How the Government’s land reform proposals could have been more radical

How the Government’s land reform proposals could have been more radical
Herald Scotland, by Malcolm Combe


The movement towards further land reform in Scotland has attracted much attention but now there is a specific Scottish Government proposal to critique. Both sides of the debate have not been backward about coming forward to set out their stalls. For the reformers, new campaigners and well-kent faces like Andy Wightman and Lesley Riddoch make the case for reform. Landowners have also had their fair share of coverage. The Duke of Argyll apparently fears his Scottish castle is under attack. Does the Land Reform (Scotland) Bill authorise a siege of Inveraray Castle, metaphorical or otherwise?


The Bill says Scotland is to have a “land rights and responsibilities statement” and a new Scottish Land Commission. Neither step will make much change to substantive law. So what might threaten a landowner’s entrenched fortification? Perhaps it is the new Tenant Farming Commissioner, who will be armed with new codes of practice about agricultural holdings, with powers to make sure those are followed.


The commissioner will also oversee a new system of agricultural holdings law that will widen the ability of some agricultural tenants to transfer or bequeath their tenancies and, in certain circumstances, give such tenants a right to acquire the land that they rent. That right only kicks in when a landlord has behaved particularly badly, so it seems one who fulfils his contractual obligations to the letter will have nothing to fear.


Another part of the Bill is designed to flush out who owns land or, to be more precise, who controls the entities that own land. A right to request information from such entities has been proposed, with possible civil penalties for non-compliance. There are also proposals to increase regulation of deer management and to abolish the domestic rates-relief that sporting estates have enjoyed since 1994, both of which could have an impact on existing rural businesses and, in time, ecosystems.


Perhaps the most headline-grabbing aspect of the Bill is a proposed new right of acquisition for communities in circumstances tied to the sustainable development of land. This right could operate where there is not a willing seller. At first glance, anything that involves compulsory transfer appears drastic but this right is not automatic. Scottish ministers will only sanction a transfer if a number of separate but related tests are met. Even then, a landowner can expect market value for the asset undergoing the forced sale so we are not quite in the realms of confiscation.


It is all the more interesting to consider what the Bill omits. There is nothing resembling a right of acquisition where land is not occupied by an agricultural tenant or near a community. If land reform is to go beyond reinforcing the rights of those already on the ground, it would be necessary to open up schemes not purely based on whether people are there at present. On agricultural holdings specifically, there is nothing resembling an unqualified, unfettered right for tenants to buy out a landlord.


As for the information provisions of the Bill, which allow for a right to request information about who controls a landowning entity, these do not take up one of the recommendations of the Land Reform Review Group. It suggested ownership of land should be restricted to natural persons and EU registered entities. Whilst there are legitimate concerns about the effect such a rule might have on inward or existing investment, recent examples of money laundering activity show just much of an issue transparency of ownership can be. Even with the proposed right to request information, an entity incorporated in a jurisdiction with lesser disclosure requirements than those in the EU will not necessarily become more transparent. Another proposal of the group, that there should be an upper cap on the amount of land one person can own, also makes no appearance in the Bill.
Scotland has a relatively concentrated pattern of landownership compared to other countries and the Scottish Government seems committed to addressing this by way of a new Land Reform Act. Whilst the Bill, public consultation on which closes today, could have been more radical, it is not completely devoid of content for all that. The new rules will make a definite change to the legal landscape. As with all land reform measures, they will be judged by the effect they have on the landscape itself.

Malcolm Combe lectures in the School of Law at the University of Aberdeen and is an adviser to the |Land Reform Review Group.