Who stole Scotland?

Who stole Scotland?

Andy Wightman, The Herald


‘Show the people that our Old Nobility is not noble, that its lands are stolen lands – stolen either by force or fraud; show people that the title-deeds are rapine, murder, massacre, cheating, or court harlotry; dissolve the halo of divinity that surrounds the hereditary title; let the people clearly understand that our present House of Lords is composed largely of descendants of successful pirates and rogues; do these things and you shatter the Romance that keeps the nation numb and spellbound while privilege picks its pocket.’


That was how Tom Johnston, the historian and former Secretary of State for Scotland, described Scotland’s noble landowners in 1909 in his book, Our Scots Noble Families. Back then land and its ownership was a hot topic both in the towns and the countryside. Lloyd George’s famous People’s Budget of 1909 had proposed a land tax and radical opinion was still heavily influenced by the ideas of the American social reformer Henry George. Winston Churchill delivered a rousing speech in favour of land reform in the King’s Theatre in Edinburgh in July of the same year and crofters in the Highlands were engaged in land raids.


One hundred years later, land reform is again a hot topic. Or is it? Following some important new laws in the first session of the Scottish Parliament, the subject has slipped off the agenda and the current SNP Government has done next to nothing to advance it. But the reforms of 1999-2003 were only a small step on the way to meaningful land reform and deep-seated problems remain. Perhaps one reason for the waning of interest is the perception that land issues are matters concerning the remoter parts of the Highlands and Islands and downtrodden crofting communities. There are issues there aplenty but the land question is about much more than that.


It is about why common land in the heart of Edinburgh has been let for a penny a year to a commercial property company which will gain outright ownership if the proposed leasehold reform bill proposed by the SNP Government goes through. It is about why Scottish Ministers have paid £2.3 million to buy land in Perthshire that is common land and should never have been sold in the first place. It is about why, in this day and age, children still have no legal rights to inherit land. It is about why, at a time of austerity and proposed caps on public benefits of £26,000 per family, it seems to be quite alright to hand out millions in agricultural subsidies to some of the richest families in the country. It’s about a housing bubble built on cheap credit that has denied young people a place to live even as Gordon Brown told us in his first Budget in 1997 that “I will not allow house prices to get out of control”. It is about how property speculators can pocket millions of pounds in rising land values on the back of publicly funded infrastructure.


Above all, it is about how the whole edifice of Scots land law has been constructed to legitimise what is in many cases little more than theft – just what Tom Johnston was complaining of more than a century ago. In the past I’ve been cautious about making such a case but my discoveries over the past few years have convinced me that he had a point.


A few years ago, for example, I bought some land. Not a lot, just a little bit. It cost me £12.95 and is located at Area F-4, Quadrant Charlie, on the lighted side of the moon. I will probably never visit though I did see it the other night – it’s in the Oceanus Procellarum. The deeds for the property are detailed and they appear to be, in every sense, legitimate and proper. My problem, of course, is that were I to try to defend my property rights I would have difficulty doing so since there is no legal jurisdiction for lunar property. At the end of the day, I simply have a few bits of worthless paper.


By way of contrast, a few months ago I uncovered the title deeds of a 400-acre parcel of common land in East Perthshire and was intrigued to find out that in 1986 it had been split up among the three landowners whose land bounded it, irrespective of the fact that many more people potentially had an interest in it. Not only that, but these landowners only had rights of use in the commonty and no rights of property. Even the Keeper of the Registers of Scotland made a note in the Register of Sasines “agent aware granters apparently only have title to rights in pasturage”. In other words the conveyancing solicitor (who shall remain nameless for the moment) knew that the farmers had no property rights in the common but nevertheless drafted and submitted the deed for recording.


They grabbed it, and despite all the blatant defects this deed (unlike my moon deed) actually enjoys the full protection of the Scots law of property.


Call me naive but is this not what would, in any other circumstances, count as theft? If I walked away with a suitcase full of cash that was lying around and appeared to belong to no-one, could I claim it as mine? If it was stolen property surely I would be guilty of reset? If it was legitimately owned by others, then I am a simple thief.


Maybe Pierre-Joseph Proudhon was right when he said that property is theft. Scotland’s history certainly bears this out


This year is the 450th anniversary of the Reformation in Scotland and amid the limited reflections on this historic event, one important factor seems to have been overlooked. The reason Knox was successful was due to the Protestant nobility. Without them there would have been no Reformation and Scotland may well have remained what in effect it was in 1560, namely a French colony. The reason the nobility were so keen on the Reformation was because they had spent most of the previous 50 years grabbing the lands of the church by a variety of means from simple entryism to outright terrorism. The poor abbot of Crossraguel Abbey, for example, was kidnapped by the Earl of Cassillis and slowly roasted on a spit for a week until he handed over the charters of the abbey’s lands.


