Land reform in a Net Zero nation: consultation analysis

3. Strengthening the Land Rights and Responsibilities Statement

The LRRS consists of a vision and seven principles, supported by advisory notes, case study examples, and a series of good practice protocols developed by the SLC. The LRRS, and its associated advisory notes and protocols, is currently voluntary and relies on landowners and land managers engaging with it.

The consultation paper notes that although the Scottish Government recognises that many landowners are abiding by the LRRS, some are not, despite the clear public interest the LRRS provides. It therefore proposes to introduce measures which would place a legal duty on owners of large-scale landholdings to comply with the LRRS and its associated codes/protocols, accompanied by a statutory process to adjudicate on complaints about non-compliance and the response to a breach.

Question 4 – We propose that there should be a duty on large-scale landowners to comply with the Land Rights and Responsibility Statement and its associated protocols. Do you agree or disagree with this proposal?

Responses to Question 4 by respondent type are set out in Table 7 below.

Table 7 Question 4 – We propose that there should be a duty on large-scale landowners to comply with the Land Rights and Responsibility Statement and its associated protocols. Do you agree or disagree with this proposal?

	Agree	Disagree	Don’t know	Total
Organisations:
Academic group or think tank	4	0	0	4
Community or local organisations	21	1	0	22
Government and NDPB	13	0	0	13
Landowner	5	23	6	34
Private sector organisations	7	6	0	13
Representative bodies, associations or unions	16	4	5	25
Third sector or campaign group	28	1	2	31
Total organisations	94	35	13	142
% of organisations	66%	25%	9%
Individuals	266	60	15	341
% of individuals	78%	18%	4%
All respondents	360	95	28	483
% of all respondents	75%	20%	6%

Percentages may not sum to 100% due to rounding

A majority of respondents, 75% of those answering the question, agreed that there should be a duty on large-scale landowners to comply with the LRRS and its associated protocols. Individual respondents were more likely to agree than organisational respondents at 78% and 66% respectively. Of the remaining respondents, 20% disagreed and 6% did not know.

Among organisations most groups showed a clear majority in agreement, with the exception of Landowner respondents where a substantial majority disagreed, and Private sector organisation respondents who were relatively evenly divided.

Please give some reasons for your answer.

Around 340 respondents provided a comment at Question 4.

Creating a legal duty

Reasons there should be a legal duty

Although there was recognition that some large-scale landowners do comply with the LRRS and its protocols on a voluntary basis, it was argued that others do not and that it is right and fair that all should do so. It was also suggested that the majority of landowners would not have a problem as they are already adopting appropriate practices, or that it the duty would not add to the burden of landowners who already do so. Some respondents took the view that the voluntary approach has not been effective or simply expressed an opinion that a compulsory/statutory approach is needed. It was also noted that other legal duties such as those associated with the Community Empowerment (Scotland) Act have helped to focus attention on the importance of community engagement, partnership and empowerment.

Other reasoning in favour of creating a formal duty included that it would:

• Raise awareness across all stakeholders.
• Promote cultural change such that large-scale landowners see themselves as stewards and guardians of the land, with priorities to look after the natural environment, support local communities and protect the interests of future generations.
• Give landowners clarity with respect to their responsibilities.
• Be both in the community interest and benefit Scotland as a whole. Specific issues highlighted included allowing communities to plan their sustainable development and to have an input on large-scale transactions of land and subsequent land use change in relation to carbon markets or to windfarm development.
• Provide a mechanism to address incidents of poor practice.

Reasons there should not be a legal duty

It was also argued that, while no evidence has been presented to justify a move to a statutory approach, there is evidence to suggest the LRRS is working effectively on a voluntary basis and that more landowners are becoming aware of and engaging with it. Information provided to stakeholders by the SLC Good Practice Advisory Service was reported to have shown both increased numbers of enquiries from landowners and that, where there had been direct dialogue with landowners or their agents, ‘positive steps’ had been taken to develop and improve engagement practices. Some respondents provided examples of their own activities in response to the LRRS. It was suggested that the proposed legal duty could undermine the existing positive, collaborative approach and could be counterproductive. It was also argued that, if the Scottish Government wishes to impose obligations on landowners, they should enact legislation to be scrutinised under parliamentary process.

Other points made in favour of retaining the current voluntary approach included that the LRRS:

• Was only published in 2017 and has not had sufficient time to bed in.
• Has not been promoted sufficiently.
• Is currently under review.

Landholdings that should be covered by a legal duty

While supporting the introduction of a legal duty, some respondents argued that this obligation should not be restricted to large-scale landowners but should apply more broadly, with arguments that any duty should apply to:

• All landowners, to smaller-scale landowners, or to landowners covered by ‘right to roam’ provisions under the Land Reform (Scotland) Act 2003. Some respondents who opposed the duty in principle felt that, if applied at all, it should not be restricted to large-scale landholdings as proposed.
• Landowners in receipt of public funds, with various suggestions with respect to a threshold that might be set.
• Urban landowners.
• Specific type of landowner including the Crown, Government/Public Agencies and charities.
• Specific assets of community significance.

These issues have already been discussed in the analysis at Question 1. With respect specifically to a duty to comply with the LRRS it was argued that, since the current voluntary arrangements apply to everyone, limiting a legal duty to large landowners could create a two-tier approach, risking creating confusion or giving the impression that smaller landholdings do not need to implement LRRS principles. It was also observed that the LRRS and its protocols applies to tenants and community bodies as well as land managers, and the proposed restriction does not seem to be in line with the spirit of the LRRS.

One suggestion was that while all landowners should have a duty to comply, smaller landholdings should be subject to an advisory process rather than statutory enforcement procedures. Another proposal was that the Scottish Government might set a target date to broaden the scope of the requirement to cover all significant landholdings.

Suitability of the LRRS and protocols as the basis for a legal duty

Some respondents focused on the nature of the LRRS and its associated protocols, arguing that these are not an appropriate set of documents on which to place a legal obligation. It was noted that these materials were produced for use as guidance, and it was suggested that their broad scope and potentially ambiguous language mean they are too open to subjective interpretation to be legally enforceable. Phrases such as ‘high standards’ and ‘should consider’ were highlighted as illustrating this point and it was argued that moving to a legislative approach would be difficult when rights and responsibilities are not quantifiably defined. There was also a suggestion that parts of the LRRS relate to matters that are not within the control of landowners.

There was also a view that, while the LRRS is an appropriate document on which to base a duty, more work will be required to ensure that it is suitable for purpose, or to clarify which elements would become obligatory. In particular, it was suggested that that there need to be clearly defined expectations of landowners, with clearly framed and proportionate requirements to provide certainty with respect to compliance. One Representative body respondent anticipated that setting out objective criteria to test compliance with the LRRS would require clarity as to what constitutes good land management. They suggested this should be linked to the Land Use Strategy and also wider issues affecting land, including food security.

It was also argued that requirements should be developed in an enabling manner to encourage positive land use management and uptake. One suggestion was for a supplementary document setting out clear compliance requirements, some of which could be universal with others specific to different land classifications.

A further issue raised was that the SLC’s intention to produce further protocols creates open-ended exposure to regulation without Parliamentary sanction.

Other issues highlighted

Some respondents referenced the need for meaningful enforcement powers if a legal duty is to be effective. Others suggested that enforcement should be as light touch as possible or that, in some circumstances, providing incentives to comply might be a constructive approach.

It was also suggested that the process could be streamlined by integrating LRRS compliance with the proposal for a compulsory Land Management Plan, and so linking any enforcement aspects. LRRS enforcement is considered in detail at Question 5, and proposals for compulsory Land Management Plans are covered at Question 8.

