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THE 2ND JOHN MCEWEN MEMORIAL LECTURE 1995

TOWARDS A LAND REFORM AGENDA FOR A SCOTS PARLIAMENT

DR JAMES HUNTER, 22 SEPTEMBER 1995

TULLOCH CASTLE HOTEL, DINGWALL

SUPPORTED BY: ROSS & CROMARTY ENTERPRISE, ROSS & CROMARTY DISTRICT COUNCIL

Dr James Hunter is a freelance historian, writer and broadcaster. He is chairman of Skye and Lochalsh Enterprise and a member of the North West Regional Board of Scottish Natural Heritage. A former member of the board of Highlands and Islands Enterprise, he was founding director of the Scottish Crofters Union and has had a long involvement in rural development issues. Dr Hunter's seventh book, On the Other Side of Sorrow: Nature and People in the Scottish Highlands, will be published in October 1995.

CONTENTS

1 AN END TO FEUDALISM

On the one occasion I met John McEwen, we talked, I remember, about some of the events which had affected John politically. We talked, for instance, of the Liberal Party's overwhelming victory in the 1906 general election. We talked of the extent to which the appeal of Liberal candidates, in the Scottish countryside at any rate, was bound up with their commitment to far-reaching land reform. And I heard then how a trainee forester called John McEwen, as his older self a little ruefully recalled, half expected the Liberal triumph to be followed by the spectacle of Scotland's landlords dangling, as John put it, from roadside telegraph poles.

The land reforms resulting from that 1906 election, though certainly not worthless, were not quite in accordance with the 18-year-old John McEwen's expectations. But those expectations were by no means unfounded. They were rooted in one of those moments when radical change becomes politically feasible. Symbolised by David Lloyd George introducing old age pensions in the wake of 1906; symbolised equally by Aneurin Bevan setting up the NHS in the aftermath of Labour's landslide in 1945; symbolised also, I should add, by the privatisation programme made possible by Margaret Thatcher's three electoral victories: these are moments when society can be moved in new directions.

My lecture assumes that, here in Scotland, we are approaching a further moment of that sort. My lecture assumes that, one way or another, a Scots parliament will, in due course, be restored. My lecture assumes that such a parliament, for a year or two at all events, will want, and be expected, to demonstrate that it is in the business of reform.

So much for my lecture's underpinnings. Now to its main contention:

that Scotland's future parliament should alter the means by which our country regulates the ownership of land.

This is not necessarily to urge a revolution. But it is to recognise that our land law is, in key respects, outmoded. As was acknowledged by Professor Bryan MacGregor in the first of these memorial lectures, this is an almost inevitable consequence of the fact that all societies - including Scotland's - develop in a manner which, from time to time, necessitates reform of their land laws. Professor MacGregor made the point thus:

Land tenure systems are not fixed. They change, or are changed, to meet changing requirements ... Some systems are able to adapt more quickly than others. Some societies have governments which are more able or willing to intervene when and if necessary. Change can be facilitated or prevented by the power structures in society and by the influence of different groups over a government's legislative programme. (0)

The mechanisms by which land reformers might attempt to gain such influence over government - over a future Scottish government, in particular - are matters I shall deal with in due course. But first a little more from the McEwen Lecture of some two years ago:

There is no best system in isolation and in the abstract. Land tenure systems differ ... They are historically and socially contingent ... The present structure of tenure in rural Scotland is the interaction of complex historical and economic forces ... There is no reason to assume that it is the best for contemporary society or even that it is able to deliver desired policy objectives. Indeed, many of the residual aspects of feudalism might suggest urgent change is required. (1)

Mark these words well. They emphasise the possibility of Scots land law reform. They stress that such reform may be desirable. They focus, finally, on the anachronistic persistence of feudal forms in laws now dealing with a society which, in any historical or sociological sense of the term, ceased to be feudal many centuries ago.

Most notably by means of the 1974 legislation which allowed feu-duties to be bought out or redeemed, a start has been made on removing from Scots land law the more self-evidently antique vestiges of feudalism. But for all that it may now be, as has been recently remarked, "a theoretical construct" rather than "a living system", feudalism is at the heart of Scotland's land law still. And this, in 1995, is indefensible - not least because of the extent to which feudal superiors, by virtue of their ability to exercise a veto over the sale or development of land, can so readily engage in what one commentator calls "lucrative legalised blackmail". (3)

The case for the abolition of our feudal system was set out in some detail by the Scottish Law Commission in 1991. (4) I believe that case to be unanswerable. And because I want to focus on other aspects of land law reform, particularly on the issue of how we might obtain a more variegated pattern of landownership here in the Highlands, I do not propose to comment further on it. I do, however, have some thoughts as to how feudalism's eradication from our land law might be made the occasion for further measures intended to reform and to diversify a rural landownership structure which - not least in the Highlands and Islands - has evolved in ways which concentrate an undue amount of influence, or so it seems to me, in too few hands.

At the centre of our current land law is the concept that all ownership rights in land are derived, in the end, from the Crown which, as our feudal system's paramount superior, not only exercises dominion over the entire landmass of Scotland but also exercises equal dominion over everything below the Scottish landmass, above the Scottish landmass and - for some miles out to sea - around the Scottish landmass.

This adds up to a lot of real estate. And though Crown rights to much of it have long since been conveyed to others, the Crown remains in-hand proprietor, so to speak, of a good deal that is valuable. Not least among those assets is our territorial seabed - which, like much of our shoreline, is Crown property.