To legitimise this theft, the same nobility then met on June 17, 1617, to pass the Act of Registration which set up the Register of Sasines to record these dubious titles. Then, for good measure, they passed the Act of Prescription which legitimised this theft if held for 40 years. These acts remain in force (though in amended form) and underlie why, today, unscrupulous landowners can simply grab land such as the 400 acres mentioned earlier.


Of course, as a country, we have something of a track record in stealing land. Arguably, the biggest land grab of them all was the British Empire. At its height, fully one quarter of the globe was, quite simply, annexed in the name of the crown. In 1768, Captain Cook was granted a royal warrant which instructed him to take possession of “such islands as you may discover in the course of your voyage that have not hitherto been discovered by Europeans”. The colonisation of Australia in 1788 gave rise to the legal doctrine of terra nullius – literally “land belonging to no-one”. For more than two centuries this legal fiction underpinned the Australian land law code until a native of the Meriam Islands, Eddie Mabo, successfully challenged it in the High Court of Australia in 1992. As a consequence, Australian land law is in something of a state of flux.


Old habits die hard and, curious as it may seem, as recently as 1955, the Colonial Office advised that the same flummery of royal warrants, flag-raising, cannon popping and saluting that had been used to seize the territories of the British Empire was how the Royal Navy should go about the annexation of the island of Rockall in the north Atlantic.


Terra nullius is also the doctrine that underlies the strange Scots legal notion of a non domino titles – those granted by someone who is not the owner of the land they are granting. Again, these have been used to generate all sorts of mischief but continue to be recognised as a legitimate part of the Scots law of property.


Within legal circles there have lively debates about how the laws of prescription have been used and abused. Indeed, in the latest Scottish Law Commission report it is admitted that there are those who argue that “prescription is theft”. However, until now, these controversies have not formed part of the debate on land reform, which is curious. Perhaps one of the reasons that politicians have been fixated on community buyouts in the Highlands and Islands is that these are relatively non-controversial. Many of the Scottish aristocracy I have spoken to over the years are perfectly relaxed about such measures.


The tough choices are to be found in the Scots law of property itself and, with so many vested interests in the law, construction, estate agency, finance and landownership, it is hard to avoid the conclusion that nothing of any consequence will happen. Certainly when we have MSPs who have played the property market and at least one MSP who owns seven houses, it looks unlikely that they are going to be sympathetic to the need for land prices, and thus house prices, to drop to affordable levels.


Land is power. How it is derived, defined, distributed and exercised affects numerous aspects of how we live our lives. It is at the root of growing inequality in Britain, at the heart of the financial mess we are in, and at the heart of the ‘fairness agenda’ promoted by David Cameron and Nick Clegg.


David Lloyd George and Winston Churchill served together in government as social reformers more than 100 years ago. One of their shared causes was land reform. We need more of the kind of radical, progressive and determined thinking that they espoused if we are to build a truly fair and just society. The division of land and the iniquities of the Scots law of property stand in the way of this.


In 1872, Cosmo Innes, the famous antiquarian, advocate, and law professor, wrote: “Looking over our country, the land held in common was of vast extent. In truth, the arable – the cultivated land of Scotland, the land early appropriated and held by charter – is a narrow strip on the river bank or beside the sea. The inland, the upland, the moor, the mountain were really not occupied at all for agricultural purposes, or served only to keep the poor and their cattle from starving. They were not thought of when charters were made and lands feudalised. Now as cultivation increased, the tendency in the agricultural mind was to occupy these wide commons, and our lawyers lent themselves to appropriate the poor man’s grazing to the neighbouring baron. They pointed to his charter with its clause of parts and pertinents, with its general clause of mosses and moors – clauses taken from the style book, not with any reference to the territory conveyed in that charter; and although the charter was hundreds of years old, and the lord had never possessed any of the common, when it came to be divided, the lord got the whole that was allocated to the estate, and the poor cottar none. The poor had no lawyers.”


Not only did the poor have no lawyers. They spoke no Latin either and were not in the habit of travelling to Edinburgh on a regular basis to examine the title deeds of the nobility.


But if it is possible, as Eddie Mabo demonstrated, to turn the tables on 200 years of colonial legal fiction in Australia, it should not be beyond our wit to do the same here. It is time to reclaim the law of the land from those who have both framed it and benefited from it over the centuries, to repeal the law of prescription and to pass a land restitution act to recover all stolen land. Above all, let’s remember that landowners might own the land but they do not (or should not) own land law. That belongs to us and it’s high time we paid more attention to what’s been going on in our name.