Introduction
In July 2022 the Scottish Government published Land Reform in a Net Zero Nation, a consultation on measures to “address the impact of scale and concentration of land ownership”.
This blog is the first in a series looking at how these proposals came about, what they might look like, the views of key stakeholders, and the issues that they seek to address.
What is land reform and what are the key principles?
In short, 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. Since 2000, Scottish Government action has spanned 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.
In 2016, a new “human rights approach to land rights and responsibilities” was set out in the Government’s Land Rights and Responsibilities Statement (LRRS), Principle one of which states:
The overall framework of land rights, responsibilities and public policies should promote, fulfil and respect relevant human rights in relation to land, contribute to public interest and wellbeing, and balance public and private interests. The framework should support sustainable economic development, protect and enhance the environment, help achieve social justice and build a fairer society.
Further LRRS Principles relate to increased diversity of land ownership and tenure, including community ownership; meeting high standards of land ownership, management and use to deliver a wide range of social, environmental, economic, and cultural benefits; the availability of clear and adequately detailed information about the ownership, use and management of land; and there being meaningful collaboration and community engagement in decisions about land.
Post-devolution land reform legislation and associated measures are explored in more detail in SPICe blog Land Reform at 20 – What does a post-feudal era look like?
How did the most recent proposals come about?
The Scottish Land Commission was established in April 2017, to “address issues relating to the ownership of land, land rights, management of land, and use of land”, as well as “land taxation, and the effective use of land for the common good”.
In response to a request from Ministers, the Commission undertook a Review of Scale and Concentration of Land Ownership in March 2019 which found that “issues associated with large-scale and concentrated rural land ownership in Scotland directly impact economic and social wellbeing”. Perceived advantages relate predominantly to economies of scale, whilst disadvantages relate to power imbalances and deficits in participation, with “little method of redress for communities affected”. This pattern of market and social power was considered to have parallels with monopoly power in wider economic policy. Key conclusions include (emphasis added):
- Concentration of land ownership has a direct influence on the public interest with potential adverse consequences through the exercise of market and social power, amplified by large scale ownership.
- There is evidence of the adverse effects of excessively concentrated market and social power being realised and causing significant detriment to affected communities.
- There is a need for a statutory framework to mitigate the risks and adverse impacts of concentrated ownership. These frameworks are considered normal in other sectors and in international experience and would enable further delivery of the LRRS and Ministers’ ambitions for land reform.
A series of recommendations was also made, including for the following legislative changes:
- The introduction of a power to apply a public interest test and approval mechanism at the point of significant land acquisition and transfer.
- The requirement for landholdings above a defined scale threshold to prepare and publicly engage on a management plan incorporating community engagement.
- Establish a review mechanism, to provide a practical means of intervention to address adverse impacts of concentrated ownership in a specific land holding where these occur.
Further recommendations were made for the Commission to “review and investigate policy options to encourage a more diverse pattern of private ownership and investment”, and for the Government to “develop and implement more robust mechanisms to ensure local democratic influence and benefit from land use change”.
At the request of Ministers, the above recommendations were developed into three legislative proposals for addressing concentrated landownership, published in February 2021.
Requirement for Management Plans: Landholdings above a certain scale should be required to produce and consult on an estate management plan. This could be delivered as part of a statutory based set of Codes of Practice, with enforcement ensured by linking with wider regulatory consents or financial support (known as cross-compliance).
Land Rights and Responsibilities Reviews: Framed in terms of the principles of the LRRS and underpinned by statutory Codes of Practice, these could address situations where there is considered to be a need for intervention to review and address adverse impacts of concentrated landownership. A similar process, administered by the Commission, is already in place in the tenant farming sector.
Public Interest Test on Land Acquisition: This would be focused specifically on the risks associated with concentrated power of ownership that could harm the social, economic, or environmental wellbeing of an area’s communities. A new statutory power should test whether a specific significant acquisition of land is likely to create or perpetuate excessively concentrated power that could act against the public interest. The outcome of the test could prevent an acquisition or apply conditions to it. The Competition and Markets Authority has similar powers when assessing the risk to the public interest of mergers and acquisitions.
What next?
The second blog in this series sets out what the Scottish Government is proposing.
Alasdair Reid, Senior Researcher; Climate Change, Energy and Land Reform