Perhaps I should make clear, before pursuing this point further, just what I mean by "Crown". That term does not refer to Queen Elizabeth personally. It refers rather to the sovereign power which is certainly symbolised by the monarch but which is exercised, in practice, by the state.

Sovereignty and territoriality, of course, have long been linked. A leading Scottish legal text makes the point thus:

In feudalism landownership and sovereignty coincided, so that the Crown's sovereignty over Scotland and its dominium eminens, its ultimate territorial superiority, were the same thing, were identical concepts. (5)

That is not the end of the matter, however. Remember that the Declaration of Arbroath, in 1320, insisted that even Robert the Bruce, perhaps our greatest king and very much a feudal monarch, derived his power from the community of the realm. Recollect the way such doctrines have resounded through our history ever since. Recall the wording of the Claim of Right as signed by many eminent Scots in 1989:

We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of government best suited to their needs. (6)

If we accept - as the authors of the Declaration of Arbroath and the authors of the Claim of Right accepted - that sovereignty in Scotland resides ultimately in the people, and if we equally accept that our land laws are founded on the notion that ownership of land is vested ultimately in the Crown, then it can consequentially be argued, since the Scottish Crown is finally subordinate to the people, that the territory of Scotland should be regarded as belonging, in the last analysis, to the Scots nation as a whole.

These are primarily matters for constitutional theoreticians. And most of what I have to say today is in no way contingent on them. But it might, all the same, be symbolically appropriate for the Scots parliament - which will derive authority, in terms of the Claim of Right, from Scotland's people - to base a Scottish land reform programme on this Scots parliament's own claim to be, in some historically overarching sense, our land's supreme custodian.

Any such land reform programme, I contend, should start with feudalism's abolition. Taking advantage of the fact that title to land in Scotland is now being registered more fully than ever before, a Scots parliament - building on the Scottish Law Commission's recommendation that "the existing feudal system ... be replaced by a system of absolute ownership" - ought promptly to dispose of all the various superiorities and other obsolescent feudal relics which allow both individuals and institutions to exercise rights over land ostensibly in the ownership of others. (7)

Precisely how such a reform might be accomplished is a matter for debate. But my own preference, for reasons which I shall explain as I go on, would be to retain the concept of Scotland's territory being ultimately vested in the Crown or, if you prefer, in the sovereign people - while making clear that those presently having title to a portion of this territory would henceforth be regarded, in law, as holding such a portion, however large or small, directly from the Crown, or from the sovereign people, rather than from one or other of the intervening feudatories who loom so large in our current legal system.

In the course of placing ownership of land on this new basis, the Scots parliament might also alter some at least of the arrangements presently governing the management of those assets which, as previously noted, are still in the Crown's hands.

Suppose, for example, that the Scots parliament was to transfer to coastal communities the various roles in respect of the seabed and the foreshore which are currently exercised, on behalf of the Crown, by the Crown Estate Commissioners. Such a reform would have different outcomes in different localities. But here in the Highlands and Islands, the area on which my lecture concentrates, it would immediately provide communities both with new sources of revenue (not least from fish-farm rents) and with the means of exercising planning functions in relation to offshore developments.

So far, and here I summarise, I have suggested:

Opportunities of the seabed type could also arise, of course, in connection with the rather different - and more recent - types of state ownership involving bodies like the Forestry Commission (FC) and the Scottish Office Agriculture and Fisheries Department (SOAFD). Hence my further suggestion:

Land reform, however, should not stop with Crown, or state-owned assets. That is why I recommend:

To these points, I shall return shortly. But first a brief digression.

Contents

2 THE LAND REFORM LOCOMOTIVE

In the famine decade of the 1840s, an Irish nationalist, James Fintan Lalor by name, was puzzling as to why the Irish people, despite their manifest sufferings, were so unwilling to be mobilised in the cause of recreating a parliament in Dublin. Underlying the evident lack of popular enthusiasm for the concept of home rule, so Fintan Lalor postulated, was the absence of a concrete link between restoring Ireland's parliament and putting rapidly to rights the many problems which confronted Ireland's population. Home rule, wrote Fintan Lalor, had been reduced by far too many of its own proponents to a mere abstraction - to a set of constitutional doctrines which, for all that they might fascinate professional politicians, meant practically nothing to hungry men and women looking only to secure their own survival. But if home rule, Fintan Lalor argued, were to be firmly connected with something real and tangible; if, for example, it were to be seen as the essential prelude to reforms intended to rid Ireland of its detested landlords; then the home rule project would cease to be the exclusive property of what we nowadays call the chattering classes and would become a mass crusade.

By way of making his point metaphorically, Fintan Lalor - in this a typical Victorian - imagined the home rule train's stalled carriages being linked, with instantly dramatic consequences, to a steam locomotive representing land reform. And it is something of a testimony to the accuracy of his analysis that, when the link which Lalor canvassed was finally put in place, by Michael Davitt's Irish Land League and by Charles Stewart Parnell's Irish Party, the political results were much as Lalor forecast.

If the cause of Scottish home rule has at times seemed every bit as lacking in momentum as the cause of Irish home rule did in Fintan Lalor's time, then this, I feel, can be attributed to very similar causes. Our prospective Scots parliament has been extensively debated. But much of that debate has focused on the parliament's internal workings - on its committee structure and on its gender balance, for instance - instead of on the arguably more vital question of what such a Scots parliament would actually do. Popular support for constitutional innovation is consequently passive. Beyond a relatively restricted band of party activists, as has been shown by numerous opinion polls, the cause of recreating Scotland's parliament, while generally endorsed, is backed with no great fervour. Our equivalent of Fintan Lalor's locomotive has yet to be attached to Scotland's home rule train.

