Nobility may be up in arms, but Scotland's land reforms look fairly tame

The Duke of Argyll’s castle is under attack, according to a newspaper headline in reference to the Scottish government’s land reform bill. While the duke has a touch more land than the rest of us, his fears sound pretty ominous. Does the proposed legislation authorise a siege of Inveraray Castle, metaphorical or otherwise? Or in a country where a reported 50% of the private land is owned by fewer than 500 people and entities, are a few of the landed gentry getting their britches in a twist?

Scotland never had its French Revolution, with the transfer of property to the commoners that followed. Nor has it seen the active reorganisation of land away from wealthy British landowners of 20th-century Ireland. Where England had its enclosure movement, redesignating commonly owned land to the landowning classes in the 18th and 19th centuries, Scotland had its infamous Highland clearances in the same period: occupants were driven away by landlords seeking better income from sheep farming.

The Scottish setting, coupled with long-established rules of inheritance that have allowed land to pass from generation to generation without subdivision, has made for a fairly concentrated pattern of landownership compared to, say, Norway. That is not to say Scotland should adopt a system like these other countries, but it does encourage reflection. Paul Wheelhouse, the former Scottish environment minister, is on record as saying, “I wouldn’t design a system where you ended up with such a concentration of wealth and ownership in such a small group”.

The proposed reforms

The Land Reform (Scotland) Bill begins by providing for a “land rights and responsibilities statement” and a new Scottish Land Commission to ensure fairness over land ownership and use. Although symbolic and potentially important for future regulation of land, neither change will affect the law much. So what is it that might threaten a landowner’s entrenched fortification?

Is this land your land?Elliott Brown, CC BY-SA

One possibility might be the new tenant farming commissioner, who will have powers to ensure agricultural landlords behave, while overseeing new rules that will make it easier for some tenants to transfer or bequeath their tenancies. Sometimes tenants will even be entitled to acquire their rented land, though only when a landlord behaves particularly badly. Those who fulfil contractual obligations to the letter will have nothing to fear.

Another proposal is a right to find who controls the entities that own land, with possible civil penalties for non-compliance. There are also proposals to increase regulation of deer management and for abolishing the domestic rates-relief that sporting estates have enjoyed since 1994.

Attack or damp squib?

Most headline-grabbing of all might be a proposed new right for communities to acquire land for the purposes of sustainable development. This would operate where there is not a willing seller. At first glance, anything that involves compulsory transfer appears drastic, but this right is far from automatic.

Scottish ministers will only sanction a transfer if various tests are met. The transfer must further sustainable development; be in the public interest; significantly benefit the community; and be the only practicable way of achieving that benefit. Even then the landowner can expect market value, so we are not quite in the realms of confiscation.

It is particularly interesting to consider what the bill omits. It will improve some rights of agricultural tenants, but there is nothing resembling an absolute right to buy out a landlord. Neither is there any right of acquisition where land is not currently occupied by an agricultural tenant or near a community. This confines the reforms to reinforcing the rights of those already on the ground.

The government-appointed Land Reform Review Group recommended that land ownership be restricted to natural persons and EU-registered entities (full disclosure: I used to advise the group). The fact that this has been ignored means that the right to request ownership information may not create any more transparency with owners incorporated in a jurisdiction with lesser disclosure requirements than the UK and EU – many tax havens, for instance.

There were legitimate concerns that the recommendation could have affected investment, but recent reports north and south of the border highlight just how much of an issue transparency of ownership can be. Another proposal of the review group, that there should be an upper cap on the amount of land one person can own, also makes no appearance in the bill.

On the whole, though, the Scottish reforms seem committed to modestly addressing the country’s concentrated land ownership. While I predicted that the bill would not quite be the stuff of the French Revolution, the new proposals make some changes to the current rules against vested interests.

And remember it is still only a bill at this stage. There is still time for the Scottish government to listen to feedback from its call for evidence, and subsequent analysis from its committees and parliament as a whole. As with all land reform measures, these ones will ultimately be judged by the effect they have on the landscape itself. Only then will we know whether landowners like the Duke of Argyll have been right to raise the alarm.

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.