Land reform in Scotland

Land ownership in Scotland

Scotland's land issues are rooted in two processes that happened in the 18th and 19th centuries, especially in the Scottish Highlands:

The Crofters' Holdings (Scotland) Act 1886 intended to protect the farmers' rights, but it was too weak to have any effect.

The Scotland land reform aims to balance the land-ownership situation by:

Preparations

During the Scottish devolution (1997-1998), a Land Reform Policy Group (LRPG) was established under the chairmanship of Lord Sewel. After extensive public consultation, the LRPG published a set of proposals for land reform (1999).

In 2000, the Scottish Feudal Law from the 11th century, which protected the sanctity of large holdings, was officially cancelled.

In the same year, the Scottish Land Fund was established, in order to help communities buy their land from their landlords.

In 2001, a Draft Land Reform Bill was published. It was accepted as an Act two years later.

Abolition of Feudal Tenure

The first piece of land reform legislation in the 21st century, the Abolition of Feudal Tenure etc. (Scotland) Act 2000 was passed by the Scottish Parliament on 3 May 2000 and received royal assent on 9 June the same year. The act formed the core of a three part reform of Scottish property law, alongside the Title Conditions (Scotland) Act 2003 and Tenements (Scotland) Act 2004. The main provisions of the act included the abolition of feudal superiorities and tenure, to be replaced by a system of outright ownership in which those who had been vassals became outright owners. This necessitated the extinction of superiors’ rights to collect feu duties, for which they were entitled to compensation in the form of a single payment of a size that, when invested at an annual rate of 2.5%, would yield interest equal to the former feu duty. However, as Scotand's remaining feu duties had been fixed many years previously, inflation meant that by the time of the act’s passing their value was, in most cases, effectively nominal. The act also extinguished superiors’ rights to enforce real burdens, conditions on the holding of land, retaining only those conditions enforceable by neighbouring land owners or by certain legal bodies on public policy grounds. The legal basis of real burdens and title conditions was then reformulated in the Title Conditions (Scotland) Act 2003. The end of feudal tenure simplified titles to land, while the subsequent Title Conditions (Scotland) Act 2003 modernised the types of interests and conditions that can be attached to those titles. Finally, common law surrounding tenements was then reformed in light of these changes under the Tenements (Scotland) Act 2004, completing the abolition of Scotland's feudal property system.

The 2003 Acts

The Land Reform (Scotland) Act has three parts, with provisions regarding three areas of land rights in Scotland; the creation of a legal framework for land access, the community right to buy and crofting community right to buy. The first part formalises the tradition in Scotland of unhindered access to open countryside. It creates a framework for responsible access to land and inland water, formalizing the tradition in Scotland of unhindered access to open countryside, provided that care was taken not to cause damage or interfere with activities including farming and game stalking. Access rights apply to any non-motorised activities, including walking, cycling, horse-riding and wild camping. They also allow access on inland water for canoeing, rowing, sailing and swimming. This aspect of the Act follows the distinctive approach set out in the Outdoor Access Code, specifying the rights and responsibilities of land managers, countryside users and recreational managers. Similar legislation was passed for England and Wales with the Countryside and Rights of Way Act 2000.

The second part of the act establishes the community right to buy, allowing communities with populations of up to 10,000 to register an interest in land, entitling them to first right of refusal should the owner put the land up for sale or intend to transfer ownership, provided a representative community body can be formed to carry out the purchase.

Finally, the third part establishes the crofting community right to buy which allows crofting communities to purchase crofts and associated land from existing landowners. It differs from the community right to buy in that it can be exercised at any time, regardless of whether the land has been put on the market, allowing crofting communities to purchase land even in the absence of a willing seller.

The Agricultural Holdings (Scotland) Act 2003 amends the law relating to agricultural holdings under the Agricultural Holdings (Scotland) Act 1991. It provides for new forms of agricultural tenancies and makes provision in relation to these tenancies, the right of certain agricultural tenants to buy land and the use of certain agricultural land for non-agricultural purposes. It makes special provision for certain agricultural tenancies where the tenant is a partnership and for the resolution of disputes between landlords and tenants arising under agricultural tenancies.

The Salvesen v Riddell case, 2012-2013

A section of the Agricultural Holdings Act has been challenged and cancelled by the Supreme Court of the UK.

The trigger to this ruling was an appeal by Salvensen, the owner of Peaston Farm near Ormiston. The Riddells were tenants in this farm. Section 72, 2003 Act greatly restricted the ability of landowners to terminate the tenancies of their tenants. Initially, the start date of this restriction was set to 4 February 2003. This led many landlords, including Salvensen, to terminate the tenancies of their tenants the day before - 3 February 2003. A later amendment to section 72 retroactively set the start date of the restrictions to 16 September 2002, which made Salvensen's termination notice ineffective.

Salvensen applied to the Land Court, which repealed his application. He then appealed to the Court of Session and obtained permission to apply to the UK Supreme Court. His main claim was that Section 72 is incompatible with his property rights - the rights guaranteed to him by Article 1 of the European Convention on Human Rights.

The Supreme Court unanimously allowed the appeal. It found that Mr. Salvesen’s A1P1 rights were violated by section 72(10) of the 2003 Act and that this provision is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998. Therefore, the suspended the effect of this finding effectively until the defect is corrected.

This case is considered significant from a public law perspective.

The 2016 Act

During 2014-2015, the Scottish government conducted a public consultation about the future of land reform in Scotland. Based on this consultation, the Land Reform Act 2016 was legislated. This act added the following.

New protections for tenant farmers against eviction. There is a new form of limited duration lease: tenants will be able to assign or bequeath their leases to a wider range of people, a change that supporters say will encourage transfers to a new generation of farmers but which landowners say will discourage them from making farms available for rent.

An end to a two-decade-old exemption from business tax rates enjoyed by shooting and deerstalking estates.

Increasing transparency of land ownership and control through a public register.

Criticism by landlords

Naturally, many landlords oppose the reform. Some of their arguments are:

Criticism by reform activists

Several parts of the Bill have been criticized as follows:

Land-reform activists claim that the current reform is insufficient as several important amendments were voted down by SNP and Conservative backbenchers, including:

Criticism by law experts

In a 2016 article in the Journal of the Law Society of Scotland, Douglas Maxwell claims the Land Reform (Scotland) Bill contains poorly-defined terms such as "sustainable development" and "communities" which may place the bill in conflict with international human rights laws, particularly the ECHR Protocol 1, article 1.

Community focus

Land reform in Scotland is unusual in its emphasis on community land ownership, with the Scottish government adopting the target of seeing 1 million acres of land under community ownership by 2020. Most other land reforms have focused on giving land ownership rights to individual farmers. In contrast, the Land Reform (Scotland) Acts of 2003 and 2016 grant a collective right-to-buy to entire communities living in a geographical area.