Could land reform, in our time as in Fintan Lalor's, provide the energy required to set a constitutional project fairly racing down the tracks?

In suggesting - in this lecture - that it could, I am conscious of the huge divide between late-twentieth-century Scotland and mid-nineteenth-century Ireland. Lalor's Ireland, Davitt's Ireland, Parnell's Ireland was an essentially agrarian society. Modern Scotland is an industrial, even post-industrial, country; a place where far more families live in towns than live upon the land; a place where only the tiniest of minorities obtains a livelihood from agriculture. It would thus be quite dishonest to maintain that land reform, however all-embracing, could affect the lives of Scots in the way that Irish lives were felt to have been changed so hugely for the better by the various measures which eradicated Ireland's brand of landlordism.

And yet the land, even in late-twentieth-century Scotland, remains a very powerful symbol.

Just think, for instance, of the interest generated - in urban Scotland every bit as much as rural Scotland - by the campaign which resulted in the quite tremendous victory of the Assynt Crofters Trust.

Why did so many Scots feel Assynt mattered? What is it that so grips our media when some community, however insignificant numerically, as on Raasay in the 1970s or on the Isle of Eigg more recently, becomes embroiled in conflict with its landlord?

Although this is not the place to set them out in detail, meaningful answers can be given to these questions: answers which acknowledge all the ways our rural landscapes - and our Highland landscapes, in particular - are bound up with our sense of what it is that makes us Scots; answers which reflect the fact that an astonishingly high proportion of the total Scottish population, as can be seen by glancing at an Edinburgh or Glasgow phone directory, is of Highland origin; answers which reflect the consequent extent to which Scots as a whole, despite the best endeavours of our more reactionary historians, continue to blame landlords both for the Highland Clearances and for the subsequent disintegration - social, economic, cultural, demographic - of communities which, or so most Scots consider, should have been permitted to survive.

It was to sentiment of this sort that the late Willie Ross appealed when explaining why the Labour government of 1964 was so committed to the formation of the Highlands and Islands Development Board. Ross commented:

For 200 years, the Highlander has been the man on Scotland's conscience ... No part of Scotland has been given a shabbier deal by history. (8)

What Willie Ross said next is even more directly relevant to this lecture's central purpose. For he went on to stress why, in the Highlands anyway, land reform and regional development are inseparably connected. The occasion, as the Hansard record shows, was one of some emotion:

If there is bitterness in my voice, I can assure the House that there is bitterness in Scotland, too, when we recollect the history of these areas ... We have [in the Scottish Highlands] nine million acres ... and we are short of land! Surely one of the first powers that must be given [to the Highland Board] is a power related to the proper use of the land itself. To my mind, this is basic to any improvement in the Highlands. Anyone who denies the Board powers over land is suggesting that the Board should not function effectively at all ... Land is the basic natural resource of the Highlands and any plan for economic and social development would be meaningless if proper use of the land were not a part of it ... Clearly, the Board must have power to acquire the land, by compulsion if necessary, if it is to be effective. (9)

In the event, as everybody knows, the HIDB's record, in respect at least of the land reform hopes which Willie Ross so confidently invested in it, was one of total and unmitigated failure. And it is, of course, by no means inconceivable that a Scots parliament will be as unwilling, or unable, as the HIDB was unwilling, or unable, to get properly to grips with land reform. That is why it is important now to signal - as this lecture tries to signal - that land reform will constitute a vital test of the Scots parliament's more general disposition.

A parliament which is prepared to act decisively on land will be a parliament which will thus demonstrate its willingness to alter Scotland fundamentally. A parliament which, conversely, shies away from land reform will be a parliament which, by its dodging of this most symbolic issue, will make clear that, though we shall again have our own legislature, great consequences will not follow from that fact.

Contents

3 ORGANISING LAND REFORM

This is the point in my lecture at which you might expect me to outline the case for land reform; the point at which I could appropriately treat you to a charge-sheet listing crimes which might begin with nineteenth-century evictions and end with the ecological degradation, the loss of biodiversity, resulting from the gross mismanagement of far too many of our so-called sporting properties. But instead of once again rehearsing the innumerable and well-worn criticisms that can be made of our current landownership structure, I intend to concentrate today on the way forward. There is no better text, in this connection, than the concluding words of Who Owns Scotland?, the book which John McEwen published 18 years ago next month:

We have had over the past 100 years or so plenty of enquiries into land in all its aspects. We need one more. A Royal Commission appointed to enquire deeply into the failure of private landlords in their so-called stewardship of land in Britain. The Commission to be composed of men and women from all classes of society. To be given strong, clear, specific terms of reference, and a reasonable time, say three years, in which to report back ... with clear conclusions and recommendations. Only a Labour government can do this and the sooner the better. (10)

Suppose that the Labour Party were shortly to set up a Scottish Land Reform Committee. Suppose that the committee were asked to pave the way for a Land Reform Bill to be placed, in time, before a Scots parliament. Suppose that, in the spring of 1997, the Labour Party were to win a general election. Suppose that the party's earlier committee were then to be given both the status and resources of a Royal Commission but that the basic task at issue - to prepare a Land Reform Bill for consideration by the Scots parliament - were to remain exactly as before. Suppose that Tony Blair were to honour his pledge to legislate for a Scots parliament within one year of the election of a Labour government. And suppose, lastly, that the parliament were to be in operation by the start of 1999.

