Following Land Reform Acts in 2003 and 2016, the Scottish Government is now planning new legislation on which it consulted over the summer months1. My interest in the configuration of land holding dates back half a century, since these patterns form a foundation for understanding how the twists and turns of Scotland’s rural land management affect our heritage of wild animals and plants. This post publishes, for the record, my responses to the questions asked in this latest consultation.
The central proposal presented in this consultation is the idea of defining legal duties applied to ‘large-scale landowners‘ above a proposed threshold of 3000 hectares. The threshold seems set very high and feels arbitrary (not being supported by convincing evidence) but, on reflection, I also argued that the term ‘landowner’ is used far too loosely (both within the consultation paper and more generally). Debate around land ownership carries underlying political and ideological undertones, which can get in the way of any clarity around the practical implications of proposed actions. There are many different ways in which land is owned, tenanted, leased and so on by public, private, community and other actors so I’ve argued for use of the term ‘landholding’ as a better umbrella across this diversity of the means through which our land resources are managed…..
Whatever, the questions that were posed (in italics) and my answers are as follows:
Part 4: Criteria for large-scale landholdings
Q1 – Do you agree or disagree with the criteria proposed for classifying landholdings as ‘large-scale’:
Q1a) A fixed threshold of 3,000 hectares: Disagree
Q1b) Land that accounts for more than a fixed percentage of a data zone (or adjacent data zones) or local authority ward(s) designated as an Accessible Rural Area or Remote Rural Area, through our six-fold urban/rural classification scheme: Agree
Q1c) Land that accounts for more than a specified minimum proportion of a permanently inhabited island: Agree
Please give some reasons for your answers and outline any additional criteria in the text box below:
The proposed 3000 ha threshold is arbitrary and not supported by compelling evidence. The definition of what counts towards the threshold lacks clarity, leaving scope for ‘gaming’ whatever number might be adopted. The focus on land *ownership* misdescribes a real world in which legal landholding is not an absolute, rather a bundle of rights and responsibilities. Land can be held or accessed in many ways, for example including tenancies and a variety of contractual arrangements as well as a heritable asset. Land ‘owners’ may be legal persons, such as companies or trusts; it is essential that the beneficial ‘owners’ can be identified, but the primary focus here should be on the land *holding*, whatever form or scale is involved. There is also the question of rights held in common or as part of the wider public interest. So the size of any distinct land parcel is only one of many elements making up these diverse patterns of landholding. The general principle should be that rights and responsibilities of land holding should apply to all holdings, with only a minimum of exceptions for defined purposes. The established right of responsible access to land is an exemplar in this regard, for example exemptions apply to dwelling houses and their curtilage (as well as a few other exceptional circumstances).
Within this approach there are also legitimate questions around the local scale and distribution of landholding rights, including especially the proportion of any inhabited island. Again, the general principle should be that duties around rights and responsibilities should be applied consistently, with minimal carefully defined exceptions.
Q2 Do you agree or disagree that family farms should be exempt from the proposals outlined in Parts 5 to 7 even if they are classified as a ‘large-scale’ landholding? Disagree
Please give some reasons for your answer in the text box below:
Without an unequivocal definition of a ‘family farm’ this proposal is unworkable. In the real world there are numerous diverse patterns of landholding and management, within which ‘family farms’ are but one. For example, many modern farms involve a variety of contract farming arrangements which can involve farm family members both as contractors and contractees – how would such arrangements be accommodated within a ‘family farm’ definition? As argued above, the general principle should be that the rights and responsibilities associated with landholding apply to all holdings, with a minimum of exceptions.
Q3 Do you think that the proposals considered in this consultation should be applied to the urban context? Yes
Please give some reasons for your answer in the text box below:
While the urban context can be different, contrasting with some rural settings, there are extensive boundary areas where intermediate circumstances prevail. Land reform is not exclusively a rural issue – although, by area, the larger part of Scotland is rural, land rights and responsibilities in urban areas usually affect a much large number of people.
Part 5: Strengthening the Land Rights and Responsibilities Statement
Q4 We propose that there should be a duty on large-scale landowners to comply with the Land Rights and Responsibility Statement and its associated protocols. Do you agree or disagree with this proposal? Disagree
Please give some reasons for your answer in the text box below:
I agree that the LRRS should be a defined duty but, as a general principle, the duty should apply to all landholdings, with minimal exceptions. Thresholds based on size of holding are arbitrary and hard to defend.