Other issues raised in relation to a duty to comply with the LRRS included concerns that:

• Any legal obligations relating to crofting estates should be consistent with crofting rights and obligations. It was noted that where the substantial rights on an estate are with the crofters, a landowner might have difficulty discharging any legally enforceable LRRS obligations.
• Failure to comply with all LRRS principles might result in barriers to using land for important national objectives, including measures to address the climate emergency and nature crisis.
• Government grants to support tree planting targets might be reduced if the process to investigate alleged LRRS breaches is not protected from vexatious complaints.

Strengthening the content of the LRRS

Although beyond the scope of this consultation, some respondents referenced aspects of the LRRS that they would like to see strengthened. Briefly, these included:

• Reference to duties already placed on landowners under Section 3 of the Land Reform (Scotland) Act 2003.
• Reference to public access rights and provisions. It was argued that while the Scottish Outdoor Access Code is referenced, this provides guidance but no statutory requirements.
• Further strengthening with respect to net zero objectives, and on protecting and enhancing biodiversity.
• Embedding greater ecological understanding in the protocols.
• Recognising the finite nature and intrinsic value of Scotland’s natural resources.
• Greater emphasis on nature restoration and rewilding.
• Addition of a requirement to undertake and publish Environmental Impact Assessments in relation to certain land use changes.

Question 5 – If there was a legal duty on large-scale landowners to comply with the Land Rights and Responsibility Statement and its associated protocols, we propose that this should be enforced by having a formal procedure for raising complaints, and by making provisions for independent adjudication and enforcement.

Q5(a) Do you agree or disagree with the proposal above?

Responses to Question 5(a) by respondent type are set out in Table 8 below.

Table 8 Question 5(a) – Do you agree or disagree with the proposal above?

	Agree	Disagree	Don’t know	Total
Organisations:
Academic group or think tank	4	0	0	4
Community or local organisations	18	0	2	20
Government and NDPB	10	0	1	11
Landowner	6	25	3	34
Private sector organisations	7	5	1	13
Representative bodies, associations or unions	16	4	2	22
Third sector or campaign group	27	1	2	30
Total organisations	88	35	11	134
% of organisations	66%	26%	8%
Individuals	275	51	15	341
% of individuals	81%	15%	4%
All respondents	363	86	26	475
% of all respondents	76%	18%	5%

Percentages may not sum to 100% due to rounding

A majority of respondents, 76% of those who answered the question, agreed that there should be a formal procedure for raising complaints, and provisions for independent adjudication and enforcement. Individual respondents were more likely to agree than organisational respondents at 81% and 66% respectively. Among organisations most groups showed a clear majority in agreement, with the exception of Landowner respondents where a substantial majority disagreed, and Private sector organisation respondents who were relatively evenly divided.

Please give some reasons for your answer.

Around 285 respondents provided a comment at Question 5(a).

Reasons there should be a formal procedure

Some respondents argued that creating a legal duty would be pointless without an enforcement mechanism or that there will need to be a process for reporting and investigating complaints. It was suggested that:

• Voluntary approaches are not effective.
• Many participation requests have not led to outcomes that community participation bodies have been satisfied with.
• Community-oriented legislation that is legally enforceable or where appeals can be made is taken more seriously and has led to more positive outcomes than legislation which that is not.
• A formal procedure will both incentivise compliance and provide a mechanism for communities to raise issues without court action.

Reasons there should not be a formal procedure

Other respondents reiterated a view that there should not be a legal duty to comply with the LRRS, or that this would be a disproportionate response when a guidance-led approach is already in place. Existing mechanisms for communities to raise concerns were noted, with the SLC’s Good Practice Advisory Service often cited as a means whereby communities and landowners can seek advice on the LRRS. It was argued that, before considering further legislation, the Scottish Government should evaluate the effectiveness of this service and seek to improve it or raise its profile.

Concerns were also raised that a new, formal procedure could add to costs and administrative burden on rural land-based businesses and could prove counter-productive.

Issues to clarify

As at Question 4, both respondents who supported placing a legal duty on landowners and those who did not argued that, in its present form, the LRRS and protocols are too subjective or open to interpretation to provide the basis for an effective regulatory framework. It was suggested that landowners may be unsure exactly what is required and that, if they are to be placed under a legal duty, there should be clear, succinct guidance and objective criteria to test compliance, preferably with criteria set out in legislation.

Some respondents noted that their ability to comment was limited by lack of detail in the consultation paper, or that they would wish to see proposals developed further before commenting on an enforcement procedure. These points were made both with respect to having clearly defined expectations of landowners as set out above, and in relation to the nature of the enforcement mechanism envisaged. Clarity was requested specifically in relation to:

• The proposed forum of adjudication and why the question refers to ‘adjudication’ but the consultation text refers to ‘mediation’?
• What weighting complaints would have – for example whether a single complaint might result in enforcement action?
• Proposed timescales – for example whether there would there be time to appeal or rectify prior to enforcement?

Features of a formal process

Many respondents made points about how an enforcement process should work, most frequently that it must be independent and must be fair/transparent. Other suggested criteria included that the process should:

• Be adequately resourced or independent of resources. It was argued that there may be inequity of support between landowners and communities.
• Be simple and easy to understand and should provide free legal advice.
• Be timely/streamlined in operation.
• Include regular, random inspections of landowners to ensure compliance with the LRRS, rather than applying enforcement only following a complaint.
• Focus on early engagement and conflict resolution to avoid the need for a formal complaints procedure to come into force.
• Provide options for compensation, for example in terms of community wealth building or affordable housing.
• Take a proportionate response, enabling a range of actions in the event of non-compliance resulting from accidental oversight through to deliberate breaches. Consider setting a threshold of non-compliance that makes a complaint eligible for investigation.
• Guarantee anonymity for complainants who may fear reprisals.
• Include an appeal process.
• Include a mechanism to avoid spurious, malicious or frivolous complaints.

On the last point, concerns were raised that a compliance and complaint process could be hijacked for political or personal purposes, or that unfounded or self-interested complaints could have a negative impact on good work of landowners or occupiers. It was argued that an education programme for wider stakeholders should be considered to avoid false reporting.

Views on the Tenant Farming Commissioner as a potential model

As suggested in the consultation paper, some respondents saw the operation of the Tenant Farming Commissioner (TFC) and the TFC’s codes of practice as providing a potential model for a system implementing LRRS compliance. It was suggested that similar implementation of the LRRS through codes, guidance and an ability to inquire into alleged breaches could achieve a wider cultural shift beyond use of formal legislative mechanisms.

However, it was also argued that the Scottish Government should avoid combining advisory and adjudication roles, as is currently the case with the TFC and it was argued that a system whereby a commissioner adjudicates on breaches of their own protocols does not provide appropriate independence. It was also observed that there are no legal duties on landlords or tenants to comply with the TFCs’ codes of practice.

A number of other bodies were highlighted either as a being suitable to administer a formal enforcement procedure or as providing a potential model that might be followed. Suggestions made at Question 5(b) are included in the analysis at Question 5(c) where this topic is considered in more detail.

Other issues raised

A small number of other points were raised with respect to enforcement of a duty to comply with the LRRS including that:

• Land use decisions which are necessary to carrying out statutory duties in relation to water and wastewater services should take precedence over compliance with the LRRS.
• The Scottish Government should consider the inter-relationship of the LRRS with wider regulatory processes affecting land. For example, it was suggested that projects such as large wind farm developments, already subject to scrutiny via the planning application process could be subject to further procedures if the LRRS protocols were invoked.

Q5 (b)(i) Do you agree or disagree that only constituted organisations that have a connection to the local area or the natural environment should be able to report breaches of the Land Rights and Responsibility Statement?

Responses to Question 5(b)(i) by respondent type are set out in Table 9 below.

Table 9 Question 5(b)(i) – Do you agree or disagree that only constituted organisations that have a connection to the local area or the natural environment should be able to report breaches of the Land Rights and Responsibility Statement?

