programme covering Good Practice, Ownership, Housing and Development, Tenant Farming, and Tax and Fiscal.

Scale and concentration

The scale and concentration of land ownership in Scotland has been passionately discussed for more than 40 years, indeed it has been central to the land reform debate.

Whilst it is 20 years since the abolition of feudal tenure in Scotland, another anniversary has also recently been celebrated. The radical Land Settlement (Scotland) Act 1919 was passed in response to land raids in the Highlands and Islands and gave the government power to buy land and divide it up into crofts and smallholdings. It is also argued that this legislation allowed the current land buyout movement to exist, be debated and not dismissed.

The Land Commission’s recent work on the Scale and Concentration of Land Ownership was therefore considered to be a “landmark report”. A Research Review, published alongside the report provides more detail:

  • In 2014, 1,125 estates were estimated to control about 70% (4.1 million hectares) of privately-owned rural land.
  • 667 of these estates were between 1,000 and 10,000 hectares in size and 87 were larger than 10,000 hectares.
  • There is a strong preference amongst the owners of large estates to pass them onto heirs.
  • Succession law in Scotland has generally allowed estates to stay intact, suggesting that the long-term pattern of low turnover in estates is unlikely to change in the foreseeable future.

There are currently no specific restrictions on who can own land or how much land a single individual or entity can own.

The Scottish Government, Commission and stakeholders are currently working to develop detailed options to progress its recommendations.

Land futures?

Since 1999, land reform has developed into a mature policy area, with room for improvement (as demonstrated by recent Environment, Climate Change and Land Reform Committee visits) in existing legislation and ample scope for evolution, as environmental, societal and fiscal challenges evolve.

Key debates in relation to land, people and nature can no longer take place in silos. The role of communities in the climate crisis and achieving net-zero emissions by 2045 is strongly linked to rural and urban land use policy, and ensuring the participation of existing communities in nature conservation and landscape policy is crucial to their growth and existence.

Post-devolution land reform has ended feudalism, empowered communities, and taken steps to address transparency. Whilst there are many contributing factors, rural depopulation continues, and at the current rate, around a third of the existing population in much of the Highlands and Islands and parts of the Southern Uplands is expected to leave by 2046.

On 18 December, the Land Commission published Re-peopling Empty Places to mark the centenary of the Land Settlement Act. Noting that there was now a momentum for change, and a Scottish Government commitment to increasing the population of rural areas, the Chair of the Commission stated:

Land reform is not a new thing. Now, when we are faced with declining populations in some of our most fragile rural communities, we should reflect on the legacy of the 1919 Act and challenge ourselves to find today’s equivalent solutions.

Feudalism in Scotland lasted for over 700 years, and in the last 20 years there has been some success at better understanding and changing the ownership and use of land in the public interest. However, without further intervention, the pace at which estates and strategic pieces of land change hands means that it is likely to take considerably more than the next 20 years to deliver the “more diverse pattern of land ownership and tenure”, that the Scottish Government wants to see.

Alasdair Reid, Senior Researcher; Climate Change, Energy and Land Reform