Q5 If there was a legal duty on large-scale landowners to comply with the Land Rights and Responsibility Statement and its associated protocols, we propose that this should be enforced by having a formal procedure for raising complaints, and by making provisions for independent adjudication and enforcement. Agree
Please give some reasons for your answer in the text box below:
I agree there should be recourse to independent adjudication and enforcement. A legal duty without provision for enforcement undermines the rule of law.
Q5b) Do you agree or disagree that only constituted organisations that have a connection to the local area or the natural environment should be able to report breaches of the Land Rights and Responsibility Statement? Disagree
Should these constituted organisations have a remit on:
Community: Don’t know
Charity: Don’t know
Public sector: Don’t know
Please provide some reasons for your answers and any additional suggestions in the text box below:
In the absence of robust definitions, this proposal is unworkable. There should be no restriction on who can report alleged breaches of the duty.
Q5c) Do you think the responsibility for investigating and dealing with complaints should sit with:
the Scottish Government: No
a public body (such as the Scottish Land Commission): Yes
Please provide some reasons for your answers and any additional suggestions in the text box below:
There should be a role here for our elected local authorities, representing their respective community interests and reinforcing established lines of democratic accountability.
Q5d) Should the potential outcome from an investigation of a breach be:
• Recommendation for a mediation process: Yes
• Recommendation on how the landowner or governing body could comply with the Codes of Practice/protocols: Yes
• A direction to the landowner or governing body to implement changes to operational and/or management practices: Yes
Please provide some reasons for your answers and any additional suggestions in the text box below:
These are three possible outcomes, but there should also be last resort recourse to fines and other penalties, for example potentially to put a land holding into some form of ‘special measures’.
Q5e) Should the enforcement powers for a breach be:
• Financial penalties: Yes
• ‘Cross-compliance’ penalties: Yes
Please provide some reasons for your answers and any additional suggestions in the text box below:
Such penalties should be a ‘back-stop’ last resort. It is disappointing that no proposals have been presented for reinforcing advice and assistance to reconcile differences of view, thus minimising any punitive tone in these proposals.
Q6 Do you think the proposal to make the Land Rights and Responsibility Statement and its associated protocols a legal duty for large-scale landowners would benefit the local community? Yes
Please give some reasons for your answer in the text box below:
As a general principle, land rights and responsibilities should apply to all land holdings and relevant interested parties, without arbitrary size thresholds. In some cases, a local ‘community’ is hard to define, hence as a general rule there should be a role for local authorities, because they have established lines of democratic accountability.
Q7 Do you have any other comments on the proposal to make the Land Rights and Responsibility Statement and its associated protocols a legal duty for large-scale landowners?
Please write your answer in the text box below:
The published rights and responsibilities statement is a very general, high level document. The nine protocols published to date indicate what a bureaucratic quagmire this might become if inappropriately developed into a legal duty and especially if applied arbitrarily to vaguely defined ‘large’ holdings (so incentivising and encouraging avoidance). Far better to establish a principle that the Statement applies to all landholding (not just ‘large-scale landowners’) and focus effort on facilitating and enabling good practice. Legal measures may perhaps be required as a ‘back stop’ against unreasonable behaviour.
Part 6: Compulsory Land Management Plans
Q8 We propose that there should be a duty on large-scale landowners to publish Management Plans. Do you agree or disagree with this proposal? Disagree
Please give some reasons for your answer in the text box below:
The Forestry and Land Scotland management plans are exemplary, and the five bullet points above set out the broad terms of good practice. However, it is undeniable that preparing, scrutinising and maintaining such plans more widely carries a cost. Would this be the best and most constructive use of limited staff time and other resources in an era of austerity? There is a risk that a duty to prepare and maintain such plans becomes a bureaucratic burden which is not adequately funded, that plans are of poor quality, out of date or not easily accessible. In that case the admirable intentions behind this proposal would be seriously undermined. This idea requires further thought to generate a practical proposal for implementation.
It would be regrettable and counterproductive if there was any sense in which a duty to prepare land management plans became perceived as a punitive measure on those landholdings to which it was applied.
Q9 How frequently do you think Management Plans should be published?
Please write your answer in the text box below:
It is important that any plans are up to date and easily accessible. Frequency is only one factor here.
