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by John Digney (1999) - editor of Wild Land News and a director of Land Reform Scotland.
 | Background | ||||||
| Introduction
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In this article John Digney takes a critical look at some of the key proposals to emerge from the Scottish Office's Land Reform consultation exercise. Of particular relevance are John's concerns on the Scottish Law Commission's Feudal Reform proposals in which the public interest in the land resource would be abolished and a system of absolute ownership similar to English Law introduced.
The Caledonia Centre for Social Development as part of its popular education programme on Land Issues wishes to make this article available to a wider audience and has edited the piece. The article was first published in the Summer 1999 edition of the Scottish Wild Land News.
The work of the Scottish Office's Land Reform Policy Group was completed with the publication of its third and final document Recommendations for Action in early January 1999. In general the proposals follow on from the previous consultation paper Identifying the Solutions to which there had been 846 responses, well over twice the number received to the original Identifying the Problems.
However, the following issues are of considerable significance to Scottish civil society:
The Government's Access Forum produced its report in November 1998, in time for its recommendations to be incorporated into the first Land Reform document -Identifying the Problems, notably that "A right of responsible access to land for informal recreation and passage, on enclosed as well as open and hill ground, should be enshrined in law".
The Scottish Wild Land Group fully endorses this policy and its inclusion in the Land Reform document. In view of the level of consensus among the members of the Access Forum, there is now the opportunity for Scotland to forge ahead with a truly enlightened policy on access. The Scottish Wild Land Group urges the new Parliament to make access legislation a priority.
The vision underpinning the Scottish Office land reform strategy is one of increased diversity and community involvement in the ownership and use of land. The Scottish Wild Land Group wholeheartedly supports this
However, the mechanisms proposed for achieving this vision are far from convincing. The core recommendation is the community-right-to-buy, which would come into operation in appropriate cases where it was deemed to be in the public interest. Above a chosen acreage threshold the Government could exercise a right to delay open market sale for a given period, to allow the community the opportunity to raise the funds. The price would be set by a Government Appointed Valuer with disputes over valuation settled by the Lands Tribunal. The legislation would only apply when land was offered for sale, and only to the acreage actually for sale - neither more nor less.
Not unexpectedly, this provoked a fierce reaction from the Scottish Landowners Federation, who threatened to go to the European Court against such legislation. Not only would the private seller have a purchaser nominated for him, he would also have a price dictated by bureaucrats.
However, there would appear to be plenty of loopholes for the outraged landowner to exploit. He could offer inappropriate acreage's - a community might want 2000 acres but he could scupper their chances by offering 20,000.
At worst, the prospect of receiving well below the open market price could discourage landowners from selling at all unless absolutely necessary. In the absence of any incentive to release land, the supply of land on the market could seriously dry up.
As a flagship proposal, this is a disappointment, and its is hard to see it making much of a dent in the monopolistic pattern of land owning in rural Scotland.
This could prove to be the most serious misjudgement in the whole land reform programme. With the blessing of the Scottish Office, the Scottish Law Commission (SLC) has now produced draft legislation to abolish the feudal system and replace it with a system of absolute or outright ownership of land.
Few people would argue with the declared objective "to remove outdated and unfair land law". It is certainly unacceptable to preserve the unbalanced relationship between superiors and vassals, which today still gives one citizen power over another merely through the possession of titles to land. The abolition of this system is likely to have immediate popular appeal, but ironically, the results of the SLC proposals could be to diminish, rather than increase, the public interest in the land resource.
The Scottish Office acknowledges that to abolish superiority's would mean that, "The Crown would be affected in the same way as any other superior, so that land would cease to be held from the Crown".
The implications of this are enormous - in Scotland the Crown as the Paramount Superior holds virtually all the land. In this role, the Crown (as distinct from the monarch) acts as a figurehead on behalf of the community at large, as the source of all land titles.
Robin Callander brilliantly explains the full significance of the Crown's role in his book How Scotland is Owned (Canongate Books, 1998). As Callander observes, "The Crown holds all land on the basis of its sovereignty and thus holds it in trust for the public and on behalf of the public interest".
To extinguish the Crown's role as the Paramount Superior would therefore be to wipe out the public interest in the land resource. In his 1997 McEwan Lecture, Professor David McCrone warned that in abolishing superiority's we must not "throw out the social baby (and public interest) with the feudal bath-water". To remove the Crown from the apex of the land-owning pyramid would leave the current landowners at the top as outright owners - and in Andy Wightman's words it would be tantamount "to giving the country away".
With 50 percent of the land in the hands of just 600 people, to create outright ownership would simply consolidate this monopoly - hardly consistent with the Scottish Office's declared vision of fairness and increased diversity of ownership. The vital distinction would be lost between ownership of land and the ownership of manufactured goods.
The remnants of the feudal system give a very distorted picture of its original concept, which ensured that the rights and privileges of ownership were balanced by reciprocal obligation on the owner to the rest of society - in those days amounting principally to the provision of military service. Over the centuries, the landowners used their immense political power to shed their responsibilities while retaining the rights of ownership, and today's unbalanced system evolved.
Rather than throwing the baby out with the bath-water it would be perfectly possible to restore the balance by fiscal means if all landowners, large or small, rural and urban, were obliged to contribute to the cost of government in accordance with the annual economic rental value of man-made improvements. This is the principal of land-value taxation, which the Scottish Office has placed on a list of issues for further study. It would be an unequivocal assertion of the public interest in the land resource, and of the conditional nature of tenure.
Robin Callander concludes in his book that there is a legal and technical basis for the view that "the land belongs to all the people of Scotland". It is unlikely that the Government would deliberately cheat its own citizens of their birthright to the land, yet the roller coaster of feudal reform now threatens to do just that.
Apart from the obvious moral and economic considerations, any compromise to the public interest in the land resource would be a serious setback to civil society in Scotland. The success of the Scottish Land Reform Convention's lobbying and advocacy efforts and that of its participating civil society organisations is a clear recognition that the land is indeed a common resource and that ownership carries responsibilities of stewardship, which are not merely at the whim of the landowner but ultimately determined by society as a whole.
Professor McCrone warned that we might end up with, "the worst of both worlds: high concentrations of land ownership, coupled with virtually no rights of public interest to speak of ".
It is up to the Scottish Parliament and our democratically elected politicians to ensure that the public right in land and the public interest in the land resource are not knowingly given away to a small landed elite.