'Radical' land reforms in Scotland are nothing of the sort

You might be forgiven for thinking that the rules regarding a patch of land north and south of the Anglo-Scottish border do not vary greatly, but in fact they are governed by completely different legal traditions.

For example in Cumbria you might heed a sign saying “Trespassers Will Be Prosecuted”, but such signs are less effective in Aberdeenshire, as simply being on someone’s land in Scotland might not actually be a crime. Scots law does not think of title in terms such as “freehold” and “leasehold”, and in fact has rules that prevent an owner of land granting a long lease of more than 175 years.

Now there are signs that the ground is shifting even further in Scotland – in a regulatory rather than a tectonic sense – after the Scottish government confirmed plans shortly after the UK election to press ahead with land reform legislation before Holyrood’s summer recess.

This will make the two systems even more different and make life slightly harder in Scotland for those who own substantial tracts of land. First Minister Nicola Sturgeon has billed the proposals as “radical”, but as we shall see, they are not exactly red in tooth and claw.

Devolution gave Scotland a legislature hungry for things to do, and reform of land law became one of Holyrood’s early priorities. It swept away the remains of the antiquated feudal system that dated back to medieval times (and was long abolished in England); codified rights of access to the countryside; and introduced community rights of acquisition of land in rural areas and small towns where the owner had decided to sell.

England also enjoyed some land reform, with the Countryside and Rights of Way Act 2000 facilitating outdoor access and later the Localism Act 2011 giving rights to communities relating to important local assets. Important as these measures are, they are not as bold as the Scottish reforms: the access rights are not quite as liberal, while the community right is simply a right to bid, not a right of first refusal.

Even then, the Scottish appetite for reform has clearly not been sated. Perhaps emboldened by an outright majority at Holyrood, but also with the more-than-tacit support of the Labour Party, the SNP began further reform from 2011. First came the Community Empowerment Bill, which is working through Holyrood just now and is partly a response to the community right to buy not having a massive take-up rate (at least outside the Highlands and Islands, where special rules exist for land under crofting tenure). The bill will improve existing rights of acquisition for communities, remove some bureaucracy and extend the previously rural right to almost any land in Scotland, while bringing a new right to force a sale where land is “neglected” or “abandoned”.

But the main event is the one to follow. It came out of last winter’s consultation, which received more than 1,000 responses. Key proposals include:

• Give the state powers to force a sale where land ownership or the behaviour of a landowner is a barrier to sustainable development.
• Remove tax breaks for shooting and deerstalking estates.
• Reform property inheritance in a way that could prevent estates being passed to one child as a single unit.
• Set up a Scottish Land Reform Commission to assess how existing policies are faring and weigh the evidence for further measures.

Objections and observations

Although we don’t know yet what exactly the new legislation will take forward, its imminence has contributed to a fair amount of posturing. Concerns have been raised that the reforms will threaten food security, or cost the taxpayer a lot of compensation, and there have been assertions that the use of land is more important than ownership.

On the argument that who owns the land does not really matter, it is true that some legal measures apply to land irrespective of ownership. Nature conservation would be one example. Yet a landowner still has much autonomy to decide what to do with land, so ownership retains a crucial role. Particularly in rural Scotland, there is a perception that large landowners have a lot of control. In different contexts, competition law breaks up such dominant positions. Arguably there is a case to do something similar here.

On the idea that disturbing current ownership might affect food security by disrupting agriculture, you don’t need to look far into history to see land reform projects that have not been accompanied by suitable education or equipment, and consequently harmed productivity. But there may be circumstances where a community will care more about its 100-acre plot than a notional landowner who manages 10,000 acres, or where a farmer in charge of a smallholding will invest more time and money than a landlord of a large number of tenanted holdings would. Unsurprisingly, the Scottish Tenant Farmers’ Association has rejected food-security concerns.

Finally, regardless of how popular a policy is, any new legislation will need to consider the rights of existing owners. For example Article 1, Protocol 1 of the European Convention on Human Rights guarantees peaceful enjoyment of possessions, which should not be disturbed unless it is in the public interest and with proper compensation.

This will be a very fine balancing act and one that the Scottish parliament must manage carefully to avoid the risk of the courts overturning the legislation: there have already been a number of challenges to Scottish legislation on ECHR grounds, including one successful challenge relating to the above provision. That said, human rights are not simply a blocking force in favour of current owners. For instance the UN International Covenant on Economic, Social and Cultural Rights, to which the UK is a signatory, guarantees certain rights such as sanitation, food and housing.

What next?

The reforms could well see the ground shift further. If the proposed powers of intervention to promote sustainable development and the tax changes in relation to sporting estates go ahead, they are sure to put existing practices by existing landowners under the microscope.

That 1789 feeling?Henry Singleton painting

Yet the radical nature of these proposals could equally be overstated. For example, many community owners are already under a duty to ensure they manage land in a way that furthers sustainable development. Can non-community owners object to a similar test? The proposed changes to the law of inheritance would actually bring Scotland into line with much of Europe – and implement a recent recommendation of the Scottish Law Commission. Removal of a current business-rate exemption is not exactly equivalent to the introduction of a land-value tax (as proposed by the Lib Dems and Greens).

The distinction with England must also be kept in perspective. Where an Englishman’s home is his castle, the Scottish reforms will not prevent a Scotsman’s home from being his castle. He will just have to manage the castle grounds in a suitable manner. In fact, a Scotsman’s castle still seems rather more secure than an English Housing Association’s housing stock, at least in ownership terms.

Everything turns on what the bill says, of course. But the reality is this: we are not yet dealing with the jurisprudence of the French or Russian revolutions. Private property in Scotland in safe: for now, at any rate.

Adviser to the Scottish Government appointed Land Reform Review Group June 2013-May 2014. Solicitor and member of the Law Society of Scotland, non-practising Solicitor in England & Wales. Fellow of the Higher Education Academy.