Q10 Should Management Plans include information on:
Land Rights and Responsibility Statement compliance: Yes
Community engagement: Yes
Emission reduction plans: Yes
Nature restoration: Yes
Revenue from carbon offsetting/carbon credits: Yes
Plans for developments/activities that will contribute to local and inclusive economic development or community wealth building: Yes
Please provide some reasons for your answers and any additional suggestions in the text box below:
Land management plans are potentially an important way to set out and communicate the terms of land rights and responsibilities exercised by all the relevant partners (including local community and wider public interests). Good practice potentially includes all the points above, and more. Further thought is required on how this might be worked up into a practical proposal and piloted in a variety of circumstances. It isn’t right to restrict such work to arbitrary ‘large-scale’ landholdings.
Q11 Do you think the responsibility for enforcing compulsory land management plans should sit with:
- the Scottish Government: Yes
- a public body (such as the Scottish Land Commission): Yes
Please provide some reasons for your answers and any additional suggestions in the text box below:
The Scottish Government unavoidable carries overall responsibility, but responsibility for enforcing individual land management plans should not be centralised. There is a role here for our elected local authorities, suitably resourced, to facilitate and (on occasion) enforce good practice. Using this established framework of democratic accountability, it would be possible to consider the interaction of management plans between neighbouring land holdings, and placing these in context of development planning more generally.
Q12 Do you think the proposal to make Management Plans a legal duty for large-scale landowners would benefit the local community? Don’t know
Please give some reasons for your answer in the text box below:
Land management plans are potentially a good thing (as exemplified by FLS) and a constructive vehicle for community engagement, but the extent to which they should be a legal duty and on whom requires further thought. Any sense that such a duty was some form of punitive measure would be regrettable. As argued in earlier responses, a robust definition of ‘large-scale’ is lacking. In some cases, it is hard to define a local ‘community’, so as a general rule there should be a role for local authorities, because they have established lines of democratic accountability not always evident in the ‘local community’.
Q13 Do you have any other comments on the proposal to make Management Plans a legal duty for large-scale landowners?
Please write your answer in the text box below:
The terms of any such proposal requires further thought, and good practice should be facilitated and piloted to establish costs and benefits, before any legal duty is established.
Part 7 i): Regulating the market in large-scale land transfers – a new Public Interest Test
Q14 We propose that a public interest test should be applied to transactions of large-scale landholdings. Do you agree or disagree with this proposal? Agree
Please give some reasons for your answer in the text box below:
The concept of a public interest test is welcome, but it isn’t clear why this should be applied only to ‘large-scale’ landholdings. The idea of a: “risk arising from the creation or continuation of a situation in which excessive power acts against the public interest” is far too vague to be workable. The scope of public interest extends to community development (such as housing need), environmental sensitivity and other factors. These have not yet been set out.
Q15 What do you think would be the advantages and/or disadvantages of applying a public interest test to transactions of large-scale landholdings?
Please write your answer in the text box below:
Wider public recognition is required that land holding necessarily involves a bundle of rights and responsibilities extending to local community and wider public interest in the management of Scotland’s land resources. Is this what is meant by a “risk arising from the creation or continuation of a situation in which excessive power acts against the public interest”? Not clear!
Q16 Do you think the public interest test should be applied to the seller only / the buyer only / the seller and buyer / don’t know: To the seller and buyer
Please give some reasons for your answer in the text box below:
Both seller and buyer should be bound by recognition of a wider public interest, and associated good practice.
Q17 If the public interest test was applied to the seller, do you think the test should be considered as part of the conveyancing process? Yes
Please give some reasons for your answer in the text box below:
To be effective, a public interest test should be part of the formal conveyancing process.
Q18 Do you think that all types of large-scale landholding transactions (including transfers of shares and transfers within or between trusts) should be in scope for a public interest test? Yes
Please give some reasons for your answer in the text box below:
Consistent with responses to previous questions, the bundle of rights and responsibilities associated with various forms of land holding logically includes transfers within or between trusts, so any public interest test applies here also.
Q19. We have proposed that if a public interest test applied to the seller concluded there was a strong public interest in reducing scale/concentration, then the conditions placed on the sale of the land could include:
i. The land in question should be split into lots and could not be sold to (or acquired by) one party as a whole unit
ii. The land, in whole, or in part, should be offered to constituted community bodies in the area, and the sale can only proceed if the bodies consulted, after a period of time, indicate that they do not wish to proceed with the sale
Do you agree or disagree with these conditions?
