The land of Scotland and the common good: report

Section 3 - Recent Land Reform

1 Land reform programmes have taken place in many different countries in many different ways over recent centuries, with the purposes of the reforms defined to match the circumstances. A prominent 20th century example has been the agrarian changes in African, Asian and Latin American countries since the 1950s, when the United Nations ( UN) made land reform a condition of development aid. The UN's traditional definition from that time is that land reform is " an integrated programme of measures to eliminate obstacles to economic and social development arising out of defects in agrarian structure". ^[1]

2 Another prominent example of 20th century land reform has been the restitution and privatisation of property in Eastern European countries since the collapse of the Soviet Union. These changes might be considered closer to the World Bank's view in the 1970s that " land reform is concerned with changing the institutional structure governing man's relationship with the land". ^[2]

3 Scotland has had its own history of land reform in previous centuries. However, the recent history of land reform in Scotland can be considered to have started with the work of the Scottish Office's Land Reform Policy Group ( LRPG). This was set up in 1997 to develop recommendations for land reform measures that could be implemented by the new Scottish Parliament once it was established. The LRPG, which was chaired by Scottish Office Minister Lord Sewel, carried out public consultations on land reform issues and potential solutions, before publishing its final recommendations for land reform measures in January 1999.

4 The Government's decision to set up the LRPG reflected widespread recognition that many aspects of Scotland's system of land ownership needed to be modernised, as symbolised by the survival of feudal tenure, as the main form of land ownership. This out of date position resulted, in significant part, from the limited opportunities for legislation at Westminster for updating Scots property law, and also from the potential influence of the House of Lords on measures that might be brought forward. The new Scottish Parliament, with devolved responsibility for Scots law, was seen as offering the opportunity to achieve overdue changes and introduce new land reform measures.

5 At the start of its work, the LRPG stated that " the objective of land reform is to remove the land-based barriers to the sustainable development of rural communities". ^[3] This statement, with its reference to 'barriers' and its 'rural' focus, echoes the UN definition of land reform ('obstacles', 'agrarian'). However, the LRPG took a much more holistic approach. The LRPG's final report proposed a wide ranging programme of land reform measures, with their recommendations grouped under seven headings:

A. Law reform legislation

B. Land reform legislation

C. Legislation on countryside and natural heritage issues

D. Agricultural holdings legislation

E. Crofting legislation

F. Action without legislation

G. Issues for further study

6 The LRPG's final recommendations were published in January 1999 and adopted by the new Scottish Executive as its land reform programme, when it took office in July 1999. The Executive published its Land Reform Action Plan in August and, in November 1999, there was the first debate on land reform in the Scottish Parliament. Then, in 2000, the new Parliament enacted the Abolition of Feudal Tenure etc. (Scotland) Act as one of the Parliament's first pieces of legislation. The Scottish Executive also continued to produce updated Land Reform Action Plans and further LRPG recommendations were implemented through legislation during the first session of the Parliament 1999-2003, including the Land Reform (Scotland) Act 2003.

7 In that first session, assisted by the preparatory work of the LRPG, the Scottish Parliament made impressive progress with land reform measures to start modernising Scotland's system of land tenure. The particular focus on land reform in that session has not been equalled since. The Scottish Parliament has however continued, in its three sessions since 2003, to pass legislation that involves land reform measures.

8 As part of this inquiry, the Review Group carried out a quick and indicative survey of the Acts of the Scottish Parliament to obtain an impression of the number of Acts passed which have included what might be considered land reform measures to a greater or lesser degree. For this, the Group defined land reform measures as provisions in an Act that reformed or modernised the rights of land ownership in Scotland, whether through property law or regulatory law. The Group did this analysis in August 2013, by which time 205 Acts of the Parliament had received Royal Assent. The Group considered that approximately 38 Acts contained some land reform provisions. These 38 Acts were also spread across the Parliament's sessions to date. ^[4] The Group considered that approximately equal numbers of these Acts had land reform provision to a greater and to a lesser degree (see Annex 4).

9 While the total number of Acts identified by the Group in its survey was approaching 20% of all the Acts passed by the Parliament, numbers of Acts do not convey the scale or significance of Acts. However, it is clear that legislation to modernise and reform aspects of Scotland's system of land ownership and use has continued to be a significant part of the business of the Scottish Parliament since it started. This process is also due to continue with, for example, the current Community Empowerment (Scotland) Bill and the further agricultural holdings legislation scheduled in the current session of the Parliament.

10 In Scotland, land reform as defined in this Report should be an ongoing process addressing many different public policy objectives. This should be part of continuously updating and improving the many different aspects of Scotland's system of land tenure, so that it better delivers the public interest.

11 The first session of the Scottish Parliament had a land reform programme established by the Scottish Executive. In contrast, since 2003, there has been no land reform programme. The land reform measures after 2003 have therefore tended to be specific responses to particular issues, rather than part of any wider land reform strategy or programme. Many of the measures were not generally seen as 'land reform' as such. This has resulted in a sense of loss of momentum in taking forward the type of broad, modernising land reform agenda covered by the LRPG's recommendations. ^[5] However, as Lord Sewel wrote in that Group's final report:

" It is crucial that we regard land reform not as a once-for-all issue but as an ongoing process. The parliament will be able to test how this early legislation works and how it effects change. They will then have the opportunity to revisit and refine their initial achievement.....These present recommendations are therefore by no means the final word on land reform; they are a platform upon which we can build for the future". ^[6]

12 Lord Sewel refers to a platform to build on, this Group's remit states that " The various strands of land reform that exist in Scotland provide a firm foundation for further developments" (see Annex 1). The Group also considers that the support in the Scottish Parliament on all sides for further land reform measures in the debate on land reform on 5th June 2013 reflects a wider recognition in Scotland that land reform is needed.

13 There was also a further clear indication that land reform measures are considered to be necessary a month after the Scottish Parliament's debate, when the House of Commons Scottish Affairs Committee launched an open consultation in July 2013 on 'A programme of comprehensive land reform in Scotland'. ^[7] We wrote to the Committee welcoming their inquiry for the contribution that it can make to what those reforms to the ownership and use of Scotland's land should be. The Committee has since published an Interim Report, which we refer to later in this Report.

14 The evidence we gathered as part of our review clearly demonstrates that there are still issues to be addressed and opportunities to be developed in reforming Scotland's system of land ownership. In this Report, we set out our review of the current position.