Andrew Arbuckle: When unknowns outweigh knowns

Long after everyone has forgotten who said it and in what context, former US defence secretary Donald Rumsfeld’s comment on there being “known knowns, known unknowns and worst of all unknown unknowns” is still applicable in some modern day situations.

Donald Rumsfeld's comments could apply to new bill. Picture: AP Photo/Ed Wray
Donald Rumsfeld's comments could apply to new bill. Picture: AP Photo/Ed Wray

His complex strangulation of the English language could easily be applied to the land reform legislation currently going through the Scottish Parliament.

Just before they departed on their Christmas holidays, MSPs held a debate on this extremely complex and multi-faceted bill which covers everything from creating a register of who owns land to far-reaching changes in agricultural holdings.

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Listening to the debate, it was easy to concur with the view of NFU Scotland and Scottish Land & Estates that it would have been better to split the proposed bill into two, with agricultural tenancy matters being dealt with separately.

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As it is, the whole clamajamphrie will be pushed through in the first 12 weeks of 2016 as this is also the last twelve weeks of a Parliament which closes down at the end of March with MSPs up for election in May.

As some of the grey beard politicians who had dealt with the 2003 agricultural tenancy legislation warned, rushing through changes in complex laws needs time and consideration. Some of the errors in that earlier legislation are still bedevilling tenants, landlords and the government more than a decade later.

Starting with the known knowns, there will be a Tenant Farming Commissioner to help resolve disputes between landlords and tenants. There is cross party support for establishing this post.

There are other known knowns that do not have support across the political divide but which will be enacted courtesy of the government’s majority. Included in this category is the proposal to tax shooting estates.

Now to the knowns but which contain unknown elements. Landlords listening to the pre-Christmas debate might have been chilled by the broadsword (sabre?) rattling by some MSPs calling for farm tenants to have an absolute right-to-buy their leased properties.

The unknown element here is just how broad-based is the absolute right-to-buy call.

Another piece of the legislation to come under the positive/negative category is the right of a tenant to assign his lease to someone outwith the family or to sell the lease back to the landlord at a premium.

These unheralded concepts shocked landowners who may have believed the cabinet secretary’s agricultural holdings review report would form the basis of the government’s position on farm tenancies. The consequences of both are in the unknown category as landlords are already referring to them as breaching their human rights.

Then we come to the unknown unknowns. Some of those might emerge when the Scottish Government gets round to publishing its comprehensive response to the proposals in the legislation.

Not only had it not managed to publish its views but the minister leading the debate confirmed some hefty pieces of law would be sneaked through as secondary legislation.

OK, she did not use the word sneaked, but opposition MSPs took that interpretation. For clarity, the use of secondary legislation allows ministers to push through sections of law without bothering too much about debate.

Thus parts of the most radical changes to land holding in 100 years or more may come into being either through piecemeal additions such as the proposal to allow tenants to assign their tenancies, or it may pass undebated through the use of the legalistic device of secondary legislation.

One of the fundamental reasons for establishing the Scottish Parliament was that it would allow time to debate purely Scottish matters. The land reform legislation is an ideal subject for thorough dissection and yet much of it will be decided either outwith the chamber or with limited time within it.

Rumsfeld’s comments were uttered in 2002 during the Iraq war. More than a decade later, there are still many unknowns hidden in that warmongering expedition. Will Scotland still be unearthing unintended consequences from a not properly scrutinised Land Reform Bill many years down the line?