	Agree	Disagree	Don’t know	Total
Organisations:
Academic group or think tank	1	3	0	4
Community or local organisations	4	11	2	17
Government and NDPB	4	3	4	11
Landowner	7	17	5	29
Private sector organisations	5	5	4	14
Representative bodies, associations or unions	5	13	4	22
Third sector or campaign group	2	20	6	28
Total organisations	28	72	25	125
% of organisations	22%	58%	20%
Individuals	117	179	35	331
% of individuals	35%	54%	11%
All respondents	145	251	60	456
% of all respondents	32%	55%	13%

A majority of respondents, 55% of those answering the question, did not agree that only constituted organisations that have a connection to the local area, or the natural environment should be able to report breaches of the LRRS.

In their further comments, it was clear that some respondents disagreed because they thought that everyone should be able to report breaches of the LRRS, and others because they thought that the proposed list is too widely drawn. Respondents taking the former position tended to disagree at 5(b)(i) and then agree or not know at the following three questions. Respondents taking the latter view typically disagreed at all four elements of 5(b).

Q5 (b)(ii) Should these constituted organisations have a remit on:

• Community?
• Charity?
• Public service?

Responses to Question 5(b)(ii) by respondent type are set out in Tables 10 - 12 below.

Table 10 Question 5(b)(ii) Should these constituted organisations have a remit on community?

	Agree	Disagree	Don’t know	Total
Organisations:
Academic group or think tank	3	1	0	4
Community or local organisations	10	1	1	12
Government and NDPB	6	1	2	9
Landowner	8	16	5	29
Private sector organisations	5	3	5	13
Representative bodies, associations or unions	8	6	4	18
Third sector or campaign group	15	1	5	21
Total organisations	55	29	22	106
% of organisations	52%	27%	21%
Individuals	213	42	33	288
% of individuals	74%	15%	11%
All respondents	268	71	55	394
% of all respondents	68%	18%	14%

Table 11 Question 5b(ii) – Should these constituted organisations have a remit on charity?

	Agree	Disagree	Don’t know	Total
Organisations:
Academic group or think tank	3	1	0	4
Community or local organisations	10	1	1	12
Government and NDPB	4	2	3	9
Landowner	5	20	4	29
Private sector organisations	3	5	5	13
Representative bodies, associations or unions	6	8	4	18
Third sector or campaign group	15	1	5	21
Total organisations	46	38	22	106
% of organisations	43%	36%	21%
Individuals	164	57	58	279
% of individuals	59%	20%	21%
All respondents	210	95	80	385
% of all respondents	55%	25%	21%

Percentages may not sum to 100% due to rounding

Table 12 Question 5b(ii) – Should these constituted organisations have a remit on public service?

	Agree	Disagree	Don’t know	Total
Organisations:
Academic group or think tank	3	1	0	4
Community or local organisations	10	1	1	12
Government and NDPB	5	1	3	9
Landowner	8	15	6	29
Private sector organisations	5	3	5	13
Representative bodies, associations or unions	7	5	5	17
Third sector or campaign group	15	1	5	21
Total organisations	53	27	25	105
% of organisations	50%	26%	24%
Individuals	184	45	50	279
% of individuals	66%	16%	18%
All respondents	237	72	75	384
% of all respondents	62%	19%	20%

Percentages may not sum to 100% due to rounding

With respect to the remit of constituted organisations, the level of agreement varied from 68% for communities, 62% for public sector, and 55% for charities. However, in a large majority of cases, respondents who answered all three elements gave the same answer in each case, with fewer than 1 in 5 respondents having mixed views on the different remits.

Please provide some reasons for your answers and any additional suggestions

Around 305 respondents provided a comment at Question 5(b).

General comments included that it will be important to set out the respective roles of a reporting body and the regulating body and to define lines of communication between them. Otherwise, it was suggested there is a risk that the reporting body could be seen as the regulator.

Only constituted organisations that have a connection to the local area or the natural environment should be able to report breaches of the LRRS

Some respondents found the phrase ‘constituted organisations that have a connection to the local area or the natural environment’ unclear and there were requests for more detailed explanation or examples with respect to:

• How a ‘constituted organisation’ would be defined?
• What ‘connection to the local area’ would mean in practice?

With reference to the former it was suggested that roles and relationships should be clearly defined in writing.

With reference to the latter, it was suggested a connection test must be both clear and certain – for example by reference to the domicile or registration address of an organisation with a connection to the local area.

Constituted organisations

Reasons for limitation to constituted organisations

Some respondents who thought that there should be no legal duty agreed that, if the Scottish Government does introduce such a duty, then only properly constituted organisations should be able to report an alleged breach.

It was also argued that restricting the ability to report breaches will be important to:

• Limit potential for vexatious complaints.
• Generate properly considered and collated complaints rather than more numerous individual ones.
• Ensure those making a complaint understand both the role of the LRRS and their own role in reporting a potential breach.

It was suggested that a concerned individual could approach an appropriate organisation to take a complaint forward on their behalf.

Reasons against limitation to constituted organisations

Some respondents argued that the LRRS should remain on a voluntary basis and hence that nobody should report breaches.

A very different perspective was that there should be no restrictions on who can report a breach, with respondents arguing that anyone should be able to do so or specifying that this should include individuals, any interested bodies or any type of organisation. Reasons given in support of this position included that:

• The consultation document does not provide a justification for restricting complaints to constituted organisations.
• Those most impacted by breaches should be able to report them and that the proposed criteria could exclude many reasonable sources of complaint.
• A right for individuals to report breaches would avoid the need for members of community councils to get involved in local disputes and that bodies such as such as community councils can come under pressure from landowners not to take action.
• There may not be any constituted groups in the area or such organisations may either not have capacity or not consider a potential breach important enough to submit a report.
• A requirement to be a constituted organisation risks excluding many of the communities most impacted by irresponsible land management while well-organised, well-resourced communities may benefit from the legislation.
• Tenants, landlords and other landowners might also wish to report a breach but not be a member of an appropriate organisation.
• There may be an equalities issue if access to reporting of breaches is only available to organisation members.

Other suggestions included that reporting breaches should be open to individuals resident within the landholding, or within a defined geographical community adjacent to the landowning. If reporting were to be restricted to organisations, it was argued that a clear route should be provided such that individual complaints can be directed via appropriate bodies.

Some respondents argued that there should be a facility for reporting to be anonymous or for whistle-blower protections, citing concerns around potential repercussions or pressure not to report breaches.

Addressing vexatious complaints

The possibility of vexatious complaints was addressed by a range of respondents who often tended to one of two positions, either:

• That, as noted above, limiting the parties able to report breaches would help to reduce frivolous or vexatious reports; or
• That rather than allowing only certain parties to report breaches, reporting should be evidence based, and that that the body responsible for investigating complaints should have both procedures and resources to dismiss spurious or vexatious complaints.

It was also argued that a mechanism is needed to provide redress for a landowner subject to repeated, unjustified complaints.

Connection to the local area

Comments on a requirement for a connection to the local area included that some parts of the country are home to more numerous or active community groups than others, with an implication that landowners in these areas may be subject to a greater number of complaints.

Reasons in favour of limitation to the local area

Reasons in favour of a requirement for a local connection included that it seems fair that local complaints should be addressed by local organisations, which will be well placed to understand local issues.

Reasons against limitation to the local area

Reasons against such a limitation included that wider communities of interest (for example those with an interest in the outdoor access code) would be excluded and that communities of place may find it difficult to make complaints about large landowners. It was also argued that:

• Many of the proposals in the consultation relate to land management in the national interest, so wider reporting would be appropriate.
• The capacity for land management practices to impact environmental conditions well beyond the immediate locality means that anyone who is aware of a breach should be able to pursue a complaint without needing to demonstrate a connection to the local area.

