What next for land reform?

Land is a finite, national resource, and the current pattern of ownership and use largely reflects historical forces and events of the second half of the Nineteenth Century. Opinions differ on whether ownership is the key determinant of how land is used.

Land reform, and the role of human rights in land reform, has moved back up the policy agenda, and was defined by the Land Reform Review Group (LRRG) as, “measures that modify or change the arrangements governing the possession and use of land in Scotland in the public interest” (Scottish Government 2014).

A program of land reform legislation in the first Scottish Parliament followed the Land Reform Policy Group’s Recommendations for Action (Scottish Office 1999). This legislation included the Abolition of Feudal Tenure etc. (Scotland) Act 2000, the Land Reform (Scotland) Act 2003, and the Agricultural Holdings (Scotland) Act 2003. The 2003 Land Reform Act introduced a right of responsible access to land, a Community Right to Buy (CRtB) rural land when it was put on the market, and a Crofting Community Right to Buy (CCRtB), regardless of whether it was for sale.

At present, approximately 500,000 acres are in community ownership; it is also regularly cited (e.g. Wightman 2013, Scottish Government 2014) that 50% of Scotland’s private rural land belongs to 432 owners, and that “Scotland has the most concentrated pattern of land ownership in the developed world” (Hunter et al. 2014). However, many of these statistics and claims are not, or cannot be, verified by official data. As Hindle et al. note, “no definitive database of “estates” (or landowners) exists in Scotland” (Hindle et al. 2014). Scottish Land & Estates does not dispute these calculations, however it does note that from a membership of 2,500, over half own fewer than 450 hectares (UK Parliament 2014), and states:

[…] the 432 owners are not individuals, but are legal entities which may include a large number of joint owners, trustees (including professional advisers and community representatives) or in the case of companies, shareholders. The other 50% of the privately owned land in Scotland is owned by many tens of thousands.

The figure below shows different categories of private and public land ownership in Scotland.

Private and public land ownership in Scotland

Land ownership 2

Source: SPICe, based on data from Wightman (2013)

Research into the CRtB has stressed the importance of the formation of community bodies (CBs) (often driven by key individuals) and guidance from support agencies; and where land/assets have been purchased, a willing seller has helped make the process easier and made success more likely. Barriers to community ownership include: the absence of key motivating individuals as part of a CB and/or a willing seller; difficulty in sustaining community interest over the long term, particularly where a registration has been active for a long period (e.g. 5 years) and re-registration is required; ageing and declining populations making it difficult to attract new members to the CB; and securing finance (Scottish Government 2015a).

In 2012, the Scottish Government established the LRRG, which was asked to identify how land reform might: enable more people in rural and urban Scotland to have a stake in the ownership, governance, management and use of land; assist with the acquisition and management of land and assets by communities; and generate support, promote, and deliver new relationships between the land, people, economy and environment in Scotland. The 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” (Scottish Government 2014).

In 2013, the Scottish Government established an agricultural holdings legislation review (AHLR), which reported in early 2015 with 49 recommendations (Scottish Government 2015b).

Other Scottish Government action includes asking the Registers of Scotland to complete the Land Register by 2024, and setting a target of 1 million acres to be in community ownership by 2020.  A Short Life Working Group reported seven major factors as the key barriers to achieving the target.  These are a need to: (Scottish Government 2015c & 2015d):

  • stimulate demand for land through raising awareness
  • build the capacity of communities to take land ownership projects forward
  • support engagement with and within communities
  • improve access to support services
  • develop the network of support providers
  • address the availability of land and barriers to the supply of land

The Community Empowerment (Scotland) Act 2015 amends and simplifies the 2003 Land Reform Act, extends the CRtB to urban Scotland and introduces a new right to buy “abandoned, neglected or detrimental land” in certain circumstances without a willing seller.

The Land Reform (Scotland) Act 2016 is substantial, key provisions include:

  • the preparation of a land rights and responsibilities statement
  • the creation of a Scottish Land Commission whose functions include reviewing the effectiveness of land law/policy and conducting research
  • a public register of persons who have controlling interests in owners and tenants of land
  • the creation of a right to buy land to further sustainable development for eligible CBs (or a nominated third party purchaser) from an unwilling seller
  • substantial amendments to the 1991 and 2003 Agricultural Holdings Acts, which strengthen the rights of tenant farmers