In front of our new parliament, when it first met, would be the Land Reform Bill prepared by the Land Reform Commission. Enacting the Bill could thus be one of the initial tasks of our reinstated legislature. And the Bill might even be framed in such a way as to take effect - appropriately enough - on 1 January 2000.

Although you may consider this objective just a little bit ambitious, it is very much my own conviction that the 50 or so months remaining of this century provide sufficient time to make a go of land reform. The scenario I have outlined - starting with a Labour Land Committee and ending with a Land Bill - makes that point by showing how, in principle, reform might be accomplished. What leaves me slightly ill-at-ease, however, is the starring role my own scenario - following John McEwen - gives to the Labour Party.

While by no means ruling out the possibility that Labour might go down the road I have suggested; while recognising that the Scottish National Party, which has already launched an Independent Land Commission, is committed to reform; while taking account of the fact that Liberal-Democrats have their own land reform tradition; while being well aware, as I am about to demonstrate, that Tories have been land reformers, too: while thus paying due attention to the contribution that a wide variety of party politicians could, and no doubt will, make to land reform generally, it seems to me important - and here I stress again the Highland focus of my lecture - that those of us who live and work in the northern half of Scotland should not depend entirely on our national politicians to bring about the changes which so many of us want.

So to another set of propositions:

A Highland Land Reform Committee ought ideally to be non-political in any party sense. And though its members might wish to examine the very general issues I touched on at the outset of my lecture, such a committee should concentrate, in my view, on how the wider rationalisation and modernisation of Scots land law by a Scots parliament might be made the occasion for additional land reform in the Highlands.

Here let me put my own cards on the table. What I should like to see occur, by way of Highland land reform, would be the following:

There is, in all of this, much devil in the detail. That is why we need a Highland Land Reform Committee. And that is why, this morning, I propose to stick with generalities; with the land reform process, not as it might apply to this or that piece of territory, but as it might apply, in principle, to the North of Scotland as a whole.

Contents

4 THE REDISTRIBUTION OF CROWN ASSETS AND STATE-OWNED LAND

Much of what I have to say from this point forward, I should emphasise, is highly tentative. It is meant primarily to stimulate debate. And it may well be that such debate will lead us all in very different directions from those I am about to indicate.

Trusting that you will keep that rider very much in mind, I now return to what I touched on earlier, the seabed.

While the Crown should retain its ownership rights to our coastal seabed, the management of those rights, I reiterate, should be transferred by the Scots parliament from the Crown Estate Commissioners to coastal communities. Management of Crown rights to our foreshores - where those rights have not already been conveyed to others - should be similarly transferred.

Much the same principle should apply to a good deal of the land which is today state-owned.

The various crofting estates which are administered by SOAFD should be placed in community ownership.

And while the Forestry Commission might continue to have a role in developing new woodlands, existing Commission plantations should, wherever possible, be transferred to such rural communities, individual farmers or locally-resident landowners as want to acquire them.

Let me here draw breath and make the point that, though time does not permit me to present more than an outline of my proposed reforms, the general thrust of what I am about, I hope, is fairly clear. My aim is to expand local ownership, and thus to enhance local control, both of land and of other resources. This could be brought about directly by an Act of the Scots Parliament. It is more probable, however, that some officially-sponsored body, provisionally labelled here as a Land Commission, will be required to handle all the various practicalities - legal, financial and otherwise - of the different reforms I am urging.

Nor, as hinted earlier, should a Land Commission's role end with its helping to dispose of state-owned land of the Forestry Commission or SOAFD variety. The Commission ought also to facilitate the expansion of community and other forms of ownership at the expense of private landlords. This will involve the payment of compensation to the individual and institutional owners of a number of estates. It will amount, in fact, to state-financed land purchase.

Contents

5 LAND REFORM PRECEDENTS

This is not quite as novel a proposal as you might, on first encountering it, imagine. The Conservative Party, for example, has employed state-financed purchase on a rather wider front than I am here suggesting. It was by just such means that Conservative governments, some 90 or more years ago, initiated processes which culminated in the extinction of Irish landlordism and in the consequent transfer of the bulk of Ireland's farmland to Ireland's former tenant farmers. It was by similar means, a little nearer home, that the same Conservative governments acquired the Glendale and Kilmuir Estates in Skye, along with the Syre Estate in Sutherland, in order to place these properties in the ownership of crofters.

What happened in such cases was approximately as follows. A government agency - originally, in the Highlands, the Congested Districts Board and afterwards the Board of Agriculture - was equipped with purchase powers. Landlords, on being bought out, were entitled to receive, from the purchasing agency, a capital sum by way of compensation. The purchasing agency then supervised the gradual transfer of each purchased property to that property's occupiers - each tenant of an agricultural holding becoming the holding's owner in return for 50 annual payments which were intended cumulatively to amount to the total sum paid to the original landlord by the state. The final cost of such reform to the public purse was thus, in theory, zero.

The fact that modern Ireland is a land of owner-occupying farmers; the fact that Ireland is no longer, as it was a century ago, a country dominated by estates belonging, very often, to absentee proprietors: these facts are due in large part, I repeat, to policies devised by Tory governments.