It was also suggested that there could be a role for a national organisation to work with or support local organisations if they are not constituted.

Connection to the natural environment

Reasons for a connection to the natural environment

There was agreement that a constituted organisation with a connection to the natural environment should be able to report breaches, and an assumption that this would include national environmental groups in the broadest sense. Reporting of breaches by natural environment stakeholders was also seen as fair in light of the requirement for land management in the national interest.

Reasons against a connection to the natural environment

However, other respondents argued that this provision is too widely drawn or disproportionate, citing the implication that any national organisation with a connection to the natural environment would be free to report perceived LRRS breaches anywhere in the country. It was argued that this would be at odds with the previous requirement for a connection to the local area, and that complaints by national organisations may not be in line with the objectives of the local community, with a risk that constituted community groups with a local interest could be side-lined.

Alternative suggestions included that organisations having only a connection to the natural environment should:

• Become involved solely at the request of local organisations.
• Report their concern to a public service organisation – such as the local authority – to decide whether a report is merited.

There were also views that the phrase ‘connection to the natural environment’ is vague and capable of wide interpretation and that it is unclear why such organisations should be privileged over other types of interest groups in terms of reporting breaches. It was also noted that it would be unusual to create a formal adjudication process where one type of campaigning group is given a standing that others do not have, and ‘a constituted organisation with a sufficient interest in the matters complained of’ was suggest as an alternative.

A community remit

Although constituted community organisations were seen well-placed to report breaches, it was also argued that rather than a limitation to constituted organisations, other community groups with an interest in land management should be able to report potential breaches. It was suggested that conditions similar to those that groups have to meet in order to be a ‘community participation body’ under the Community Empowerment (Scotland) Act could be used. Some respondents highlighted the importance of the views of the whole community being represented, with a suggestion that community groups should be provided with training in suitable processes to ensure that all voices are heard and that the will of the majority is not overridden by a minority. It was also argued that it would be preferable for only groups with an open membership structure to be eligible.

It was noted that some community groups do not have charitable status as they have a business development aim that precludes this.

Reasons that respondents thought community organisations should not be empowered to report LRRS breaches included that they may not be representative of the majority view. In addition, one respondent reported their own experience within a small community of multiple groups with differing aims and objectives, all purporting to represent the community.

Other potential concerns included that:

• Groups may have limited capacity or relevant knowledge.
• The role may conflict with an organisation’s permitted remit (for example the status under which a community trust was licensed).
• Groups may be concerned that this responsibility could impact relationships with local landowners or may be reluctant to oppose the local landowner.
• Community led organisations may themselves be landowners and should not be exempt from scrutiny.

A charity remit

Some respondents raised concerns about the specific agendas that some charities have, including arguments that these may run counter to legitimate land practices or may be to the detriment of the wider social or economic interests of the community. Other respondents, while supporting their involvement, argued charities should be moderated in some way or should have a lesser status than local community groups. It was also argued that many charities have ‘single-tier’ governance structures which do not require the Trustees to be accountable to anyone other than themselves.

There was also a view that charities could have an important role, particularly where rural communities feel unable to speak out against large landowners or, along with public bodies, could be involved in the case of remote estates with no associated communities.

A public service remit

Relatively few respondents commented specifically on the option of a public service remit.

Points raised in support of a role in reporting LRRS breaches included that this seems logical in view of the policy focus on a just transition and delivery of public benefits. A small number of respondents argued that constituted organisations with a public service remit should be the only means of reporting complaints, or that other organisations should report complaints via a public sector body.

An alternative perspective was that public sector bodies already have protocols in place for controlling land management and should not have an alternative route for so doing, including because this could be used for political purposes.

Types of organisation that are missing

As noted above, communities of interest rather than of place were highlighted as currently excluded and there were suggestions that organisations with interests in public access, Scottish bodies who are on the National Access Forum, and constituted recreational groups should be able to report breaches. Other suggested additions included:

• Constituted organisations with responsibilities to the historic environment.
• Housing associations, if they do not fall into one of the existing categories.
• Non-governmental organisations (NGOs), many of which are companies rather than charities. It was also noted that these may also be large landowners and that new powers should allow for this complexity. An alternative view was that, like charities, some NGOs have their own agendas that may run counter to some legitimate land practices.

Q5(c) Do you think the responsibility for investigating and dealing with complaints should sit with:

• The Scottish Government?
• A public body (such as the Scottish Land Commission)?

Responses to Question 5(c) by respondent type are set out in Tables 13 and 14 below.35

Table 13 Question 5(c) – Do you think the responsibility for investigating and dealing with complaints should sit with the Scottish Government?

	Yes	No	Don’t know	Total
Organisations:
Academic group or think tank	0	1	2	3
Community or local organisations	2	8	5	15
Government and NDPB	0	5	3	8
Landowner	2	26	5	33
Private sector organisations	1	10	2	13
Representative bodies, associations or unions	4	15	4	23
Third sector or campaign group	3	12	8	23
Total organisations	12	77	29	118
% of organisations	10%	65%	25%
Individuals	96	125	59	280
% of individuals	34%	45%	21%
All respondents	108	202	88	398
% of all respondents	27%	51%	22%

A small majority of respondents, 51% of those answering the question, did not think the responsibility for investigating and dealing with complaints should sit with the Scottish Government. Of the remaining respondents, 27% thought responsibility should sit with the Scottish Government and 22% did not know.

Table 14 Question 5(c) – Do you think the responsibility for investigating and dealing with complaints should sit with a public body (such as the Scottish Land Commission)?

	Yes	No	Don’t know	Total
Organisations:
Academic group or think tank	2	0	2	4
Community or local organisations	15	0	3	18
Government and NDPB	6	1	3	10
Landowner	4	23	5	32
Private sector organisations	4	7	2	13
Representative bodies, associations or unions	10	7	6	23
Third sector or campaign group	12	4	6	22
Total organisations	53	42	27	122
% of organisations	43%	34%	22%
Individuals	217	63	43	323
% of individuals	67%	20%	13%
All respondents	270	105	70	445
% of all respondents	61%	24%	16%

Percentages may not sum to 100% due to rounding

In contrast to the question about the Scottish Government, a majority, 61% of those answering the question thought responsibility should sit with a public body. Of the remaining respondents, 24% disagreed and 16% did not know. Landowners and Private sector organisations respondents were the only groups in which a majority disagreed.

A small number of respondents answered ‘Yes’ to both questions.

Please provide some reasons for your answers and any additional suggestions.

Around 320 respondents provided a comment at Question 5(c). In addition to these comments, the analysis below includes suggestions made at Question 5(a). Although the consultation paper does not say so, many respondents clearly expected that the ‘public body’ in question would be the SLC and framed their answer in this context.

Reasons for responsibility to sit with the Scottish Government rather than a public body

As noted above, this was very much a minority position, particularly among organisational respondents. Reasons given in favour of the Scottish Government taking responsibility for investigating complaints included that, as an elected body, it is more accountable, and that a centralised approach would ensure consistency. It was also argued that the Scottish government would have the necessary powers to enforce action. Some respondents suggested that although ultimate responsibility and oversight should rest with the Scottish Government, they would support delegation of responsibilities to an independent public body or ombudsman.

Reasons for responsibility to sit with a public body rather than the Scottish Government

Reasons that respondents considered responsibility should sit with a public body included that distance should be maintained between legislator and enforcer and that, where Ministers have expressed policy objectives in respect of the proposed Bill, it would be difficult to overcome the perception of possible bias. It was also argued that:

• The Scottish Government might be the subject of a complaint in relation to land for which it is responsible.
• Enforcement by a public body would allow delegation upwards in an appeal process.

