Still living under Feudalism

Robin Callander

Can the new parliament strike a symbolic blow for the people by resolving one of the most contentious issues in Scotland - land reform?

There have long been calls for land reform in Scotland. Now at last it’s time to start deciding what should happen. The government is working to a tight schedule to have a package of land reform measures ready to be among the earliest legislation of the Scottish parliament. This week marks the end of the first phase of the Scottish Office’s public consultations on what the reforms should be.

While the strength of public support throughout Scotland for the community buy-outs by the Assynt crofters and islanders of Eigg illustrated the continuing potency of the land issue, the focus is no longer on remote Highland communities. The prospect of reform has transformed the land debate. Now, the issue is about the practical benefits land reform can deliver in both urban and rural Scotland and dealing with pragmatic arguments about opportunities to promote economic development, social well-being and environmental stewardship.

Deciding how to change the laws governing the ownership and management of land in Scotland is not without its challenges. Not least among these is bridging the gap between policy makers, who usually have limited knowledge of Scotland’s notoriously archaic and complex system of land laws, and the lawyers who may understand the intricacies of the system, yet tend to have little awareness of wider policy issues. This situation is highlighted by the reform that is most certain to be in the package that goes to the Scottish parliament - the abolition of feudalism.

Nearly all land and buildings in Scotland are still owned under a system of feudal tenure. No other country in the world still has a feudal system - there will be powerful symbolism in the new parliament abolishing it after so many centuries. However, while the need for change is clear, there is an argument about what to put in its place. As a recent Church of Scotland report commented: We are concerned that the impatience with the feudal system of land ownership might result in a system of land ownership that conferred absolute rights and no element of conditionality. This goes to the heart of the land issue: ensuring that reforms safeguard and strengthen the ways in which the ownership of Scotland’s land is conditional on the public interest.

A second issue that stands out as a candidate for land reform in the Scottish parliament is public access. Most Scots believe they already have a traditional right to roam, but the legal position has become confused and does not provide adequate safeguards for either the public or the occupiers of land. There is a pressing requirement to enact a conditional right to roam similar to the successful systems in Norway and Sweden. This would have a symbolism equal to abolishing feudalism and be more real to most people. Both Scotland’s urban population and its rural communities would benefit directly and few other measures offer such a powerful means of promoting the Scottish people’s sense of ownership and responsibility for the Scottish countryside.

A dozen or so other main issues are emerging as front-runners to be among the first reforms. One with a particular historical resonance is improving the rights of crofters and agricultural tenants. Enabling these tenants to carry out a wider range of activities on their holdings than just those related directly to agriculture, would promote integrated land use and economic diversification. Extending rights to buy and the scope to create new crofts would also make important contributions to rural development. Controversies in the Highlands have also highlighted the need for reforms to ensure there is adequate information available on the pattern of ownership and identity of owners.

One prominent land issue that the Scottish parliament will not address, however, is the reform of the Crown Estate Commission (CEC) in Scotland to make it more democratically and locally accountable. The CEC, whose extensive responsibilities include the seabed and foreshore, will be a matter reserved to Westminster, even though the rights it manages derive from the distinct identity of the Crown in Scotland and are defined in Scots law. The reservation of the CEC will leave an anomalous gap in the Scottish parliament’s responsibilities or Scotland’s land, which will be compounded by the loss at devolution of the Secretary of State for Scotland’s existing power of direction over the CEC.

Fiscal policy is also a reserved matter, but the Scottish parliament will be responsible for local taxes and one potential reform is the reintroduction of sporting rates. Estates have been exempt from these since a Tory reform in 1995. Reconstituted sporting rates, which would contribute to local authority income, could be used as a powerful incentive to good land use, including the long-standing problem of excessive deer numbers in the Highlands, and reduce the millions of pounds worth of deer damage each year. The charges associated with a revised system of sporting rates could also reduce the high capital values linked with deer and other game species.

Other ways of influencing the estate market in special circumstances in the public interest are also being proposed. These measures include a public right of pre-emption that would be similar to existing arrangements for works of art, and also regulations equivalent to those operated by the Monopolies and Mergers Commission over the buying and selling of firms. While others are likely to emerge, these issues, from abolishing feudal tenure to regulation of the land market, illustrate the diverse scope of land reform and the way relatively distinct measures could be built up into a package of reforms for the Scottish parliament. One problem, however, for people contributing to the government’s current consultations, is deciding which reforms can realistically be put in position in time for the new parliament.

Land reform in Scotland will not be addressed by the passing of a single act. A distinction is already emerging between issues to be taken forward now and those that need to form part of a wider and on-going land reform debate. It is in that context that Scotland’s extraordinarily concentrated pattern of large-scale private estates should be viewed. Half of Scotland’s land area, for example, is owned by only 600 landowners. Increasing the number of owners and the extent of local control is unlikely to be tackled by one or two radical measures, but through a wide range of different measures as part of a continuing land reform programme through the Scottish parliament. Legislation on land would become an item on the parliament’s agenda from time to time, just as there will be a recurring need for legislation on other major social issues such as health and education.

For a long time, people have been arguing why there should be land reform. Now the challenge is to start deciding what changes are required to ensure a better balance of public and private interests in the ownership and management of Scotland’s land. The outcome of the debate will have a crucial influence. It will determine the nature of the proposals to be put to the new parliament and also shape the nature and extent of land reform for years to come after that.

Source: Scotland on Sunday, 26 April 1998.

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