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The Second Clearances

Peter Gibb (2000) Land Reform Scotland

Contents:

Introduction

WITH A CENTURY of waiting since the land question last passed a legislator's lips, Scotland set itself on a course of hoped-for reform. Civil society, the creative force behind the reforming agenda, built the pressure for change. The Scottish Parliament is now running to catch up. Unfortunately, it faces two problems with its very first land bill.

The first problem is a deeply flawed legislative process. The second problem is that the actual legislation, is fundamentally flawed. These could have been dismissed as the teething troubles of a constitutional resettlement. Unfortunately they are potentially fatal because of Parliament's enthusiastic reaction to its task. The true strength of the very real arguments that favour the radical overhaul of Scotland's land tenure system, seem to be overwhelming Parliament and blinding it to the reality of what it is doing.

Among all the land reform policy proposals presented to the electorate, only one clearly stood out by virtue of its universal support: the reform or abolition of the feudal system of land tenure. From the Tories yielding support for "specific land reform to update the feudal system", through to the Scottish Socialist Party calling for "an end to Scotland's feudal landholding system", the differences in policy were only of depth and tone. This unanimity was all very gratifying: but when all the politicians agree on something, you can be sure of something going wrong somewhere. And so, here, it was.

The government's 1998 consultation was not all-encompassing. It did not cover, with equal attention, or openness to response, the whole range of the land reform agenda. The process did not seem to encourage public engagement in the reform of the tenure system itself. Instead, building a sense of almost cabalistic and reverential mystery, the on-going consultation papers referred to another process of idea formulation and policy development, parallel to the public one, going on more or less privately elsewhere. The Scottish Law Commission, we were told, was at work on the reform of land tenure law. A difficult, technical, specialist legal matter, placed in safe hands, was the message we were asked to accept.

A Public Consultation Sham

THE EXECUTIVE claimed in its Feudal Bill's accompanying 'Policy Memorandum' that "the Executive and previously the Scottish Office - consulted the public in a number of ways." It then lists only two ways in which it did so. The memorandum went on to claim that the general land reform consultation exercise revealed "overwhelming and substantial support for the abolition of the feudal system". This, indeed, it did. What it did not reveal was anything about the nature of the public reaction to the Law Commission's or the Scottish Executive's actual proposals for reform.

In February 1999, with the public consultation process 'completed', the Law Commission finally published its Report: with a hefty purchase-price tag, a consultation-exhausted land reform community did not, perhaps, examine the Report with due care. The Law Commission’s proposals were well developed; so well as to include a draft bill.

Four months later, on June 30, the Justice Department sent a letter to "all interested parties" announcing that the Minister intended to lay before parliament "with only minor modifications" the draft Bill prepared by the Law Commission. This seemed to come as a surprise to the land reform community, which had expected the proposals to be the subject of public consultation, discussion and comment at the very least - especially since the conclusions of the Law Commission's report had in some respects differed substantially from their 1991 findings. The Executive's letter added: "in view of the wide degree of knowledge which already exists on the Commission's proposals, the Executive does not propose to have a formal consultation exercise at this stage."

In retrospect - with the clarity, then dimmed by twelve month's consultations, now regained - this government statement can be seen for what it was. It is no less than an admission by the Executive that its own purpose in any "consultation" would be simply the better imparting of public "knowledge" of the Executive's already formulated, cut and dried proposals. Still, the letter ended upbeat and conscience-salving - "If, however, you wish to make comments" then they would be considered, if submitted within 37 days.

The Executive Co-opts the Authority of Parliament and the People

THIS APPROACH to 'open' government and the legislative process should be compared with the 'Principles' set out in the Report of the Consultative Steering Group on the Scottish Parliament, prescribing operating standards - "The Scottish Parliament should ... make possible a participative approach to the development, consideration and scrutiny of policy and legislation ... [and] adopt an 'open' legislative process ... to allow maximum consultation ... with groups, individuals and forums outside Parliament".

The Executive received around 65 responses to its June letter. The Executive is refusing to allow their release for public examination. A 'bureaucratic procedural error' on its part 'requires' it to regard these public representations as private correspondence. The Justice Department has intimated that it intends to correct this situation, by seeking the consent to publish of all the respondents individually; but this may "unfortunately take a little time". Freedom of Information? Meanwhile the legislation rolls on.

This state of affairs puts the Executive and the legislative process in what many might regard as a difficult situation. It means that, regarding the reform of the land tenure system:

Six Uncommon Men Invent a Bill for the New Scotland.

In 1991, the then Tory government decided that Scotland's 900 year-old feudal system was overdue for reform: land tenure was seen as a faulty part of the conveyancing system. In the prevailing political climate, few voices seemed to argue the contrary - and correct - position: namely, that the land tenure system is the underlying, philosophically based, constitutional framework, that establishes, shares and regulates the rights and duties that subsist between individuals and society at large, over the territory of the nation; and that conveyancing is the subpart - the technical administrative process of competently transferring legal title between holders.

From this fallacious starting-point, the Commission's work proceeded; purportedly as a purely technical legal matter, with no policy direction thought needed. But this did not of course preclude the necessity for philosophical and even political and policy inputs. In the absence of direction from other sources, the Commission seems to have taken the initiative: it 'interpreted' its own brief. It seems the non-elective Scottish Law Commission, a friendly group of six men sharing social and professional viewpoints that might be described as uncommon, drew upon their shared personal experiences, beliefs and consciousness, to create the philosophical foundation and structure of the Bill that is before us today.