The fact that Skye's Glendale Estate is owned today by its several hundred occupants, rather than by a single landlord, is a further consequence of Tory policy. And there would be many more Glendales had the early-twentieth-century Conservative Party had its way. The problem for the party's land reformers was that, outside Glendale, Scotland's crofters, unlike their Irish counterparts, preferred tenancy to ownership. That is why the state-financed land purchase programmes which were such a major feature of the Highland scene in the opening decades of this century were mostly to result in crofters opting to become the tenants of the Congested Districts Board and its successor bodies - successor bodies, incidentally, of which SOAFD is the latest.

State-financed purchase was, of course, the means by which the Highland Clearances were, in part at least, reversed - such purchase resulting in the widespread appearance of new crofts in places which had been earlier depopulated. This process was known as land settlement. And it gives rise to an interesting reflection: that Conservative and Conservative-dominated governments, if one adopts a hundred-year perspective, have been responsible for the creation, here in the Highlands and Islands, of several thousand crofts which were brought into existence on land bought from private landlords by the state; that Labour, on the other hand, by means of the Crofting Act of 1976, has made it virtually impossible to create any more new crofts.

There is, I ought to mention, a much wider - and, to some of us perhaps, a rather sobering - lesson to be learned from the past. It is that land reform, though canvassed still quite commonly by socialists, is seldom very helpful to the left.

France makes the point exactly. Some two centuries ago, the French solved their tenurial problems very simply. They took their landlords, lined them up and, with some help from Madame Guillotine, chopped off each landlord's head. Now this, I readily concede, was a most revolutionary reform. But Madame Guillotine's inheritors, by which I mean French peasant-farmers, are, and have been for a long time, as conservative a set of folk as can be found, with maybe one exception, anywhere in Europe.

And the possible exception? It consists of all those owner-occupying Irish farmers who, as previously mentioned, owe their farms to our land-reforming Tory Party. The fact that Fianna Fail has been the principal electoral beneficiary of rural Ireland's huge conservatism is, of course, a complicating factor in my story - and a complicating factor best put firmly to one side. But the general point remains: that land reform, though often advocated in advance of its occurrence by the left, almost always ends, when it is actually put into practice, by greatly strengthening the right.

This could well be the case in the Highlands. Just as Scottish independence (by enabling Scotland's Tories once more to connect with the patriotism which ought to be any right-wing party's stock-in-trade) could eventually boost the electoral prospects of the very Conservatives who are presently so diehard in their unionism, so Highland land reform (if radical enough to get rid of the absentee and speculative landlordism which so many modern Conservatives so unthinkingly defend) could help make the Tory Party a good deal more appealing to an awful lot of Highlanders.

Contents

6 NO MORE CROFTING LANDLORDS

Making this point, among others, I have had the temerity recently to suggest to Mr Michael Forsyth that the Conservative Party should again take up the cause of land reform. (11) This may not happen. But the fact that land reform was once a Tory project is one that never should be overlooked. A Highland Land Reform Committee of the kind this lecture advocates might find it useful, for example, to cite Conservative involvement in the land reform issue if such a committee's existence should be queried by Scottish Office ministers. And there is a further land reform precedent of which a Highland Land Reform Committee would do well to be aware. It dates from 1968 and takes the shape of a proposal for the compulsory acquisition of privately-owned landholdings extending, in all, to well above a million acres.

This proposal was the work of the Crofters Commission. What the Commission envisaged was an action-replay in the Highlands and Islands of the Irish land reforms I have already mentioned. Crofters, the Commission argued, would greatly benefit if - following their Irish counterparts - they were to give up tenancy and opt for owner-occupancy instead.

On an "appointed day", the Crofters Commission accordingly suggested, all land in crofting tenure should be compulsorily acquired by the Scottish Secretary who would promptly transfer ownership of such land to its occupiers. (12)

Each crofter was to become the outright possessor of his or her croft. Each township's common grazing was to be vested in a local trust. And the purchase price payable by crofters to the Scottish Secretary, who would already have compensated crofting landlords for their loss, was to take the form of annuities which, in accordance with earlier practice, were to be roughly equivalent to previous rents and were to run for as long it took the total purchase price to be attained.

Very little of this, as we all know, has come to pass. The eventual legislative consequence of those 1968 proposals was Labour's hotch-potch Crofting Act of 1976. This Act rejected all idea of compulsion. It left the common grazings with the landlords. And though it gave to crofters the right to purchase inbye land, it made the exercise of purchase rights entirely voluntary. The result is that we have been left, or crofters have been left, with the most dreadful shambles - a muddled mix of tenancy and ownership which, in my experience, is a very real impediment to all sorts of crofting progress.

But for all that I have little time for what was done to crofting by the Act of 1976, and for all that I prefer community ownership of the Assynt sort to ownership of crofts by individuals, I remain greatly taken with the mechanism which the Crofters Commission canvassed as the means of putting its own 1968 ideas into practice. My own equivalent of the Commission's "appointed day" on which all land in crofting tenure was to be taken over by the state would be, as I have already indicated, 1 January 2000. At that point, I suggest, there could take effect the Land Reform Act which I should like a Scots parliament to pass. It would be one of this Act's consequences, or so I suggest also, that the crofting landlord would, on 1 January 2000, pass finally into history.

Contents

7 THE COST OF REFORM

Given the extent to which debate about a Scots parliament tends to focus on its public spending implications, it might be appropriate to consider, at this stage, the cost to Scotland's taxpayers of the reforms I have so far proposed. This cost, it is worth stressing, should not be very great.