Condition i.: Agree
Condition ii.: Agree
Please give some reasons for your answer and suggest any additional conditions in the text box below:
These are both potential conditions, but proposals for implementation require further development.
Q20 Do you think that a breach of the Lands Right and Responsibilities Statement should be taken into account when determining the outcome of a public interest test? Yes
Please give some reasons for your answer in the text box below:
Agree, but the scope of consequential actions requires further development. For example, responsibility for exercising and enforcing such actions should not be centralised and would have to be adequately resourced.
Q21 Do you think that a public interest test should take into account steps taken in the past by a seller to:
Q21a) Diversify ownership: Yes
Q21b) Use their Management Plan to engage with community bodies over opportunities to lease or acquire land: Yes
Please give some reasons for your answer in the text box below:
These are both relevant considerations.
Q21c) What time period do you think this should cover?
Please write your answer in the text box below:
Rather than any specific time period, this consideration should be framed in terms of how any such steps had been sustained over time.
Q22 Do you think the responsibility for administering the public interest test should sit with:
- the Scottish Government: Yes
- a public body (such as the Scottish Land Commission): Yes
Please provide some reasons for your answers and any additional suggestions in the text box below:
The Scottish Government unavoidably retains overall responsibility, but administration of individual cases should not be centralised. There should be a role for our elected local authorities, suitably resourced.
Q23 Do you think the proposal that a public interest test should be applied to transactions of large-scale landholdings would benefit the local community? Yes
Please give some reasons for your answer in the text box below:
Yes but the extent of any such benefit depends on how, and to whom, the public interest test was applied.
Q24 Do you have any other comments on the proposal that a public interest test should be applied to transactions of large-scale landholdings?
Please write your answer in the text box below:
In line with responses to earlier questions, any public interest test should be more generally applied and not only arbitrary ‘large-scale’ landholdings.
Part 7 ii): Regulating the market in large-scale land transfers – requirement to notify an intention to sell
Q25 We propose that landowners selling large-scale landholdings should give notice to community bodies (and others listed on a register compiled for the purpose) that they intend to sell.
Q25a) Do you agree or disagree with the proposal above? Disagree
Please give some reasons for your answer:
This seems like an additional piece of unnecessary bureaucratic process potentially duplicating existing provisions of Community Right to Buy.
Q25b) Do you agree or disagree that there should be a notice period of 30 days for the community body or bodies to inform the landowner whether they are interested in purchasing the land? Disagree
Please give some reasons for your answer in the text box below:
See answer to part a
Q25c) If the community body or bodies notifies the landowner that they wish to purchase the land during the notice period, then the community body or bodies should have 6 months to negotiate the terms of the purchase and secure funding. Do you agree or disagree with this proposal? Disagree
Please give some reasons for your answer in the text box below:
See answer to part a
Q26 Do you have any other comments on the proposal that landowners selling large-scale landholdings should give notice to community bodies that they intend to sell?
Please write your answer in the text box below::
No further comments
Part 8: New conditions on those in receipt of public funding for land based activity
Q27. We propose the following eligibility requirements for landowners to receive public funding from the Scottish Government for land based activity:
i. All land, regardless of size, must be registered in the Land Register of Scotland.
ii. Large-scale landowners must demonstrate they comply with the Land Rights and Responsibility Statement and have an up to date Land Management Plan.
Do you agree or disagree with these requirements?
a) Requirement i. Don’t know
b) Requirement ii. Don’t know
Please give some reasons for your answer in the text box below:
These proposals seem confused. Use of the term ‘landowners’ seems to restrict the scope to exclude eg tenants – ‘landholders’ better reflects the variety of circumstances to include, for example, various forms of leaseholding. All land holdings should be registered; it isn’t clear how this eligibility provision helps to resolve shortcomings in the Register. Proposal ii applied to (arbitrary) ‘large-scale landowners’ when proposal i is not seems hard to justify. The scope of ‘public funding’ is not defined – potentially applied to funding not specific to the land holding or its management? This does not seem workable in practice.
Q28 Do you have any other comments on the proposals outlined above?
Please write your answer in the text box below:
Transparency in the use and application of public funds is an important principle. The development of new public/ private partnerships makes this more important than ever. It is always important to be able to demonstrate how the wider public interest has been secured, and not concealed behind blanket ‘commercial in confidence’ restrictions.
