Land reform in a Net Zero Nation: consultation paper

Part 2: The next step: Land Reform in a Net Zero Nation – the forthcoming Bill

The next Land Reform Bill will build on the Land Reform Acts of 2003 and 2016 to help us reach the goals we have set in a number of policy areas.

The Scottish Land Commission was established as a public body by the Scottish Government on 1 April 2017 to address issues relating to the ownership of land, land rights, management of land, and use of land. The commission incorporates the work of the Tenant Farming Commissioner. Their remit also includes land taxation, and the effective use of land for the common good.

One of their first tasks was to investigate issues connected with the scale and concentration of landownership in Scotland. Since 2000 a series of reports, including a briefing paper for the House of Commons Scottish Affairs Committee and a 2019 report by the Scottish Land Commission, have demonstrated that Scotland has an exceptionally high concentration of landownership by international standards. It is also unusual in having no constraints on who can own land, or how much they can own. In 2018, the Commission launched a discussion paper and call for evidence on this. In the following year they submitted their 2019 report to Scottish Ministers detailing their findings and recommendations.

Scottish Ministers responded to the 2019 report by asking the Scottish Land Commission to develop some of their recommendations further. In February 2021, the Scottish Land Commission published a discussion paper on 'Legislative proposals to address the impact of Scotland's concentration of landownership'. Additional information on this discussion paper can be found on the Scottish Land Commission website. The discussion paper put forward three key recommendations for changes in legislation:

• the requirement for significant land holdings to engage on, and publish, a Management Plan;
• a Land Rights and Responsibilities Review process, to take effect where there is evidence of adverse impacts; and
• a new Public Interest Test that would determine whether significant land transfers or acquisitions are in the public interest.

In her response, the then Cabinet Secretary for the Environment, Climate Change, and Land Reform, noted that:

"We will of course give this due consideration, and remain committed to working with partners to develop potential policy and legislative responses at the appropriate time, given the ongoing public health emergency we face. It is also imperative that any proposals taken forward are compliant with the European Convention on Human Rights and the devolved settlement."

The Scottish Government remains committed to tackling any adverse effects of scale and concentration of landownership in the next Land Reform Bill. Much has changed, however, since the Scottish Land Commission made their initial recommendations to Scottish Ministers in 2019. The next Land Reform Bill also needs to respond to a wider set of drivers of public policy, particularly in relation to the legal obligations to deliver a just transition to net zero.

The Programme for Government 2021-2022 committed to taking forward a new Land Reform Bill that would 'address the concentration of landownership in Scotland, including a public interest test'.

In August 2021 the Scottish Government and the Scottish Green Party Parliamentary Group reached an agreement on a shared draft policy programme – the Bute House Agreement. The agreement sets out the following commitment:

"The new Land Reform Bill will aim to ensure that the public interest is considered on transfers of particularly large-scale land holdings, and we will aim to introduce a pre-emption in favour of community buy-out where the public interest test applies, and where it is appropriate to do so. Our proposals will complement existing community right to buy mechanisms".

These commitments, together with the Scottish Land Commission's recommendations, provide the starting point for this consultation seeking views on proposals for the next Land Reform Bill.

As well as meeting the objectives set out in the Land Rights and Responsibilities Statement, we must take every opportunity to bring about a just transition to net zero, and tackle the biodiversity crisis. Land has a fundamental role to play in how we respond to the climate crisis and biodiversity crisis. Its potential to contribute to our national priorities of a just transition to net zero, and to nature restoration, can hardly be overstated. Central to the 'just transition' concept is that communities and the wider public must be supported in the transition. An important aspect of this is ensuring that communities can benefit from investment in Scotland's natural capital, whether directly through ownership, or through engagement and co-operation with landowners. Actions taken in pursuit of tackling climate change and increasing biodiversity must not have the effect of displacing people from the land.

Much of the discussion of land reform has focussed on Community ownership which has an important role to play in bringing about a greater diversity of landownership, as well as in making sure that the benefits of landownership are shared fairly. The Scottish Government has given, and continues to give, substantial support to programmes aimed at building the capacity of communities to take on the land and assets they need to thrive. We do this through a wide range of programmes administered by the Scottish Government, its agencies, third sector partners and local authorities. Many communities have been supported by our Scottish Land Fund, which provides grants, both to help identify community needs and to contribute to the purchase of assets. Community ownership is one option, but a range of other formal and informal partnerships can also bring benefit to communities. It is for communities to decide what approach best suits their aspirations: our aim is to open up the opportunities available to them.

This Bill will focus on land ownership and use in rural Scotland. We recognise that there are of course many land-related issues in urban parts of the country. We see opportunities to address some of these in our forthcoming Community Wealth Building Bill.

New measures in the Bill will of course be fully compatible with human rights legislation and within devolved powers.

Subject to the views expressed in response to this consultation, this bill will:

• Strengthen the Land Rights and Responsibilities Statement;
• Introduce compulsory management plans;
• Ensure the public interest is considered on transfers of large-scale landholdings;
• Introduce new requirements to access public funding for land-based activity;
• Introduce a new Land Use Tenancy;
• Modernise small landholders legislation;
• Increase transparency in relation to land ownership and land use.

The Scottish Government also wants to use the development of this Bill to consider wider issues emerging from the growth in natural capital markets. This consultation therefore opens questions of potential fiscal measures and community benefit. Subject to the responses, proposals could be included in this legislation, although different procedures apply to the passage of any new taxation measures.

This Bill will also modernise small holding legislation as part of our programme of land reform.

This area of legislation is complex, has not been altered since the early 20^th Century and relates to a small number of individual holdings mostly clustered in specific parts of Scotland. We will be undertaking a separate public consultation with the group of individuals and stakeholders affected by proposed changes; this will form part of the consultation process for the Land Reform Bill, though it is not part of the main Bill consultation.

Issues around the reform of compulsory purchase orders will be taken forward in the Community Wealth Building Bill later in this Parliament.