A small number of respondents noted that while supporting use of an existing public body, they would not support creation of a new public body to fulfil the role.

Both, either and neither

Some respondents – largely Individuals – suggested that both the Scottish Government and a public body should be responsible for investigating complaints, potentially with some decisions being referred to the Scottish Government. Others indicated that either the Scottish Government or a public body would be acceptable, sometimes referencing what they saw as the important characteristics of any organisation fulfilling the role.

In contrast, a number of respondents including Landowner and Private sector respondents argued that neither the Scottish Government nor a public body should be responsible. Reasons given included fundamental opposition to the concept of a duty to comply with the LRRS, with a view that the proposed approach is disproportionate. Respondents taking this view often anticipated that the public body in question would be the SLC, and argued that neither Scottish Government nor SLC can be seen as independent, including because the SLC advises the Scottish Government on land reform and that it would not be appropriate for any organisation to both set the principles of land use and also be the arbiter of complaints – or to be ‘judge and jury’.

There was also a view that, since it is not yet clear what the body in question would be tasked with adjudicating or what its powers would be, it is not possible to know what sort of body would be appropriate.

Characteristics of the organisation charged with investigating complaints

Irrespective of their answers at the closed questions, many respondents identified similar characteristics as important for any organisation made responsible for investigating complaints, most frequently that it should be independent and should be fair or impartial.

Other aspects identified included that the organisation should be:

• Transparent and consistent.
• Accountable.
• Adequately resourced, including to provide decisions without undue delays.
• Given appropriate powers to enforce its judgements.
• Provided with staff who understand the importance of healthy ecosystems.
• Compliant with the right to a fair trial under ECHR Article 6.
• Required to make information on complaints/breaches available to other relevant public bodies.

Some respondents expressed views on how a body should be made up, including that it should include a range of interests with representation of landowners, farmers, environmental and community groups all suggested.

Points raised with reference to the SLC

As noted above, many respondents apparently expected that the SLC would be the relevant public body charged with investigating complaints, giving their reasons why this would be appropriate or otherwise.

SLC would be an appropriate body

A range of respondents including Community or local organisation, Representative body and Third sector respondents saw the SLC as the appropriate body to take responsibility for investigating complaints. Reasons for taking this view included that:

• Having set up the LRRS the SLC would be best placed to investigate complaints.
• It will have appropriate experience and expertise to handle complaints, including because it undertakes a similar role in relation to the work of the TFC.
• As a national body, it would be well positioned to take an overview and investigate alleged breaches in a consistent way.
• Responsibility for investigating complaints could be in a separate section within the SLC.

It was also suggested that, in order to fulfil such a role, the SLC would need both additional resources and an altered remit, with extended powers to enable enforcement. It was thought likely that this would require amending the SLC’s founding legislation in the Land Reform (Scotland) Act 2016.

While seeing the SLC as the best choice to assume responsibility for investigating complaints respondents also suggested that:

• It might be appropriate for more severe enforcement actions (such as compulsory purchase of land) to be sanctioned by the Scottish Government.
• Environmental Standards Scotland should also have a statutory role in checking overall compliance mechanisms and undertaking periodic reviews of the system.

SLC would not be an appropriate body

Respondents who argued that the SLC should not investigate complaints included some Landowners, Private sector organisations, Representative bodies and Third sector respondents. Reasons for this position included that:

• The role of the SLC (as set out in Land Reform (Scotland) Act 2016) is to advise the Scottish Government, provide guidance and best practice notes, and to provide recommendation on law and policy, and that this would not be compatible with a regulatory role.
• An extension of SLC responsibilities to include investigation and enforcement would be a significant change and, without clear divisions of powers and responsibilities, the governance of land could become unnecessarily complex. It was suggested that before proceeding, the SLC would need to be restructured in a way that would retain the confidence of all stakeholders.
• The SLC is funded by the Scottish Government, and not sufficiently independent of the Scottish Government, and that some landowners do not have confidence its impartiality.
• The proposed change could have a negative impact on other work the SLC do with landowners, or that a regulatory role may reduce its ability to campaign effectively for policy change.

Alternative suggestions

While many respondents commented on the suitability, or otherwise, of the SLC as a body to enforce the LRRS, a range of other suggestions was also made.

Other bodies that could be responsible for investigating complaints

In terms of bodies that might assume the role or be part of the process, suggestions included:

• A new body that sits between the Scottish Government and the SLC.
• A dedicated, independent panel, with representation from across the different sectors to ensure an informed and balanced view is taken.
• The merged Scottish Land Court/ Lands Tribunal for Scotland, or an environmental court or tribunal with appropriate expertise which, some respondents suggested, could be created by expanding the jurisdiction of the Scottish Land Court.
• Community-level local democratic measures (such as municipal-scale Citizens’ Assemblies) ultimately reaching a Scottish or international environmental court.
• Local authorities, with the advantage of being democratically accountable and where implementation of planning policy or the outdoor access code could be used as models. Specific suggestions included that after a local authority decision, an appeal could be made to the environmental court or tribunal, and that a right of planning appeal for community groups could be introduced with respect to land management permissions granted through the planning system. However, there was also a view that planning authorities should not be expected to commit to additional duties or that they would not have the capacity to do so without significant additional resources.
• The Reporters system could be adapted to deal with complaints.
• Other land-based public bodies with existing regulatory responsibilities. It was suggested NatureScot or SEPA could be strengthened, or the role of the Rural Payments and Inspections Division could be expanded.

Other potential models

With respect to other potential models for regulation, suggestions included the TFC Codes of Practice. It was noted that the TFC Codes of Practice provide an opportunity for both sides of a case to be heard and recommendations to be made, but without imposing fines, because of concerns that this would not be compatible with ECHR Article 6. It was argued that a mechanism similar to the TFC Codes of Practice would be a more proportionate approach should a duty to comply with the LRRS be introduced.

Other suggestions for potential models included:

• The Office of the Scottish Charity Regulator.
• Royal Institution of Chartered Surveyors (RICS) Dispute Resolution Service.
• Food Standards Scotland.

Q5(d) Should the potential outcome from an investigation of a breach be:

• Recommendation for a mediation process?
• Recommendation on how the landowner or governing body could comply with the Codes of Practice/protocols?
• A direction to the landowner or governing body to implement changes to operational and/or management practices?

Responses to Question 5(d) by respondent type are set out in Tables 15 - 17 below.

Table 15 Question 5(d) – Should the potential outcome from an investigation of a breach be Recommendation for a mediation process?

	Yes	No	Don’t know	Total
Organisations:
Academic group or think tank	2	1	1	4
Community or local organisations	12	4	1	17
Government and NDPB	5	0	3	8
Landowner	27	4	2	33
Private sector organisations	7	3	3	13
Representative bodies, associations or unions	13	2	6	21
Third sector or campaign group	21	1	3	25
Total organisations	87	15	19	121
% of organisations	72%	12%	16%
Individuals	191	73	31	295
% of individuals	65%	25%	11%
All respondents	278	88	50	416
% of all respondents	67%	21%	12%

Percentages may not sum to 100% due to rounding

Table 16 Question 5(d) – Should the potential outcome from an investigation of a breach be Recommendation on how the landowner or governing body could comply with the Codes of Practice/protocols?

	Yes	No	Don’t know	Total
Organisations:
Academic group or think tank	3	1	0	4
Community or local organisations	10	5	2	17
Government and NDPB	7	0	2	9
Landowner	28	3	2	33
Private sector organisations	9	3	1	13
Representative bodies, associations or unions	15	1	5	21
Third sector or campaign group	22	1	2	25
Total organisations	94	14	14	122
% of organisations	77%	11%	11%
Individuals	216	61	24	301
% of individuals	72%	20%	8%
All respondents	310	75	38	423
% of all respondents	73%	18%	9%

Percentages may not sum to 100% due to rounding

Table 17 Question 5(d) – Should the potential outcome from an investigation of a breach be a direction to the landowner or governing body to implement changes to operational and/or management practices?

