Land reform is politically hot in Scotland and has been for generations. Progressive reforms have been implemented mainly over the last 25 years, though arguably none have been as significant as the proposals contained in the current Land Reform (Scotland) Bill. At the same time many people feel that the Bill does not go far enough to radically restructure Scotland’s increasingly inequitable system of land governance. Here we give a brief overview of access to land before considering the changes to policy infrastructure and the operational reforms proposed in the Bill.
The current distribution of land ownership in Scotland reflects historic power relationships and magnifies ongoing inequalities. Of the 89% of land that is privately owned, 50% is owned by just 432 people. Academics have commented that Scotland has ‘the most concentrated, most inequitable, most unreformed and most undemocratic land ownership system in the entire developed world’. The Bill in this regard is long overdue.
The culture of land tenancy is similarly unreformed. There has been a 44% decline in tenant famers since the 1980s. Secure tenancies under the Agricultural Holdings (Scotland) Act 1991, which operate in continuity, include successions rights and a pre-emptive right to buy, have been slowly declining in numbers with few new tenancies of this nature being created. The speculative nature of land valuation is largely responsible for this; landowners who create certainty through secure tenancies lose value. The preferred alternative for many landowners has been limited duration tenancies. However the lack of security and the inability to raise capital on property make these tenancies unworkable for many tenants, particularly new entrants.
For many new entrants the combination of extortionate land prices, insecure tenure, and high operating costs, together with harsh and uncertain markets have made farming financially inaccessible. The demographic consequences of this cannot be understated; nearly 40% of farmers in Scotland are aged over 65, and only 12% are under 45.
The Land Reform Bill
Some of the most potentially radical aspects of the Land Reform Bill are those relating to the policy infrastructure (the administration that surrounds land governance), notably; the duty on Ministers to write and keep under review a Land Rights and Responsibility Statement, the establishment of a Land Commission, and the strengthening of existing information and participation duties.
The decision to place the creation of a Land Rights and Responsibilities Statement on a statutory footing is a unique legislative approach intended to ensure the continuity of a programme of land reform. The Statement is complemented by the creation of a Land Commission, an independent public body to review the impact and effectiveness of land law and policy, provide information and guidance, and recommend reform. Whilst some of the terms of commissioner eligibility should be strengthened to ensure representation of social and environmental justice experts, the provision for a Tenants Commissioner with jurisdiction to create a code of practice for agricultural holdings and hear complaints of breach of the code will significantly improve the quality, speed and cost of tenant-landowner conflict resolution.
Less positively, the provisions of the Bill purporting to strengthen access to information have been the subject of heavy critique from across civil and political society, predominantly for failing to prohibit the registration of land in tax havens, thereby continuing to allow for the obscuring of beneficial ownership.
Turning our focus to the operational reforms (the reforms that deal directly with access to land); the Bill builds upon existing provisions for community right to buy, it creates a new form of land tenancy, and it amends a large number of procedures relating to secure tenancies under the 1991 Act.
The extension of community right to buy to ‘further sustainable development’ was initially met with great hostility by landowners. Stage 2 scrutiny has since strengthened the conditions under which such buy-outs could happen, though campaigners have powerfully commented that ‘community buy-outs alone cannot reverse the disempowerment quietly tolerated across much of Scotland.’ To the disappointment of many, the Bill does not create a tenants right to buy. The new Modern Limited Duration Tenancies (MLDTs) created by the Bill are in many ways similar to existing limited duration tenancies. Notable improvements to tenant security include the provision for MLDTs to continue for a further 10 years if not terminated at the initial expiry date, and the requirement that landlords must provide fixed equipment.
The most significant reforms in the interest of tenants are to 1991 Act secure tenancies, including the significant expansion of succession rights, and provision for tenants to sell the lease back to the landowner or to a new entrant rather than completely surrendering all rights on retirement or death without a valid successor. The Bill also strengthens the process for a tenant seeking compensation for improvements made, and exercising a pre-emptive right to buy. Whilst these improvements to 1991 tenancies are important, with these tenancies declining it is unlikely that many new entrants will reap the benefits.
At Nourish Scotland we’re interested in improving access to land for a number of reasons, including land’s importance to realising socio-economic rights such as the right to food. Whilst the Scottish Government have avoided making explicit reference in the text of the Bill to the International Covenant on Economic, Social and Cultural Rights, which contains provisions on the right to food, it has been evident throughout the debate that the Bill seeks to rebalance public and private rights. Our current system of land governance treats the rights of landowners as absolute, whereas in reality land engages a number of other important rights too, all of which should be considered and balanced.
Land is a hugely emotive topic; it is of great significance and a credit to all that the frame in which the current debate is happening has moved on from retribution for clearances, and is instead forward looking and inclusive: about the Scotland we want to be. The land reform debate is demonstrative of a new era in Scottish politics; positive, participative, and in many ways radical – especially in comparison with our neighbouring nations. Though in terms of what is needed to fundamentally make our system of land governance fairer, the Bill has left many campaigners wanting. The Land Reform Bill is an important step towards increased access to land, but many, many more steps lie ahead.
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