SCOTLAND’S ongoing land reform process owes its existence to devolution, rather than the referendum on independence, but in many ways its progress has mirrored, in microcosm, the Yes/No debate, with analogous issues at stake and the same heights of passion and, on unfortunate occasions, hostility on either side.
Land reform is difficult to define, as it means different things to either side. It is difficult because we all live on land but land reform does not seem to apply to all land.
The arguments, however, do not relate to the houses and gardens in which ordinary people live, unless they are of such a size as to attract attention or, as opponents would think, envy. The line where respect for private property stops and land reform starts is entirely in the eyes of the beholder.
Therefore, it is not really possible to say that land reform consists of any more than the politicians have done (in the Land Reform (Scotland) Act 2003) or might propose to do (as a result of the reports of the Land Reform Review Group).
The areas defined for the land reform debate, in 2003, were threefold: rights of access to the countryside; an absolute right to buy for crofting communities; and a more general right to buy for non-crofting communities. Of these, it is the last that has proved the most contentious.
Attempts by those with a special interest to force the equally contentious rights of agricultural tenants into the land reform agenda have, for the most part, been resisted.
Passions run high on either side of the debate. Those in favour of land reform do not, generally, see themselves as owners of enviable amounts of land. Their mantra is that Scotland has the most concentrated landownership in Europe, with 432 owners of half the private land, although neither aspect has been properly established as objective fact.
Their common aim seems to be directed at the break-up of the “large estates”, which they perceive as anachronistic, albeit they cannot agree as to whether the beneficiaries are to be communities or individuals.
The opposition, generally consisting of rural landowners, finds it hard to get a sympathetic hearing for their justification of providing public good (rural employment and housing, generally), some of which are only incidental consequences of their personal enjoyment, and their ambition to change (with greater community involvement in management).
As in the referendum, those wishing to retain the status quo realise that some change is inevitable. Their red line, however, is that there should be no sale without a willing seller, otherwise known as an absolute right to buy. Between these apparently polar extremes, there has been, thus far, a largely apathetic mass, mostly because, thus far, the right of communities to buy land has been restricted to rural land.
That, however, is proposed to change as a result of the Community Empowerment (Scotland) Bill, which extends the current right to buy to urban as well as rural communities. That possibility is likely to find allies for the hard-pressed landowners as the real money and power represented by urban commercial property becomes prey to the caprices of communities. Commercial property owners are wakening up to the consequences.
Also, the red line of compulsory sale is coming increasingly close to being breached, with proposals in the bill for forced sales to communities of “wholly or mainly abandoned or neglected” land and the rejection of a human rights defence to the compulsory sale to a crofting community. Those who fear being forced to sell have few friends in parliament.
On top of all this, the recommendations of the Land Reform Review Group, which were relatively innocuous at the interim stage, but, having been criticised by pro reformers, were truly radical at the final stage, remain waiting in the wings for future legislation.
As is frequently the case, however, the underlying imperative is coming to be that of access to public money. In North Uist, for instance, local politicians resolved to force a ballot for community ownership of their island, despite single-digit support from the inhabitants, largely as a result of the perception that, as privately owned, they were missing out on millions in public investment, as compared to their community-owned neighbours.
Such governmental favouritism, whether real or apparent, would not be possible, of course, in a wholly community-owned Scotland.
• Lewis Kermack is a senior associate in Turcan Connell’s land and property team www.turcanconnell.com