The abolition of feudalism, though it might cause a loss of revenue to feudalism's residual beneficiaries, would be free of charge to the Exchequer - if, as should be axiomatic, no compensation is payable in respect of the ending of practices which, in a better-ordered society, would have been ended long ago.

To transfer management of the seabed and some foreshores to coastal communities would involve the Treasury surrendering revenues which currently accrue to the Crown Estate Commissioners as a result of fish-farming and other developments. But these revenues, though not insubstantial, are by no means enormous.

To transfer SOAFD's crofting estates to their occupiers would actually be to make an ongoing public expenditure saving - in that SOAFD would be freed of a considerable administrative cost.

Slightly more complex issues are raised by the changes I have advocated in respect of Forestry Commission land. And on these I shall have something more to say. But first I want to turn back to crofting - specifically to the likely cost of buying out crofting landlords.

The Crofting Act of 1976 laid down the principle that crofters are entitled to purchase their inbye land from their landlord at prices which are roughly equal to 15 times their annual rents. These rents - long subject to adjudication by the Scottish Land Court - are invariably low. This is because the Land Court recognises that virtually the entire value of a croft - as represented by its home, buildings, fences, ditches and other "permanent improvements" of that kind - is the creation of the crofter and his or her predecessors in the holding. The landlord, having provided nothing but bare land, is entitled only to a bare land rental - which frequently amounts to no more than £10, £20 or £30 a year.

While it may appear surprising that crofters should be able to buy their crofts for as little as £200 or £300 a time, this arrangement, it should be emphasised, imposes no financial penalty on landlords. When a croft rented at £30 a year is bought by its occupier, the landlord receives £450. Bearing in mind that the landlord no longer has any managerial overheads in respect of the croft in question, this sum, when invested, should produce a larger net annual return to the croft's former landlord than the landlord would have obtained by retaining the croft in his possession.

It seems reasonable, therefore, that my projected Land Commission should apply the 1976 purchase formula to the totality of tenanted croft land - including common grazings. If this were to happen the aggregate cost of buying out Scotland's crofting landlords would be below £10 million - equivalent, in other words, to a National Lottery jackpot in a fairly average week.

Croft land would immediately be transferred by the Land Commission to as many locally-constituted crofting trusts as seemed appropriate. And since it would be sensible to avoid still more tenurial complexity of the kind caused by the 1976 reform, I should be inclined to insist both on compulsory purchase and on compulsory transfer. This would be legislatively to force community ownership on crofters. And for all that individual crofters could subsequently remove their inbye land from community ownership by exercising their existing rights (assuming such rights were continued) to individual purchase, it would be unreasonable to insist on crofters paying for a reform that would thus be imposed on them.

The £10 million cost of buying-out crofting landlords, then, would need to be borne by the public purse. But this ought not to cause great difficulty for Scotland's parliament - the more so since the £10 million at issue could quickly be recouped from administrative savings.

Remember, in this context, that crofting legislation, as administered by the Crofters Commission and the Land Court, exists primarily to protect crofters from their landlords - by guaranteeing security of tenure and judicially-determined croft rents, for example. There are, of course, good grounds historically for such protection. But unless you take the view that crofters also need protection from themselves, the achievement of wholesale community ownership will provide an opportunity to transfer much of the responsibility for crofting administration from public bodies of the present type to crofting communities themselves. Crofting, in other words, should be required to become much more self-regulating - with the current functions of the Crofters Commission and the Land Court being fairly drastically curtailed as a result.

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8 FARMING AND FORESTRY

Land reform will not be easy. As the crofting case shows clearly, it will have all sorts of legislative and administrative repercussions. Institutions which were put in place to deal with current circumstances will require either to be abolished or to have their duties redefined. There will be complications in regard to agricultural support and other forms of public spending in the countryside. Not least in the crofting context, mineral rights and sporting rights will raise their own particular difficulties. These, and many other, matters merit close consideration by the various committees and commissions which, or so my lecture urges, should begin to be established with a view to making land reform happen.

But my key message to you is that land reform can come about; that it is neither so impracticable nor so prohibitively expensive as is often assumed or alleged.

By way of underlining that contention, I shall briefly mention several further measures which -though far-reaching in their impact - would, particularly if costed over a period of years, have no net effect on government expenditure.

The first of these concerns the many tenant farmers who would like to own their land. This could be accomplished quite simply if the purchase rights already available to crofters were to be extended - in hill areas or more widely - to persons occupying land protected by the Agricultural Holdings Acts. The purchase price payable to a landlord by such a farming tenant would - as in the case of crofting - be a multiple of the tenant's annual rent. And that multiple, as in the case of crofting, should be large enough to ensure that the capital sum owing to the landlord, when invested, would leave the landlord no worse off financially.

Since the cost of converting farm tenancy to owner-occupancy would be borne by the affected farmers, such a reform need have no public spending implication. And even if my suggested Land Commission were to be empowered to assist such purchases by way of loan, something that should possibly be thought about, the eventual net charge to the taxpayer could still be close to zero.

