The land of Scotland and the common good: report

Section 33 - Land Reform, Common Good and the Public Interest

5 The term 'common good' describes a comprehensive and complex concept which brings into its embrace questions of social justice, human rights, democracy, citizenship, stewardship and economic development. These are all terms which have expansive, ambitious horizons. Yet each of them can be interpreted in a narrow way which limits its value. The Review Group considers that bringing them together under the common good helps to point towards outcomes that are healthy, rounded and robust.

6 Social justice has at its heart notions of fairness and equality, values clearly reflected in the Scottish Government's remit for the Land Reform Review. Human rights have traditionally been a prominent part of the land reform discourse, with the UN Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights (Protocol 1, Article1) providing a framework which seeks to balance the right of the population to an adequate standard of living, with the right of the individual to the peaceful enjoyment of his or her possessions. A respect for democracy (and democratic accountability) is also a key component of the common good, as is the concept of citizenship - active citizens pursuing not just their own ambitions, but also goals that are for the good of society as a whole.

7 Social justice, human rights, democracy and citizenship can apply to various aspects of society, but when they apply to land, special conditions obtain. Land is a resource not just for the present generation, but also generations to come. It is also home to other species. Care of the land therefore calls for a strong sense of stewardship. Finally, successful economic development is also a critical element of the common good: the way in which land is used to generate economic activity and sustainable livelihoods is, and will be, crucial to an economically successful Scotland.

8 The Review Group therefore regards the common good as the general outcome which informs and drives land reform. It has guided decisions about which recommendations the Group should support, without the suggestion that any single action will realize the common good.

9 The public interest, however, is something which is politically identified at any one point in time. Typically, Ministers, or other elected political representatives, base decisions on what they consider to be in the public interest. They will identify the public interest with reference to policies they believe they have been mandated to implement. Once made, these decisions are subject to public accountability through normal democratic processes.

10 The Review Group's recommendations are reforms in the public interest which promote the common good. These are listed in the following section. The merit of each recommendation can be considered in terms of the particular issue it is intended to address. However it is important that these issues and recommendations are also seen within the context of Scotland's overall system of land ownership. Many of these involve similar land related issues and regarded collectively, they highlight several key ways in which the system of ownership in Scotland needs to be reformed.

11 While the general approach to land reform taken in this Report involves consideration of the common good, the Review Group has also taken account of the particular outcomes identified in our remit. These have informed the topics identified and explored, and the recommendations made.. In particular the outcomes of 'stronger, more resilient and independent communities', 'the diversification of the pattern of ownership in Scotland' and 'the development of new relationships between land, people, economy and environment' (see Annex 1) have all figured strongly within our deliberations.

12 In considering land issues in Scotland the Review Group is conscious of the continuing importance of international issues relating to the control and use of land. In many of the world's developing countries there is increasing pressure on scarce land resources, and there is growing evidence of 'land grabs' by powerful corporate interests to the detriment of local communities and indigenous peoples. One major response to these concerns has been the publishing of FAO Guidelines on Land Tenure and the emergence of the International Land Coalition, whose aim Michael Taylor describes as 'people centred land governance'. ^[1] The Review Group considers that people centred land governance should be an underpinning principle which informs the future approach to land reform in Scotland.

A Land Reform Programme

13 Land is a crucial, finite resource which is one of the defining features of Scotland as a country. In Section 24 of the Report, the Review Group draws attention to the need for a much clearer and more integrated approach to the underlying issues with Scotland's system of land ownership, and stresses the need for a National Land Policy to focus on land itself.

14 The Review Group also considers that a key part of implementing a National Land Policy should be an integrated programme of land reform measures to modernise and reform Scotland's system of land ownership. At present the Scottish Government has no integrated approach to land reform and Scotland has not had a land reform programme for 10 years. The Group considers that the kind of changes needed to modernise and reform Scotland's system of land ownership require the kind of policy coherence delivered through the first Scottish Executive's Land Reform Action Plan. A new land reform programme of this nature would incorporate a range of measures, on different topics, and at different stages of development. The Group considers that the diversity of the recommendations within this Report clearly illustrate the need for Scotland to take a more focused and integrated approach to land reform.

