Norse landing

This month, as rival properties groups gather round Highland estates and lawyers prepare to do battle, Orcadians look on in bemusement. The end of centuries of Scottish feudalism is not their problem really.

"It’s fine to see the rest of Scotland conforming to Orkney standards - even though it’s taken them 900 years to catch up with us," says local farmer Eoin Scott.

Ancient Norse Udal land rights are still valid in the islands - very much so. In the 19th century the Chancellor of the Exchequer came up against Udal law and lost. In the 20th century oil giants Occidental came up against Udal law and lost. This month local authority plans to build a marina are coming up against Udal law and council officials are circling respectfully. When ministers were drawing up the Land Reform Bill they would also have come up against Udal law had Justice Minister Jim Wallace - Orkney’s MSP - not done his homework and recommended not touching it with the proverbial bargepole.

Sign up to our daily newsletter

The i newsletter cut through the noise

"Orkney land rights still run on the old Norse democratic principles that go back to when we belonged to Norway," says Scott. "Peasants were given the right not only to own their land but also the foreshore that went with it. It’s all included on the title deeds of properties and is legally binding."

A separate part of the current Land Reform Bill relates to "the foreshore and seabed", which in Scotland is part of the Crown Estate and government controlled. Not in Orkney, where the official letter threatening the Scottish Law Commission with the European Court of Human Rights is sitting ready prepared in case ministers decide to try pulling rank.

"The foreshore is part of my land," says Jim Sinclair, vice convener of Orkney Islands Council. "Everything is right here in my title deeds and hundreds of farmers and smallholders in Orkney are the same. I have two farms with the rights handed down through the generations and I own the foreshore to the low water mark on both of them. It means I can pull up a boat and berth it without paying duty and I can use sand and gravel for agricultural purposes free of charge. I’m damned if I’m paying the government for it. To do that is an infringement of my property and that is a human rights issue."

Udallers and title deeds are not to be messed about with, as the multinational oil company Occidental learned during the construction of the Flotta oil terminal. When their North Sea pipeline was being laid, they had to pay the owners of the foreshores it crossed.

"On more than one occasion the Crown took the money because the owner didn’t know his rights," says Sandy Firth from the Orkney Heritage Society. "But they didn’t get off with it. Eventually Occidental had to reclaim the money from the Crown Estates and repay it to the rightful owners of the foreshore."

A Udal title is quite democratic and simple. It states that the udaller’s ownership is absolute from the highest point of land to the lowest point on the ebb on the property’s foreshore.

It all goes back to the early 12th century, when Orkney’s Norse Earl Rognvald was building a cathedral in memory of his late uncle, the martyred Earl Magnus. Such edifices were expensive and when Rognvald ran short of cash he announced that he would issue Udal rights of ownership in exchange for free labour, ready cash or payment in goods of various sorts - anything, really, that would get the job done. The unwritten rights to land tenure were secure enough under Norse rule but all that changed in the 15th century when Norway and Denmark had joint rule over Orkney and Shetland, and the daughter of King Christian of Denmark married James III of Scotland.

Christian was short of the 60,000 florins for her dowry. Well short - he only had 2,000, so the shortfall was made up by pawning Orkney for 50,000 and Shetland for 8,000. It’s still not been redeemed.

"At the time of the referendum on the Scottish parliament, I was representing Orkney at a North Sea Conference and I asked the Danish chairman if he would have us back," grins Sinclair. "But he said they were having enough trouble with the Faroes."

People were less inclined to take it as a joke when Orkney bucked the Scottish trend and voted "No" to the Scottish parliament having tax-raising powers.

"It was very nearly ‘No’ to the Scottish parliament itself," says Sinclair. "Orkney was promised special status of a semiautonomous nature through the Scottish Constitutional Convention, but in the lead up to the referendum it was obvious this wasn’t going to happen and we nearly voted against devolution."

"The Scottish Office has always wanted us to fit in nicely and tidily with the rest of Scotland and we never will. We are different and proud of it," says fellow councillor John Brown.

In his youth, he and fellow protesters were placed under house arrest for flinging bangers at Willie Ross, the then Secretary of State for Scotland, who was in the process of centralising police and fire services. "It happened anyway, of course," says Brown. "But they’ll never make anything stick in applying their Land Reform bill to our Udal law. Title deeds will have to be changed and, as Jim Sinclair says, that’s a human rights violation and we’ve got Europe on our side."

Udallers in Orkney weren’t shy in sticking up for themselves with their new Scottish - and eventually British - rulers. "I’ve seen one local title deed that was secured in writing with the words, ‘By the Grace of God and Prince George II, this is a Udal property’," says Scott.

No outcry in Orkney from fishermen and sporting estates about new rights of access and parcelling off of estate land. Because of Udal law, trout fishing on the lochs has always been free. The unspoken right to walk across land has also never been an issue so long as countryside codes are respected - which they usually were. Any problems have been recent ones, usually brought about by people unfamiliar with the old Udal traditions and too keen to shout, "I, me, mine". Such people are usually brought down to size.

No law involving people and property is ever completely fair and the Udal division of land between brothers and sisters has frequently caused problems. But for nearly nine centuries the Udal legacy in Orkney has acted as a buffer when it came to the division between landowner and crofter that was such a burning issue in the rest of Scotland.

"Orkney was far from a classless peasant society," says local historian Willie Thomson. "But it is true to say that there was no obvious social distinction between those who owned land and those who rented it."

"We have a real sense of who we are," says Brown. "We never doffed caps to anybody and we never will."