	Yes	No	Don’t know	Total
Organisations:
Academic group or think tank	4	0	0	4
Community or local organisations	17	0	1	18
Government and NDPB	5	1	2	8
Landowner	7	21	5	33
Private sector organisations	8	4	1	13
Representative bodies, associations or unions	8	5	8	21
Third sector or campaign group	19	1	4	24
Total organisations	68	32	21	121
% of organisations	56%	26%	17%
Individuals	266	47	17	330
% of individuals	81%	14%	5%
All respondents	334	79	38	451
% of all respondents	74%	18%	8%

Percentages may not sum to 100% due to rounding

A majority of those who answered the questions agreed with each of the three potential outcomes. Although overall approval levels were relatively similar between the three options, the patterns within each option were rather different:

• A recommendation for mediation had the lowest level of support overall with approval from 67% of respondents. Organisations were more likely to agree than individuals at 72% and 65% respectively, with a majority of all organisational groups in agreement.
• A recommendation on how to comply received higher overall support at 73% approval, again with greater agreement among organisations than individuals at 77% and 72% respectively, and again with a majority of each organisational group in agreement.
• A direction to implement change had the highest level of support overall, but saw the greatest divergence between views of individuals and organisations –only 56% of organisations agreed, in contrast to 81% of individual respondents. A majority of each organisational group agreed, with the exception of Landowner respondents where a clear majority disagreed.

Please provide some reasons for your answers and any additional suggestions.

Around 310 respondents provided a comment at Question 5(d), with some again stating their opposition to imposing a duty to comply with the LRRS in its current form and hence to any investigation.

Other general comments included that:

• There is often no single right answer to land management and a variety of models may be appropriate.
• Practical advice should be provided before moving to any enforcement measures.
• There should be no recommendation from an investigation of a breach, only from a finding of breach.
• Application of the various outcomes should be both transparent and consistent.
• The process must include a right of appeal.

The importance of effective co-ordination of statutory management obligations across Government departments was also highted, with references to alignment with requirements from NatureScot or SEPA and to interaction with other public permissions such as planning consents, forestry grants and agricultural payments.

With respect to the wording of the options, there were differing views on use of ‘recommendations’ – both at it this requires additional weight and should not be viewed as voluntary, and that ‘recommendations’ should not be enforced. One respondent noted that the legal consequences of failing to follow recommendations would have a direct bearing on their effectiveness and that, without information on what these consequences would be, they were unable to comment on the suitability of the process.

Yes to all options

Around a third of respondents answered ‘yes’ to all three options, with comments including that these are useful, reasonable, or proportionate. Together, the three options were seen as providing for a flexible approach, with a range of outcomes available to deal with breaches of differing severity, and for one-off occurrences or more regular patterns of behaviour. It was also noted that they provide a staged process that can be escalated, although there were concerns about the time required to work through a number of stages of an investigation, with suggestions that further information on timescales is required or that fixed timescales should be set.

No to all options

A small number of respondents answered ‘no’ to all three options, including because there should be no state intervention and no investigation, but also because more decisive penalties should be enforced. It was also suggested that, as drafted, the outcomes suggest that the landowner will always be deemed to be in the wrong which does not give the impression the process is open-minded and fair.

Recommendation for a mediation process

Reasons in favour

Some respondents felt that mediation could be useful in some cases, for example if the issue relates to the relationship with the community or a neighbour, and that there should be an opportunity for alleged breaches to be resolved as amicably as possible before any escalation. It was also seen as a proportionate response and one that could also be used at an earlier stage, for example as part of the investigation process rather than an outcome to it.

The TFC mediation scheme for handling complaints and resolving disputes was cited as a potential model.

Reasons against

However, it was also noted that, in many cases, there will be no obvious second party when a breach is alleged and that mediation would not be appropriate, for example, in the context of an alleged breach of a statutory duty. It was also suggested that mediation is less likely to be effective if the power lies predominantly with one party. Other concerns included that mediation seems too much like the existing voluntary approach to the LRRS and that it could be used as a delaying tactic, wasting both time and resources.

Recommendation on how the landowner or governing body could comply with the Codes of Practice/protocols

Reasons in favour

Some respondents saw advice or recommendations from a regulatory body and the opportunity to take corrective action as more proportionate than more penalties, with the TFC approach again referenced.

Other views included that recommendations on how to comply are likely to be appropriate for more minor or accidental breaches, that a recommendation should be sufficient for a responsible landowner to take appropriate action and that landowners would need to be given time to rectify the situation before moving to formal direction. As with mediation, there was a suggestion that advice on how to comply should be part of the investigation process rather than an outcome of the process.

Reasons against

The possibility that advice may be ignored was the most frequent reason for opposing this option. Again, as with respect to mediation, there were views that providing advice seems too close to the existing voluntary approach and could result in time and resources being wasted. It was also suggested to be unenforceable.

A direction to the landowner or governing body to implement changes to operational and/or management practices

General comments included that more clarity is needed on what a ‘direction’ would mean, with a view that such a direction should be made by a body with an appropriate level of ecological understanding. It was also suggested that:

• The potentially serious consequences arising from failure to comply with a direction provide a reason for careful consideration of the membership and training of any independent adjudication tribunal.
• Power to issue a direction should only be available to a properly constituted tribunal with judicial powers.
• Where a direction is made, the availability of grants or subsidies to assist compliance would be helpful.

Reasons in favour

Some respondents who agreed with this option argued that it is necessary if the legislation is to have real effect or that, without ‘teeth’, there is a risk it will be ignored. Other views included that a direction to implement changes would be appropriate for more serious breaches or as a last resort when more constructive approaches have not worked and remedial action has not been taken.

Some respondents who favoured this option but not the other two argued that landowners should already know their responsibilities and that scope for quick enforcement action is now required. It was also noted that a landowner could be directed to one of the other two options – for example a direction to engage in mediation.

Reasons against

Some respondents argued that the LRRS lacks clarity or is too subjective and poorly understood by land managers to underpin a direction to a landowner. Potential difficulties were also highlighted with respect to:

• Whether a regulatory body might be reluctant to use such powers.
• How a landowner could be forced to implement changes to operational or management practices if these were otherwise not illegal activities.
• Issues for a statutory undertaker if a direction conflicted with their statutory obligations, and for any landowner if the direction related to operational practices beyond their control or responsibility.

Other suggested outcomes

It was noted that although the consultation paper suggests that the outcome of an investigation could be taken into account in any subsequent public interest test, views on this possibility are not being sought.

Respondents also suggested other potential outcomes including:

• That no breach has occurred, or that the complaint is without merit. It was argued that there must be powers to dismiss unsubstantiated complaints without full investigation.
• Advice from the regulatory authority, as in a TFC breach.
• Fines or application of a higher taxation rate.
• Disposal of assets by way of a Compulsory Sale Order with Ministerial sign-off.

Enforcement powers for a breach are discussed further at the next question.

Q5(e) Should the enforcement powers for a breach be:

• Financial penalties
• ‘Cross-compliance’ penalties

Responses to Question 5(e) by respondent type are set out in Tables 18 and 19 below.

Table 18 Question 5(e) – Should the enforcement powers for a breach be financial penalties?