As previously noted, a significant proportion of landowners are not individuals, but legal entities comprising joint owners, trustees or shareholders – many of whom are currently not traceable, and have been linked to offshore tax havens. A consultation on the Register of Controlling Interests is expected to be published, though no date has been given (Holyrood Magazine 2016, Herald 2016). The extensions of the CRtB to “abandoned, neglected or detrimental land”, or to further sustainable development puts substantial qualifying hurdles in place for the interested community. The Rural Affairs, Climate Change and Environment Committee (2015) noted that many community groups considered the conditions to be too onerous, and were unsure how all of the various rights to buy relate to each other. Updated guidance for communities sets out how communities might take forward a right to buy (Scottish Government 2016), and any CB exercising these new rights will be a test case. Amendments to the 1991 and 2003 Agricultural Holdings Acts implemented many, but not all of the recommendations of the AHLR. Implementing the remaining recommendations would require further primary legislation.

The new Scottish Land Commission is likely to play a key role in how the broad policy area of land reform develops, and is currently expected to be fully operational on 1 April 2017 (Scottish Parliament 2015).

Alasdair Reid

Sources:

Herald (2016) Panama Companies Own More Than 60,000 Acres of Scottish Land. Available at:  http://www.heraldscotland.com/news/14417116.Panama_companies_own_more_than_60_000_acres_of_Scottish_land/ [Accessed 4 May 2016]

Hindle, R., Thomson, S., Skerratt, S., McMorran, R. & Onea, P. (2014) Economic Contribution of Estates in Scotland: An Economic Assessment for Scottish Land & Estates, Scottish Land & Estates, Rural Solutions, SRUC Research. Available at – http://www.scottishlandandestates.co.uk/images/stories/EconomicContributionofEstatesinScotland.pdf [Accessed 27 April 2016]

Holyrood Magazine (2016) SNP Pledges New Register of Controlling Interests in Land Ownership. Available at: https://www.holyrood.com/articles/news/snp-pledges-new-register-controlling-interests-land-ownership [Accessed 4 May 2016]

Hunter, J., Peacock, P., Wightman, A. & Foxley, M. (2014) 432:50 – Towards a comprehensive land reform agenda for Scotland, A briefing paper for the House of Commons Scottish Affairs Committee, UK Parliament. Available at – http://www.parliament.uk/documents/commons-committees/scottish-affairs/432-Land-Reform-Paper.pdf [Accessed 27 April 2016]

Scottish Government (2014) The Land of Scotland and the Common Good, Report of the Land Reform Review Group, Land Reform Review Group. Available at – http://www.gov.scot/Resource/0045/00451087.pdf [Accessed 27 April 2016]

Scottish Government (2015a) Impact Evaluation of the Community Right to Buy. Available at – http://www.gov.scot/Publications/2015/10/8581/0 [Accessed 27 April 2016]

Scottish Government (2015b) Agricultural Holdings Legislation Review. Available at: http://www.gov.scot/Publications/2015/01/5605/0 [Accessed 4 May 2016]

Scottish Government (2015c) Target set to register all of Scotland’s land, Newsroom. Available at – http://news.scotland.gov.uk/News/Target-set-to-register-all-of-Scotland-s-land-cc8.aspx [Accessed 27 April 2016]

Scottish Government (2015d) One Million Acres by 2020 – Strategy report and recommendations from the 1 Million Acre Short Life Working Group. Available at – http://www.gov.scot/Publications/2015/12/5735 [Accessed 27 April 2016]

Scottish Government (2016) Part 2 of the Land Reform (Scotland) Act 2003, Community Right to Buy Guidance for Applications made on or after 15 April 2016. Available at – http://www.gov.scot/Resource/0049/00497288.pdf [Accessed 27 April 2016]

Scottish Office (1999) Recommendations for Action, Land Reform Policy Group. Available at – http://www.gov.scot/Resource/0045/00454964.pdf [Accessed 27 April 2016]

Scottish Parliament (2015) Land Reform (Scotland) Bill, Explanatory Notes (and other accompanying documents). Available at – http://www.scottish.parliament.uk/S4_Bills/Land%20Reform%20(Scotland)%20Bill/b76s4-introd-en.pdf [Accessed 27 April 2016]

Scottish Parliament Rural Affairs, Climate Change and Environment Committee (2015) Stage 1 Report on the Land Reform (Scotland) Bill. Available at http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/94538.aspx [Accessed 4 May 2016]

UK Parliament (2014) Written evidence submitted by Scottish Land and Estates. Available at – http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/scottish-affairs-committee/land-reform-in-scotland/written/4226.html [Accessed 27 April 2016]