The philosophical underpinnings of the Bill depart substantially from the legal status quo, as well as from what is arguably the popular cultural viewpoint in Scotland today. The Bill was developed with no democratic mandate or authority. Some measure of Scotland's well-developed popular land culture could have formed the foundation for its new legal system of land tenure. However, the ideas underlying the Bill seem quite alien to Scotland's culture, and its common law, and its traditions of the land - it misses a great opportunity. Just as the Scotland Bill opened with "There shall be a Scottish Parliament", so the tenure reform bill might yet have "The community of Scotland affirms its ultimate interest in the land of Scotland."

With a limited, almost "closed" consultation, in the manner of the day, the Commission published a report in 1991. The report sat on the shelf until 1997. The incoming New Labour government directed the work be the basis of the Commission's 1999 Report and Bill.

The Executive seems unabashed.

The Executive seems unabashed. On November 9 and 17 last year, the Justice and Home Affairs Committee of the Parliament, deliberating the principles of the Feudal Abolition Bill, took evidence from six invited bodies, including Scottish Environment Link (the umbrella organisation for environment groups in Scotland), the Scottish Land Reform Convention (the broad-based civic forum for land reform), and Land Reform Scotland (the campaign organisation). All three civil society organisations made substantial criticisms of the legislative process.

Link pointed out that "the [1991] consultation did not reach far in to the public domain, despite its far reaching implications". They complained that "This so-called [1999] consultation process [on feudal reform] is in stark contrast to the consultation process for the rest of the government's land reform programme", and concluded that the consultation was "inconsistent with the government's own commitment ... on the 'Sharing of Power". The Convention argued that "the consultation process has been flawed ... and inadequate". Land Reform Scotland complained that the consultation was "at best extremely lacking, but arguably misused in attempts to seek political legitimacy for the proposals".

On November 24, an Executive motion, asking Parliament to commend its consultation process was debated. The Minister, Jim Wallace, talked only about the Executive's reform plans until interrupted, when he mentioned consultation for a reluctant minute. The ensuing parliamentary debate only touched on, and discussed not at all, complaints of the feudal reform consultation process. In closing the debate for the Executive - the danger of difficult questions having passed - the Deputy Minister, Angus MacKay, was very keen to then remind Parliament of the motion - "the Executive has gone out of its way to make the process of consultation ... as thorough, open and lengthy as necessary.... We are happy to take a consultative approach all the way through to the legislation's enactment."

This self-congratulatory oratory should be seen in the context of the substantial criticism of the consultation process being levied by civil society - criticism reiterated directly to the Deputy Minister only the previous week, when he attended the Scottish Land Reform Convention's annual conference. The Executive's parliamentary motion could be read as a cynical (and successful) attempt to co-opt the authority of Parliament to its cause, when popular opinion was moving against it. Perhaps this is another example of the yet enduring weakness of Parliament, within the existing constitutional framework?

No Democratic Mandate for the Current Feudal Reform Bill

NOW, A BILL is passing through the Parliament, which will have massive constitutional implications: yet it is built on philosophical foundations which lack democratic mandate; has haywire policy connotations; and contents which have not been the subject of any public consultation or debate. Where are the 'new politics' of Scotland?

The legislative process that has brought the Abolition of Feudal Tenure etc. (Scotland) Bill, has been fundamentally flawed, and at odds with Scotland's stated aspirations for standards of governance. While the bill is pretended to be simply a technical spring cleaning of an archaic property system, it is not - it is a constitutional Trojan horse. And our new Parliament will let it through our gates at its peril.

The Landowner Becomes King and is Free to Trade under the Name of Scotland

LAND REFORM is for the public interest. That is its point. Land reform is not a process that is promoted with a view to establishing, reinforcing, or extending the private rights of individuals. Land reform seeks to properly define and secure the duty of all citizens, individually and collectively, towards the land that has been entrusted to them. Land reform sets itself the task of redefining and re-balancing the distribution of public and private rights and obligations. This process entails the removal of undue privilege where it has arisen, and re-establishing natural, just or lawful rights that have, over time, been lost.

Oddly, within the draft Feudal Abolition Bill itself, there is only passing and peripheral reference (twice in the context of 'Conservation Burdens') to the matter of the public interest. In the Bill's accompanying Explanatory Note there is even less convincing reference. Within the Bill's Policy Memorandum, designed to set out the policy context of the proposed legislation, there is, unbelievably, no reference to the public interest whatsoever. This begs the question as to how to legislate in the public interest without any mention of that interest?

'Ownership' of land in Scotland is, at present, legally, only the 'dominium utile' or the 'use' of the land. The present Bill would convert this to private 'ownership', clean and simple. In the process would be lost the ultimate public interest of the community of Scotland in the land of Scotland. It must be seen as a vast transfer of rights over Scotland's land and natural resources, presently held in disparate ways, into private ownership. This Bill will make all Scots, who are presently stewards of Scotland, aliens on the land of others. Scotland will become a syndicate of privately (or otherwise) owned sites, trading under the name of 'Scotland'.

Further Information

Land Reform Scotland is a membership organisation established to inform, debate and lobby on new ways to establish balanced relationships between the individual, the community and the environment on core issues of the political economy like income distribution, property rights and land value taxation. It can be contacted at: Land Reform Scotland, The Chalmer, Mill of Towie, Cullen, By Buckie, Banffshire, AB56 4TA, Scotland, UK. (tel: 01542 841 842 fax: 01542 841 555 or e-mail: gibb@landreformscotland.org ) website: www.LandReformScotland.org

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