Land reform in a Net Zero Nation: consultation paper

Part 5: Strengthening the Land Rights and Responsibilities Statement

The Land Rights and Responsibilities Statement

Part 1 of the 2016 Land Reform Act placed a requirement on Scottish Ministers to publish a statement on land rights and responsibilities.

The Land Rights and Responsibilities Statement (LRRS) was published in 2017, consisting of a vision and six principles. The Statement is also supported by advisory notes, case study examples, and a series of good practice protocols developed more recently by the Scottish Land Commission (SLC).

The aims of the LRRS are to:

• inform the development of Scottish Government policy in relation to land;
• encourage and support others with significant responsibilities over land, such as local authorities and large private landowners, to consider how their decision-making powers could contribute to realising the vision in the Statement; and
• encourage all of us to recognise our responsibilities as well as our rights in relation to land.

The LRRS, and its associated advisory notes and protocols, is currently voluntary. It relies on landowners and land managers engaging with it.

The SLC's series of protocols provide practical advice on how landowners, land managers and communities can work together to make better and fairer decisions about land use. The protocols were developed in conjunction with key stakeholders, including the SLC's Good Practice Advisory Group. This Group identifies and discusses good practice that may help support the implementation and promotion of the LRRS.

Through the Good Practice Programme in 2019-2020 the SLC provided support to over 150 landowners and communities to help them put the protocols into practice in both rural and urban Scotland. Participants included private landowners, public bodies, community landowners, environmental non-government organisations and faith organisations.

The LRRS is subject to a review process by the Scottish Government every five years. A consultation on the first review was launched on 5 November 2021 and closed on 28 January 2022. The review is due to be completed by September 2022, by which date Scottish Ministers must lay before the Scottish Parliament either their proposals for amendment, or their reasons for not making any changes to the LRRS. When asked for suggestions that could further the adoption of the LRRS, a number of respondents expressed the view that there was a need for Scottish Ministers to have more power of oversight in relation to compliance with the LRRS.

What we propose

The Good Practice Advisory Group is successfully promoting the LRRS, however, the voluntary approach does have limitations. We recognise that many landowners are abiding by the LRRS, but there are some landowners who are not, despite the clear public interest the LRRS provides.

We propose 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. This would be accompanied by a statutory process to adjudicate on complaints about non-compliance and the response to a breach. It would be underpinned by statutory Codes of Practice/protocols on relevant issues, similar to the model of the Tenant Farming Commissioner Codes of Practice. There would be an ability for defined parties to report potential breaches of the codes/protocols and for a Commissioner to investigate and report publicly on their findings. We do not envisage members of the general public being able to report breaches of the LRRS: "defined parties" would be limited to constituted organisations with one of the following remits: community, charitable or public service. They would also have to have a connection to the local area.

Where an investigation into a breach is conducted, we propose that there could be one or more of the following outcomes:

• 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
• The outcome could be taken into account in any subsequent public interest test

In terms of enforcement powers, this could include:

• Financial penalties
• 'Cross-compliance' penalties (considered in more detail in Part 8): this would mean that an owner found to be in breach of the LRRS and any of its associated codes/protocols could be prevented from accessing Scottish Government land-based subsidies

Why we are proposing this

We would like to see the demonstrable benefits that have come about through the LRRS protocols, and the work of the Good Practice Advisory Group to be universal. A requirement on large-scale landowners to comply with the LRRS would provide benefits to Scotland on a number of levels. On a national level, it would contribute to our 'Just Transition to net zero' mission. On a local level, it would contribute to our approach to Community Wealth Building, and improve relationships between landowners and communities. It could also provide economic benefits at both national and local level.

Compliance with the LRRS would provide assurance to the public and to government that landowners are playing their part in delivering government policy objectives for net zero, biodiversity and a just transition, whilst also abiding by other codes, such as the Tenant Farming Code.

Questions

Q4. 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

Please give some reasons for your answer:

Q5. 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.

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

Agree / Disagree / Don't know

Please give some reasons for your answer:

b) 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

Should these constituted organisations have a remit on:

• Community Agree / Disagree / Don't know
• Charity Agree / Disagree / Don't know
• Public service Agree / Disagree / Don't know

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

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

• the Scottish Government Yes / No / Don't know
• a public body (such as the Scottish Land Commission)

Yes / No / Don't know

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

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

• Recommendation for a mediation process Yes / No / Don't know
• Recommendation on how the landowner or governing body could comply with the Codes of Practice/protocols Yes / No / Don't know
• A direction to the landowner or governing body to implement changes to operational and/or management practices Yes / No / Don't know

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

e) Should the enforcement powers for a breach be:

• Financial penalties Yes / No / Don't know
• 'Cross-compliance' penalties Yes / No / Don't know

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

Q6. 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

Please give some reasons for your answer:

Q7. 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?