Part 9: Land Use Tenancy
Q29 Do you agree or disagree with our proposal that there should be a Land Use Tenancy to allow people to undertake a range of land management activities? Agree
Please give some reasons for your answer in the text box below:
Tenants should be able to undertake the widest range of land management activities – and existing tenants should have a right to convert to any new measures.
Q30 Are there any land management activities you think should not be included within a Land Use Tenancy?
Please write your answer in the text box below:
No
Q31 Do you think that wider land use opportunities relating to diversification, such as renewable energy and agri-tourism, should be part of a Land Use Tenancy? Yes
Please give some reasons for your answer in the text box below:
Q32 Do you agree or disagree that a tenant farmer or a small landholder should, with the agreement of their landlord, have the ability to move their agricultural tenancy into a new Land Use Tenancy without having to bring their current lease to an end? Disagree
Please give some reasons for your answer in the text box below:
Existing tenants should have a right to convert to a new form of tenancy.
Q33 Do you agree or disagree that when a tenant farmer or small landholders’ tenancy is due to come to an end that the tenant and their landlord should be able to change the tenancy into a Land Use Tenancy without going through the process of waygo, with parties retaining their rights? Agree
Please give some reasons for your answer in the text box below:
Q34 How do you think the rent for a Land Use Tenancy should be calculated?
Please write your answer in the text box below:
Don’t know – this is not my area of expertise.
Q35 Would you use a Land Use Tenancy if you had access to a similar range of future Scottish Government payments which other kinds of land managers may receive? Don’t know
Please give some reasons for your answer in the text box below:
Q36 Do you think that there should be guidance to help a tenant and their landlord to agree and manage a Land Use Tenancy? Yes
Please give some reasons for your answers and outline who you think should be responsible for writing and managing the guidance in the text box below:
Q37 Do you think there should be a process to manage disputes between a tenant of a Land Use Tenancy and their landlord? Yes
Please give some reasons for your answers and outline how this process could be managed in the text box below:
Q38 Do you agree or disagree that tenants of a Land Use Tenancy and their landlords should be able to resolve their legal disputes in relation to the tenancy through the Scottish Land Court? Agree
Please give some reasons for your answers and outline additional ways in which disputes could be resolved in the text box below:
Q39 Do you have any other comments on our proposal for a Land Use Tenancy?
Please write your answer in the text box below:
No further comment
Part 10: Small landholdings
40 Would you like to be kept informed via email about the Small Landholding Consultation for the Land Reform Bill? We would use the email you provide in the ‘About you’ section to contact you. No
Part 11: Transparency: Who owns, controls and benefits from Scotland’s Land
Q41 Do you agree or disagree with our proposal to explore:
- Who should be able to acquire large-scale landholdings in Scotland: Agree
- The possibility of introducing a requirement that those seeking to acquire large-scale landholdings in Scotland need to be registered in an EU member state or in the UK for tax purposes: Agree
Please give some reasons for your answer in the text box below:
As argued in response to earlier questions, arbitrary definitions of ‘large-scale’ should be avoided. The general principle is that the extent of land holdings and beneficial ownership should be transparent and that these proposals should be explored. It isn’t clear how any of this affects the difficulties resulting from absenteeism.
Part 12: Other land related reforms
Q42 Do you have any views on what the future role of taxation could be to support land reform?
Please write your answer in the text box below:
Taxation is an essential dimension of landholding, so it is disappointing that no proposals have yet been brought forward. While there are limits defined by the devolution settlement, there is still a need for open debate about how devolved and reserved provisions interact and influence patterns of land holding and management.
Q43 How do you think the Scottish Government could use investment from natural capital to maximise:
Q43a) community benefit
Please write your answer in the text box below:
A much better exploration of the implications of investment from natural capital is urgently required, given the scale of interest in land acquisition allegedly for carbon offsets. There are serious risks that novel approaches compromise the wider public interest in the restoration and maintenance of natural systems and their associated biodiversity and may not even contribute to achieving net zero emissions.
Q43b) national benefit
Please write your answer in the text box below:
As above
Q44 Do you have any additional ideas or proposals for Land Reform in Scotland?
Please write your answer in the text box below:
The continuing failure to establish a comprehensive public register locating land holding and identifying beneficial owners is scandalous.
Part 13: Assessing impact
[Questions 45 to 51 no answers offered]