I was tempted, I confess, to advocate that similar purchase rights be given also to those working farmers whose land is subject to partnership agreements of the type devised in recent years in order to enable landlords to get round the security of tenure clauses in the holdings legislation. But such a move, I think, would not be helpful to those many individuals in search of an affordable route into farming. Limited and fixed-term tenancies have an obvious role in this connection. And for all that partnership agreements are not the best way to provide them, the most fruitful way forward in this area might be to consider how such agreements could be legislatively transformed into short-term tenancies of a sort that would ideally enable a young farmer, over a period of ten years or so, to accumulate the capital which such a farmer will always require if he is to purchase his own place.

There might be a role here, incidentally, for Land Commission loan finance of the type referred to previously.

Mention of such loan finance returns me to forestry. If state-owned plantations are to be acquired both by communities and by locally-resident individuals in the way I have suggested, substantial sums would clearly have to be available by way of advances from the Land Commission to those communities and individuals who could not readily raise the substantial capital cost of woodland acquisition.

These sums, of course, would be repayable - perhaps by way of the Commission taking some stake in the eventual timber crop.

We might also do well to think about applying to the forestry sector a version of the arrangement canvassed earlier in connection with the coastal seabed. This would involve the state, in the shape of the Forestry Commission, retaining the ownership of forested land while transferring the management of such land to crofting townships, farmers and the like.

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9 LAND SETTLEMENT

I indicated earlier that my principal aim this morning is to outline how we might ensure, here in the Highlands and Islands, that lots more people have an interest in the ownership and management both of land and of associated assets. So far, and now I summarise, I have suggested:

I have one additional suggestion of this type. It draws on early-twentieth-century legislation of the sort already mentioned - specifically the Land Settlement (Scotland) Act of 1919. This legislation stated that if numbers of people in any locality could show, first, that there was a demand for new holdings in that locality and, second, that suitable land could be found in the locality where the new holdings were wanted, then a government agency, originally the Board of Agriculture for Scotland, was under obligation to assist with the creation of the holdings for which need had been demonstrated.

I should want my projected Land Commission to have similar obligations, similar powers. The result would be to diversify ownership still further by making it possible for crofting - or something very like it - to expand beyond the area which is now in crofting tenure.

Future settlements of the sort I am suggesting would not necessarily be agriculturally-dependent. They would primarily be a response to the fact that in many parts of the Highlands and Islands - not least in rural areas like Mull, Skye and much of the west coast mainland - population is now rising very fast. While some proportion of the families living in new settlements ought certainly to have a foothold on the land, these families might look more to woodland than to farming for an income. And both they and their neighbours might equally be involved in a whole range of non-land-based activities of the kind made possible - even in comparatively remote locations - by developments in information and communication technologies.

I envisage such new settlement being tenurially diverse - with each settlement involving community ownership, owner-occupancy and various half-way staging posts between the two.

Although my projected Land Commission would be required to assist with the land purchase costs associated with ventures of this type, such assistance, I imagine, would be more by way of loan than grant. And although local housing associations might well be involved in the provision of the new homes which land settlement would necessitate, this would not be to add to total public spending if, as seems a reasonable assumption, the families thus accommodated would, in the absence of land settlement initiatives, require to be housed elsewhere.

10 A LAND USE CODE

The private landlord, as the private landlord is now known, would not vanish from the Highlands and Islands as a consequence of my proposed reforms. Were such reforms to take effect, however, all owners of land - both longstanding owners and the various new owners to be brought into existence in the course of the reform process - would find their ownership conditional on their observation of what I called, much earlier in this lecture, a legally-enforcible land use code.

The general notion of such a code, I believe, ought to be made explicit in the new bargain that will be struck, so to speak, when our land law is shorn of its current feudal complexities and when all proprietors of land - whether the Duke of Buccleuch at one extreme or the suburban householder at the other - are, in ways I touched on at the outset, placed in a direct legal relationship with the Crown or Scotland's sovereign people. While neither the Crown nor the people, following such a reform, would retain any of the restrictive and oppressive rights which feudal superiors currently exercise over their subordinate landholders, the Crown or the sovereign people could and, in my opinion, should make landownership conditional on owners conducting themselves in accordance with such socially and environmentally desirable standards as may, from time to time, be incorporated into a Scottish land use code by Scotland's parliament.

The detailed content of such a code I leave for further consideration - save to say, by way of indicating its likely shape, that it would probably deal in matters as varied as controls on red deer numbers, access to our mountains, public consultation in advance of land-use change and the various means by which, drawing on the experience of other European countries, a Scots parliament might attempt to regulate the sale of landholdings above a certain size.

The introduction of a land use code, of course, could readily depreciate land values. This would have the wholly beneficial effect of making it easier to establish new settlements of the sort already mentioned - by making it more likely that existing owners would sell land to the organisers of such settlements.

There should be no question, however, of compensation being due in respect of any land price fall resulting from the operation of my envisaged land use code. In an article reflecting on, among other things, the occasionally enormous sums accruing to landlords as a result of the compensatory provisions of the Wildlife and Countryside Act of 1981, two of Bryan MacGregor's academic colleagues comment: "We suggest Britain adopts a general rule that no compensation is due for regulation." (13) That is my own position. I trust it will be the position of a Scots parliament also - landowners being no more entitled to compensation in respect of such socially-desirable controls as might be imposed upon them than industrialists are entitled to compensation in respect of laws controlling operating practices in factories.

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11 SUMMARY AND CONCLUSION

I have suggested very many reforms to you this morning. By way of moving towards this lecture's overdue conclusion, and in the hope of stimulating some discussion, I now list the more important:

All of this, I have argued, can be accomplished at no very great expense. All of this, I have equally argued, can be accomplished very swiftly - certainly within four years.