	Yes	No	Don’t know	Total
Organisations:
Academic group or think tank	2	1	1	4
Community or local organisations	16	0	2	18
Government and NDPB	6	1	2	9
Landowner	5	22	4	31
Private sector organisations	5	5	4	14
Representative bodies, associations or unions	8	7	6	21
Third sector or campaign group	15	2	8	25
Total organisations	57	38	27	122
% of organisations	47%	31%	22%
Individuals	235	58	33	326
% of individuals	72%	18%	10%
All respondents	292	96	60	448
% of all respondents	65%	21%	13%

Percentages may not sum to 100% due to rounding

A majority of respondents, 65% of those who answered the question, thought that enforcement powers for a breach should be financial penalties. However, while 72% of individual respondents agreed, this dropped to only 47% of organisations: while a clear majority of Community, Government and NDPB and Third sector respondents agreed, a substantial majority of Landowner respondents were against the proposal, with both Private sector and Representative body respondents evenly divided.

Table 19 Question 5(e) – Should the enforcement powers for a breach be ‘cross-compliance’ penalties?

	Yes	No	Don’t know	Total
Organisations:
Academic group or think tank	2	1	1	4
Community or local organisations	17	0	1	18
Government and NDPB	6	1	2	9
Landowner	6	24	2	32
Private sector organisations	4	5	5	14
Representative bodies, associations or unions	10	5	5	20
Third sector or campaign group	19	1	5	25
Total organisations	64	37	21	122
% of organisations	52%	30%	17%
Individuals	207	48	61	316
% of individuals	66%	15%	19%
All respondents	271	85	82	438
% of all respondents	62%	19%	19%

Percentages may not sum to 100% due to rounding

A majority of respondents, 62% of those who answering the question, agreed that there should be cross-compliance penalties, again with higher approval among individuals than organisational respondents, at 66% and 52% respectively. There was a similar pattern of agreement and disagreement between organisational groups as with respect to financial penalties, apart from a greater degree of support from Representative body respondents.

It should also be noted that a majority of respondents gave the same answer at both questions.

Please provide some reasons for your answers and any additional suggestions.

Around 295 respondents provided a comment at Question 5(e).

General comments included views that penalties should only be imposed with judicial authority or only as a last resort, after other approaches have failed, and that time to implement corrective measures should be allowed before penalties are imposed. Practical examples of where penalties might apply were requested.

Agreement with either penalty

Some respondents took the view that either penalty is acceptable, or that whichever is more appropriate in a particular situation should be applied. For example, it was suggested that agricultural businesses could face cross-compliance penalties and non-agricultural businesses financial penalties.

Some respondents argued that the bar should be set high, with penalties applied in response to a flagrant breach, repeated breaches or where there is both lack of compliance and lack of effort to comply. Others suggested that serious and repeated breaches or breaches where financial penalties are of limited impact should attract additional penalties as outlined below.

Opposition to any penalties

Respondents from the Landowner group were among those who argued that either penalty would be a disproportionate response for failing to adhere to the LRRS, particularly as the LRRS and protocols were produced as guidance documents and are open to differing interpretation. It was also suggested that:

• LRRS protocols continue to evolve, and later versions may present different recommendations, creating potential for misunderstanding and disputes.
• ECHR implications in relation to the imposition of financial penalties may lead to legal challenges.
• Investment and work in fragile communities could be impacted.
• Penalties that limit the ability to keep land in agricultural production may have unintended consequences.

Financial penalties

Reasons in favour

Reasons given in support of financial penalties included that this would be a simple option and that not all landowners are in receipt of subsidies.

The most frequently made point concerned the level at which such penalties should be set, and that this should be sufficiently high to act as a meaningful deterrent, to avoid a situation where wealthy landowners can view paying a fine as a cost of doing business. It was also suggested that the penalty should be proportionate to the severity of a breach, with serious penalties for persistent breaches. With respect to how fines might be calculated suggestions included that they should be:

• A percentage of business income.
• Proportionate to the value of land owned.
• Appropriate to an individual landowner’s circumstances.

A small number of respondents suggested uses for money raised via financial penalties, including that funds could be used to support the compliance process, or to benefit local communities.

Reasons against

Although in principle supportive of financial penalties, some respondents expressed doubt whether these could be set at high enough levels to have a significant deterrent effect for large-scale landowners.

It was also suggested that imposing financial penalties may be seen as a confrontational approach and, as noted above, may be subject to legal challenge. The subjective nature of criteria such as ‘good stewardship of land’ was also highlighted as being open to local interpretation, with the potential that landowners doing the same things in different places might be treated differently in response to complaints. While it was thought there may be scope for failure to comply with a specific protocol to attract a penalty, it was argued that further detail is required in order to make a judgement.

Specific issues were also raised for trusts if penalties were to be imposed on individual trustees rather than the trust itself, including a suggestion that people could be reluctant to become trustees. It was argued that while some trusts owning large-scale landholdings are likely to have professional advisors, those classed as large-scale because of aggregation of relatively small areas of land may not have access to such advice.

Cross-compliance penalties

Reasons in favour

It was argued that cross-compliance penalties would be simpler to apply and that using removal of subsidies to incentivise certain activities would be the best or most effective way to drive compliance. It was observed that cross-compliance penalties might prove a greater deterrent to breaching the LRRS for large-scale landowners, who may be in receipt of substantial financial subsidies, and could provide a powerful incentive to comply while still leaving individual land managers to choose what to do. ‘Significant breaches’, ‘repeated infringements’ and ‘persistent non-compliance’ were all suggested as potential causes for non-compliance penalties to be imposed, and it was argued that access to subsidies should be restored after action is taken to address the breach.

Other suggestions included that:

• Power to withhold agricultural support payments as a sanction for failing to comply with LRRS should be taken forward in the forthcoming Agriculture Bill.
• Access rights should be included in the LRRS, and access authorities should be empowered to pass details of obstructions to grant awarding bodies to withhold payment until the matter is resolved.
• Applications for any form of public subsidy should require a statement that the owner is complying with the LRRS, in a manner analogous to Fair Work commitments.

It was also noted that cross-compliance, enforced by penalties including withdrawal of subsidies, has been standard practice in farming and crofting since introduced by the EU in 2003.

Reasons against

An alternative perspective was that the proposed use of cross-compliance penalties would be a significant divergence from the purpose for which cross-compliance was designed – agricultural support with links to animal welfare, environment and human health. It was suggested the implications could include:

• Funds granted for a specific purpose under a particular set of conditions being withheld or recovered for another.
• Direct recovery of penalties ‘by the backdoor’ if funds due to the penalised party, but not yet paid, are withheld.
• More inspections, creating additional work and stress for land managers.

It was also noted that, unless embedded in agricultural policy there is no recourse to induce a cross compliance penalty for failure to comply with the LRRS.

Other potential reasons that it was thought cross-compliance penalties may not be effective included that:

• The scheme depends upon the occupier and not necessarily the landowner.
• Some landowners will receive limited public funding and others none at all.
• Subsidies are paid to encourage actions believed to be for public good, so their removal could be counter-productive.

Additional penalties suggested

In addition to comments on the two penalties proposed in the consultation paper, respondents argued for alternative or additional sanctions that might be imposed, with disposal of assets and/or compulsory sale the most frequently suggested. Some respondents proposed that land should be confiscated in extreme cases.

Other suggestions included:

• A trigger for Community Right to Buy.
• Temporary appointment of a factor to ensure that remediation and compliance measures are undertaken.
• Withdrawal or suspension of other consents and licences – for example shooting licences, felling licences and livestock movement licences relating to the landowner’s business.
• Making non-compliance visible and publicly-known.
• Criminal prosecution or disqualification from land ownership.
• Direct intervention – for example to remove barriers and signs if public access is being unlawfully prevented.

Question 6 – Do you think the proposal to make the Land Rights and Responsibility Statement and its associated protocols a legal duty for large-scale landowners would benefit the local community?

Responses to Question 6 by respondent type are set out in Table 20 below.

Table 20 Question 6 – Do you think the proposal to make the Land Rights and Responsibility Statement and its associated protocols a legal duty for large-scale landowners would benefit the local community?