15 The Review Group considers that significant changes are required to make Scotland's system of land ownership a more efficient and effective system for delivering the public interest. The Group recommends that the Scottish Government should have an integrated programme of land reform measures to take forward the changes required to modernise and reform Scotland's system of land ownership.

Land Commission

16 The extent of our remit, and the influence of land in so many aspects of the lives of the people of Scotland, meant that the Review Group was unable to examine sufficiently all the ideas which emanated from various sources from submissions to our call for evidence, from the Group's advisers and from the Group members themselves. Among these were a proposal for a residency requirement for larger land owners, a requirement for development and land use plans as an integral part of the acquisition of large estates, and a proposal for prospective purchasers of larger areas of land to be assessed against selected 'sustainability test criteria' (as potentially emanating from the Land Use Strategy, or proposed by other land commentators). ^[2] There were also proposals to transfer Government owned land to an independent charitable trust with the aim of putting it to more productive use in the public interest, and transferring public land to community bodies to own, manage and develop for local benefit.

17 These proposals, and other land reform ideas, must await a future opportunity to be examined, but they illustrate that this Report should not be seen as the final statement on land reform in Scotland. The Review Group considers that many issues remain to be addressed, and that Scotland's system of land ownership should be regarded as still in transition. This critical point was made previously by Lord Sewel, Chair of the Land Reform Policy Group, who in 1999, stated " It is crucial that we regard land reform not as a once-for-all issue but as an ongoing process". ^[3] The Review Group supports this statement and considers that an ongoing, sustained approach is needed to achieve the necessary modernisation and reform of Scotland's system of land ownership. It is equally important that this approach should be coherent and well informed.

18 Given the importance of Scotland's land to the country's future, the Review Group believes that there should be a single body with responsibility for understanding and monitoring the system governing the ownership and management of Scotland's land, and recommending changes in the public interest, where required. This single body is referred to here as the Scottish Land and Property Commission ( SLPC), with 'and Property' included to emphasise that such a commission would be concerned with 'land' in its full meaning in Scots property law, not simply with land in a rural sense.

19 The SLPC would provide a single, overall and integrated focus on the different aspects of Scotland's system of land ownership, including land information, property law, land use, fiscal measures and land markets. It should have the expertise to provide a central overview that links social, environmental and economic public policies with the legal and technical aspects of Scotland's system of land ownership. The SLPC would be distinct from existing specialist bodies such as the Lands Tribunal for Scotland, or the Scottish Land Court, and would be different from that of the Scottish Law Commission ( SLC), with its legal expertise and specialist role in updating and improving the law of Scotland.

20 The Review Group considers that the SPLC should operate within the framework of the proposed National Land Policy. It would have agreed programmes of work, with the balance of expertise amongst commissioners evolving to reflect current priorities and programmes. In designing such a Commission, the Group believes Scotland could draw significantly from the widespread international experience of land commissions, which exist as part of institutional arrangements within national land policies. ^[4]

21 The Review Group considers that there is a need for a single body with responsibility for understanding and monitoring the system governing the ownership and management of Scotland's land, and recommending changes in the public interest. The Group recommends that the Scottish Government should establish a Scottish Land and Property Commission.

Final Remarks

22 As the Report illustrates, there is no single measure, or 'silver bullet', which would modernise land ownership patterns in Scotland and deliver land reform measures which would better serve the public interest. Within the constraints of the review process, the Group has examined as wide a range of land reform topics as was possible, and made over 60 recommendations. Some of these recommendations amend existing policies and legislation, while others will require to be the subject of new legislation. Some recommendations can be implemented relatively quickly, while others are more medium term in nature, requiring further testing and consideration.

23 In addition to making specific recommendations, the Report offers a particular approach to future decisions about the possession and use of land in Scotland. This approach is orientated towards serving the common good, and can be encapsulated within the phrase people centred land governance. If this approach was to be embedded in future policy developments relating to land, the Group would regard this as a fitting legacy for the Review.

24 The Group recognises that this is a critical time for the future of Scotland. Along with the people of Scotland, land is the most important resource in the nation. How it is owned, managed and used is of fundamental importance to Scotland's future prospects, whatever constitutional direction the country chooses. The Group believes that we have reached a critical point in relation to land issues. We offer the Scottish Government, a range of recommendations, summarised in Section 34, and we encourage it to be radical in its thinking and bold in its action. The prize to the nation will be significant.