Land reform, I have put it to you, ought to be a priority for Scotland's recreated parliament. And the job of working up the necessary legislation, I have suggested, could very fittingly be tackled, in the first instance anyway, by the new Highland Council.

There remains just one - more cautionary - note to strike. Land reform, have no doubt, will be resisted. Aspiring land reformers, therefore, need to be sure that they know just what they are about. Prior to embarking on a land reform programme, a Scots parliament will certainly require to have regard, for instance, to the relevant clauses in the European Convention on Human Rights. The Convention states:

Every individual or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to conditions provided for by law and by the general principles of international law. (14)

From the land-reforming point of view, that sounds a little ominous. However, the Human Rights Convention continues:

The preceding provision shall not ... in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest.

I believe that the reforms I have advocated can be shown to be compatible with that injunction. Remember that I envisage the particular reforms on which I have concentrated latterly being bound up with a more general reform which will have the effect of strengthening individual rights of ownership by finally removing feudal relics from our laws. Remember that here in the Highlands and Islands, as a result of my proposed reforms, there will be many more landowners - both individual owners and collective owners - than there are landowners now. Remember, lastly, that the state, in consequence of my reform programme, will occupy a lot less land than it has done for very many years.

Reform can be justified - legally, morally, socially, economically - if it is forward-looking; if it is meant to empower and liberate; if it is intended to promote new forms of development; if it is not undertaken merely in some spirit of revenge for crimes committed long ago.

In the course of a career which has taken me to practically every corner of the Highlands and Islands, I have met a lot of people who care a great deal for our area; people who have invested time, effort and hard cash in its betterment; people committed to living and working in localities which, if these people were to heed the dictates of self-interest, they would immediately abandon. These people include crofters. They include landlords also.

Such landlords will, I trust, be beneficiaries of reform. If the issue of our land, its use, its ownership, can finally be settled in the way I have tried today to indicate, then many of our resident landowners, having thus been freed from the burdens which the past imposes on them, will be encouraged, I hope, to contribute still more energetically to northern Scotland's overall advancement.

The Highlands and Islands, in the last two or three decades, have turned a most important corner. This is no longer the declining and depopulating region that it was for far too long. In all the European Union ours is the rural area with the fastest population growth rate. We have an expanding economy. We have, for all the damage that has been done to it, one of the world's more attractive natural environments. We are beginning to take a proper pride in a cultural heritage which we were previously encouraged to disparage or ignore. We are, as a result of all of this, a good deal more self-confident than once we were. We can handle land reform.

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REFERENCES

[To return to the text from a footnote to which you have jumped - use the back button of your browser]

0 MacGregor, B., The John McEwen Memorial Lecture, 1993:Land Tenure in Scotland, Rural Forum, Perth, 1993, 16.

1 MacGregor, McEwen Memorial Lecture, 16-17.

2 Law Society of Scotland, The Laws of Scotland: Stair Memorial Encyclopaedia, Edinburgh, 25 volumes, 1987-93, XVIII, 165.

3 Nicoll, R., "Villains in an Arcane Game", Scotland on Sunday, 9 July 1995.

4 Scottish Law Commission, Discussion Paper 93: Property Law: Abolition of the Feudal System, Edinburgh, 1991.

5 Law Society of Scotland, Laws of Scotland, XVIII, 54.

6 Scottish Constitutional Convention, Towards Scotland's Parliament, Edinburgh, 1990, 1.

7 Scottish Law Commission, Abolition of the Feudal System, 2.

8 Hansard, House of Commons, 16 March 1965.

9 Hansard, House of Commons, 16 March 1965.

10 McEwen, J., Who Owns Scotland?, Edinburgh, 1977, 118.

11 Hunter, J., "The Highland Challenge", The Herald, 15 July 1995.

12 Crofters Commission, Annual Report for 1968, 27-38.

13 Rowan-Robinson, J. and Ross, A., "Compensation for Environmental Protection in Britain: A Legislative Lottery", Journal of Environmental Law, Vol 5, No 2, 1993, 256.

14 Article 1 of the First Protocol (1952) to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

FURTHER READING

Arkleton Trust, Report on the Future of the DAFS Estates in Skye and Raasay, Scottish Crofters Union, Isle of Skye, 1990.

Callander, R. F., A Pattern of Landownership in Scotland, Finzean, 1987.

Davitt, M., The Fall of Feudalism in Ireland, London, 1904.

Forgarty, L. (ed), James Fintan Lalor: Collected Writings, Dublin, 1947.

Gordon, W. M., Scottish Land Law, Edinburgh, 1989.

Hulbert, J. (ed), Land: Ownership and Use, Andrew Fletcher Society, Dundee, 1986.

Hunter, J., The Making of the Crofting Community, Edinburgh, 1976.

Hunter, J., For the People's Cause: Selections from the Writings of John Murdoch, Edinburgh, 1986.

Hunter, J., The Claim of Crofting: The Scottish Highlands, 1930-1990, Edinburgh, 1991.

Hunter, J., On the Other Side of Sorrow: Nature and People in the Scottish Highlands, Edinburgh, 1995.

Leneman, L., Fit for Heroes: Land Settlement in Scotland after World War I, Aberdeen, 1989.

Moody, T. W., Davitt and Irish Revolution, Oxford, 1981.

Warren, L. M., Marine Fish Farming and the Crown Estate, World Wide Fund for Nature, Godalming, 1992.

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