	Yes	No	Don’t know	Total
Organisations:
Academic group or think tank	4	0	0	4
Community or local organisations	19	0	0	19
Government and NDPB	6	0	5	11
Landowner	5	17	10	32
Private sector organisations	6	5	2	13
Representative bodies, associations or unions	13	3	8	24
Third sector or campaign group	23	0	6	29
Total organisations	76	25	31	132
% of organisations	58%	19%	23%
Individuals	244	63	27	334
% of individuals	73%	19%	8%
All respondents	320	88	58	466
% of all respondents	69%	19%	12%

A majority of respondents, 69% of those answering the question, thought that making the LRRS a legal duty for large-scale landowners would benefit local communities. Of the remaining respondents, 19% did not think so and 12% did not know. Individuals were more likely to think the proposal would benefit the community than organisations, at 73% and 58% respectively. Landowners were the only group in which a majority did not agree.

Please give some reasons for your answer.

Around 285 respondents provided a comment at Question 6.

General comments included a query with respect to how a ‘local community’ could be defined or identified, particularly in sparely populated areas.

Reasons that the community might benefit

Respondents suggested a range of ways in which a legal duty on large landowners would or could benefit the local community including that, on a general level, improved compliance with the LRRS principles relating to communities should benefit these communities. It was also suggested that a legal duty could send a signal to landowners that the LRRS must be taken seriously and that interaction with the local community needs to be part of estate management good practice. Further, the complaints process will provide a mechanism for communities to ensure protocols and codes are followed.

Some respondents noted potential caveats, for example that they expected benefits to the community as long as the process is fair, transparent, and properly enforced, or that benefits will depend on the LRRS and protocols being strong enough and implemented effectively. One suggestion was that proposals could be strengthened by consideration of the Place Principle.

Some respondents anticipated better outcomes arising from improved landowner engagement with the local community and from greater community involvement in decisions about land. It was suggested that National Standards for Community Engagement should be referenced in the legislation. A number of Individual respondents described issues in their surrounding area over which the community currently has no influence, for example in relation to increasing areas of plantation forestry or lack of opportunity for housing development. It was reported that, at present, it can be particularly difficult for communities to communicate with landowners who do not live locally.

Increased transparency and accountability were also seen both as potential benefits or, as noted above, necessary conditions for communities to benefit. It was suggested there could be benefits in providing clarity around land management activity and responsibilities that is currently not available to communities and in allowing the community to understand how the area is being managed.

Among other suggested benefits were:

• Respecting relevant human rights in relation to land.
• More opportunities for local communities to lease, use or own buildings and land that can contribute to the community’s wellbeing or sustainability.
• Opportunities for small-scale, environmentally friendly food production, allowing communities to have ownership over their own food, and increasing food supply resilience.
• Opportunities to engage with landowners to make the case for the development of more affordable housing or to support community ownership and community-led housing outcomes.
• Opportunities for improving biodiversity and other ecosystem services.
• Contributing to improvements in biodiversity and use of green space in urban areas.
• Helping to safeguard public access rights.
• Benefits in terms of well-being and cultural association.

It was suggested further consideration should be given to whether a local community could benefit from land that is subject to crofting tenure and where the rights over the land lie largely with the crofters. It was acknowledged that where land is common grazings, some LRRS obligations could benefit the local community.

Reasons that the community might not benefit

It was observed that the extent to which a community might benefit from a legal duty being imposed will depend on whether the landowner is already meeting LRRS requirements on a voluntary basis.

It was also suggested that potential benefits could be influenced by:

• Whether there are any large landowners nearby. It was noted that fewer communities will benefit if the threshold is set too high and some respondents argued the duty should not be restricted to large-scale landowners.
• Proposed restrictions on who can report breaches.
• Limitations to processes for local democracy and for communities to engage with the contents of the statement/protocols in a meaningful way. It was suggested Citizens’ Assemblies around land use and planning could be beneficial in this respect.
• A risk that, for some organisations, a disproportionate burden on volunteer managers could discourage volunteering and diminish community involvement.

It was also suggested that there is no benchmark against which benefits for the local community can be judged.

Reasons the community is unlikely to benefit

Some respondents argued that there is evidence to suggest that a voluntary, guidance-led approach is working for both landowners and communities, or that introducing a legal duty could lead to a breakdown in the relationship between landowner and local community or could alienate landowners. Broader objections to use of the LRRS as the basis for a legal duty were also referenced, and it was suggested that communities could be harmed if investment decisions are delayed as a result. It was also argued that communities could be disadvantaged if disagreements within them allowed projects favoured by a majority to be frustrated.

Other issues raised

Other issues raised with respect to potential community benefits included that, rather than pursuing the proposed approach, the Scottish Government should provide greater support for existing opportunities for communities to engage or more effective implementation of existing legislative powers. In particular, it was suggested that better resourcing of communities to prepare Local Community Plans would do more for community participation in decision making about land use in and around their communities. It was also suggested that:

• It would be useful for the Scottish Government to generate evidence that demonstrates the extent of failings of compliance with the existing LRRS protocols, by all types of rural landowners.
• While the Land Reform (Scotland) Act 2016 already provides a legal route to ensuring community engagement, research indicates this does not tend to be prioritised by new landowners or those embarking on significant land use change^[8]. New landowners (or generations of family ownership) appear to prioritise commercial interests and estate financial viability, rather than maintaining relationships with local community members.

Question 7 – Do you have any other comments on the proposal to make the Land Rights and Responsibility Statement and its associated protocols a legal duty for large-scale landowners?

Around 195 respondents answered Question 7.

As at earlier questions, some respondents argued that there should not be a legal duty, that the LRRS is too open to interpretation to be suitable for statutory enforcement, or that the current, guidance-based approach is proving effective. Rather than introducing a potentially adversarial approach that could reverse such progress, it was proposed that the Scottish Government should do more to support and incentivise land management that is consistent with the LRRS and its protocols. Specific suggestions included both that Regional Land Use Partnerships (RLUPs) should be better resourced and allowed to bed in before further land reform legislation is brought forward, and that RLUPs must do more to engage with all stakeholders.

It was also suggested that the Scottish Government should delay the proposals until the current review of the LRRS is complete, or should raise awareness and understanding of the LRRS before making changes to the current voluntary arrangements.

Concerns were also raised that placing an additional burden on landowners who are also private sector landlords could exacerbate loss of private rented sector properties in rural areas. It was argued that regulations should support compliance and avoid an additional burden on private landlords who may already be in a difficult financial position.

Also as at earlier questions, a number of respondents (including some who agreed with the principle of a statutory duty and some who did not) argued that a duty to comply with the LRRS should not be restricted to large-scale landholdings. It was also suggested that legal application of the LRRS should be extended to all relevant landowners through a consistent regulatory approach, or that the principles of the LRRS should be incorporated in a new land tenure system. Another suggestion was levying a land value tax, with incentives for adopting desired approaches.

The need for clarification was also suggested with respect to:

• The contribution of the LRRS to meeting net zero.
• Whether LRRS compliance would be entirely distinct from other public consenting systems or be a part of those systems.
• How decisions on land management taken by tenants or partners, rather than the landowner would be addressed.

Respondents also raised a range of additional issues that they would like to see included or addressed more prominently – again in some cases reiterating points made at earlier questions. There were calls to:

• Reference recreational use and access by the public, or to require compliance with the Scottish Outdoor Access Code. It was argued that public access can have economic benefits to both estates and their local communities.
• Recognise the value of local food production and its role in a just transition and climate change.
• Include nature restoration goals for large-scale landowners. However, it was also noted that, without associated land management, rewilding can have other consequences – for example in limiting public access or compromising food security.
• Apply the LRRS to urban areas.
• Include existing buildings and infrastructure as part of considerations around land management.
• Consider responsibilities to the wider historic environment.