Land law with head in the clouds

Magnus Linklater

Scotland on Sunday
26 January 2003

MID-WAY through last week’s debate on land reform, I got the strange feeling that came over Alice in Wonderland at the Mad Hatter’s tea party. "You should say what you mean," said the March Hare. "I do," Alice hastily replied. " At least I mean what I say - that’s the same thing, you know!" "Not the same thing a bit!" said the Mad Hatter. "Why, you might just as well say that ‘I see what I eat’ is the same thing as ‘I eat what I see!’"

It came over me because the more I listened to the explanation for the wholesale, radical and far-reaching laws enacted on Thursday by the Scottish parliament in order to transfer land from existing owners to local communities, the less I understood it.

At its simplest level, the case advanced by the Scottish Executive’s minister Ross Finnie, seemed relatively straightforward: this was is a "progressive" measure designed to achieve a fairer distribution of land. The Bill was aimed at strengthening and expanding the rural economy. By giving communities rather than landowners control over the land, it would release new resources, energy and commitment.

So far, so good. If rural communities are indeed to do that, it will be good news for Scotland’s most hard-pressed areas, well worth the difficulty of prising rolling acres of hill and moor away from the landowners.

It was, perhaps, a little puzzling that Finnie and his deputy, Allan Wilson, should have spent many man-hours introducing a string of amendments - 92 altogether - whose intention was actually to rein back rather than extend the Bill, curbing proposals which would have made it easier for communities to purchase land, and for ordinary folk to gain access to the land, strenuously resisting Scottish National Party attempts to take them further.

If this was indeed such a positive measure, why hold it back? Because, we began to realise, no one seemed to know quite what the effect would be. The remarkable fact is that, despite this Bill’s three-year gestation period no one seems to have asked the simple question: how will communities do better than existing owners? How do they propose to increase investment, boost employment, and release the potential of the land they are to acquire? No study has been undertaken by the Executive, no figures have been provided to illustrate the financing of a Highland estate or how communities will bear that burden to guarantee jobs.

Yet, putting sentiment aside, land management has to be considered as a hard-nosed business. It makes a major contribution to Scotland’s economy, and in some of its most unproductive country. Very few landowners, for all their reputation as greedy exploiters, make money from the land. I talked to the factor of one 55,000 acre estate in the north of Scotland. There are three farms, some woodland, 15 let houses, and a few unreliable grouse and deer on the hill. Yet it manages to employ 18 people, who are, in a sense, ‘the community’. They make it possible to keep the school open and the local post office in business.The annual investment needed from the owner to pay his employees, to maintain houses, roads and fencing, is between £250,000 and £300,000. This is private funding and it is invested with little hope of a return. It is not untypical.

How that money could be matched by a local community has never been explained. In any other industry, the idea of transferring ownership without bothering to inquire about the financial consequences would be considered pure madness. Yet whenever the issue was raised by the Tories, during the two days set aside to debate the Bill, their proposals were dismissed as "wrecking amendments". Attempts to protect an estate’s commercial activities, to guarantee continuing employment on it, or to ensure that there was proper access to investment in order to sustain it, were routinely voted down. Instead, crofting communities will be able to acquire land and adjacent rivers by compulsory purchase - an extraordinary erosion of landowners’ property rights. The only criteria on which they will be judged is whether they can deliver "sustainable development" and whether it is in "the public interest" - both phrases are open to the widest interpretation.

If this seems illogical, the proposition advanced late in the day by the Scottish National Party, was even more bizarre. It wants to take land reform far further than the Executive. Roseanna Cunningham, its deputy leader, proposed that any community - not just the crofters - should be allowed to acquire land compulsorily if it has registered an interest for more than five years and has held a ballot. It too must raise the money and show that its aims are "consistent with furthering the achievements of sustainable development."

When pressed on how this would be achieved without cutting jobs, Fergus Ewing MSP gave no explanation, but simply asserted: "We will not put any worker under threat." His SNP colleague, Stewart Stevenson, made a different, and very odd point. He argued that crofters would not be interested in taking on profitable rivers, they would buy only derelict or undeveloped ones, in order to build them up. I asked one river-owner how much it might take to restore a salmon river, and he blanched. "How long," he said helpfully, "is a piece of string?"

There is, of course, a fund to help communities with buyouts. But the Land Fund has already been used to help with the purchase of the island of Gigha, and as a result, there is nothing left. Next stop - the National Lottery, and the New Opportunities Fund which might, if the Department of Culture, Media and Sport in London allows, provide some funds for a community buy-out. But even here resources are limited. The National Lottery is on a downturn, and all the "good causes" for which it exists, are being reined back.

When this point is raised, the impatient response is: look at the other community purchases, look at Eigg, Gigha, and Assynt. I have looked, very hard, and I admire what those communities have done. But two things are immediately apparent - finding commercial, that is, non-public, funding, is a real struggle.

Perhaps we have, like Alice, simply been asking the wrong question. Perhaps it really is, as Labour MSPs like Alasdair Morrison and Lib Dems like John Farquhar Munro claim, more about misty romanticism than hard reality. Morrison described the Bill as "the fulfilment of a Keir Hardie manifesto pledge... putting the pattern of 19th century land ownership behind us." Munro said it was revenge for the way landowners had seized their estates "at the point of a sword."

In that case, there is no rationale, no economic reality. We might as well go back to the Mad Hatter’s tea-party: "Have some wine," said the March Hare in an encouraging tone. Alice looked all round the table but there was nothing on it but tea. "I don’t see any wine," she remarked. "There isn’t any," said the March Hare.

KNOW YOUR RIGHTS

ON Thursday the Scottish Parliament passed the Land Reform (Scotland) Bill by a majority of 101 to 19. The legislation, which will go forward for Royal Assent next month, means:

For the first time everyone will have a "right to roam", even on the Queen’s estate at Balmoral. Her Majesty’s privacy will be protected, however, and others can apply to ministers to limit access.

Residents in any community will have the right of first refusal when the land they live on comes up for sale. Up to 30 communities are said to be considering a purchase, following that of Gigha by the island’s residents.

Crofting communities will have rights to force landlords to sell their land and the sporting licences for it. This is expected to become a legal quagmire, with landholders’ interests already warning of test cases over compulsory purchases.

Those seeking to buy land under the scheme can apply for public money through the Scottish Land Fund, which has cash from the National Lottery New Opportunities Fund.

Magnus Linklater

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28 January 2003

Land law with head in the clouds

Magnus Linklater

Scotland on Sunday
26 January 2003

Further Reading Recommended by Land-Care

MENU

28 January 2003

Land law with head in the clouds

Magnus Linklater

Scotland on Sunday 26 January 2003

Further Reading Recommended by Land-Care

Scotland on Sunday
26 January 2003