The land of Scotland and the common good: report

Section 2 - People of Scotland

1 In this Report, the people of Scotland are considered to be everyone living in Scotland at any time. This was a population of 5.2 million at the last census in 2011. This is an average population density of 64 persons per square kilometre. However, 82% of the population live in urban areas covering approximately 6% of Scotland's land area, with 18% or nearly a million people living in the rural areas that account for 94% of Scotland's land area, including 118 inhabited islands. ^[1] The general distribution of Scotland's population is shown in Fig. 2.

2 The people of Scotland are democratically represented by elected representatives in three legislatures, the Scottish, UK and European Parliaments. The highest number of representatives is in the Scottish Parliament, which is also the most important in the context of land reform. Responsibility for Scotland's laws of land ownership is devolved to the Scottish Parliament, while the Scottish Parliament and Scottish Government are also largely responsible for most aspects of the regulatory laws and non-statutory measures that make up the other two components of Scotland's system of land tenure.

3 The Scottish Parliament, with its powers and responsibilities, is taken in this Report as representing the public interest of the people of Scotland in land and land reform. However, the significance of legislation in the other Parliaments should not be underestimated in a land reform context. The UK Parliament, for example, still has control of the management of some of Scotland's most important Crown property rights and also of taxation at a UK level related to land and property. European measures are also very important factors, although generally more concerned with the regulation and support of land use than with Scotland's system of property laws and land ownership.

4 The responsibility for determining the public interest of the people of Scotland rests with their elected representatives. The nature of that public interest in any situation has to be defined by the particular circumstances. The recent Court of Session case involving Pairc Estate illustrated this. ^[2] This case was brought by the Estate owner and concerned the intended purchase of the Estate by the local crofting community under Part 3 of the Land Reform (Scotland) Act 2003. As part of the findings, the Court decided that the lack of a definition of the 'public interest' in the Act was not a problem, because the public interest can only be determined in the specific circumstances of each case, and that it is the job of Scottish Ministers through their democratic position to decide what they judge to be the public interest in each instance.

5 In such cases, there is a balance to be struck between the public interest and the private interest. At a wider level, the public interest is determined by a balance of public and private interests. This balance of interests occurs throughout Scotland's system of land tenure, including the importance in the public interest of the private ownership of land. The balance to be struck is governed by Article 1 of the European Human Rights Convention ( ECHR) First Protocol, which both provides for the protection of a land owner's enjoyment of their property and makes clear that the owner's private interest gives way to the public interest. The issue in particular situations is whether the public interest case is judged sufficient to over-ride the interests of private land owners.

6 The public interest of the people of Scotland, as described above, is determined by elected representatives at a particular time in a specific context. The Review Group uses the public interest in this sense in this Report, including when the Group makes specific proposals for reforms which the Group considers would be 'in the public interest'. However, decisions about the public interest in different contexts have to be based on an overall goal at which they are all aiming. In this Report, the Group uses 'the common good of the people of Scotland' to represent the goal to which the public interest aspires.

7 The 'common good' is an ancient concept and one with a very long tradition in Scotland. An example of its use in land tenure in Scotland is the common good lands held by Scotland's former burghs for the common good of their inhabitants and which are now managed by Scotland's local authorities. The Common Good Act 1491 remains in force in Scots law as part of the current legislation governing these common lands, which are discussed later in Section 14 of this Report.

8 The idea of promoting the common good of people in an area is readily understood at the overall level of promoting the wellbeing of all the people in the area. The common good is, in these terms, that which benefits society as a whole. The purpose of the Scottish Government's Land Use Strategy ( LUS) for Scotland, for example, is "to promote the wellbeing of the nation". ^[3] The Review Group considers that, similarly, the purpose of Scotland's system of land tenure should be to promote the common good of the people of Scotland. Thus, the land reform measures proposed in this Report are measures intended to modify or change the arrangements governing the possession and use of land in Scotland in order to promote the common good of the people of Scotland.

9 In using the concept of the common good in this land tenure review to represent the wellbeing of all, the Group recognises that the common good encompasses a number of other important related aims. One of these is that the common good depends on democracy. This is not only democracy in terms of elected representatives, but the fuller senses of participatory democracy and active citizenship. This is also associated with the recognised constitutional principle in Scotland of the sovereignty of the people and the longstanding description of the Crown in Scotland as representing 'the community of the realm'. ^[4]

10 Three other aims which the Group considers to be central parts of the common good are environmental sustainability, including its intergenerational and international dimensions; economic success with its role in delivering the common good; and social justice with its principles of fairness and equality of opportunities. These aims are represented in the opening statement of the Group's remit ( Annex 1) that " the relationship between the land and people of Scotland is fundamental to the wellbeing, economic success, environmental sustainability and social justice of the country".

11 The other aim which the Group considers a central component of the common good in this Report, is human rights. The traditional focus in discussions in Scotland about human rights and land reform has been the balance to be struck between private property rights and the public interest under Article 1 of the European Convention on Human Rights ( ECHR) First Protocol, as in the example in paragraphs 4-5 above. However, as the work of the Scottish Human Rights Commission ( SHRC) demonstrates, the relationship between human rights and land in Scotland is not only about the principle in that Protocol. The SHRC was established by the Scottish Parliament in 2006 and works, both in Scotland and internationally, as part of the network of national human rights commissions in other countries, under the overall auspices of the United Nations. ^[5]

12 During the period of the Group's inquiry, the SHRC published Scotland's first human rights National Action Plan and in this the SHRC identifies that issues over the ownership and use of land can be important factors in delivering some human rights commitments. ^[6] The availability of housing of an appropriate standard to provide sufficient homes for the people living in Scotland is a prominent example. The SHRC also highlights, in addition to the ECHR, the importance of the UN Covenant on Economic, Social and Cultural Rights. This recognises, under Article 11, the right of everyone to an adequate standard of living, including adequate food, clothing and housing and to the continuous improvement of living conditions.

13 This right to the continuous improvement of living conditions reflects that it is the duty of states to achieve a progressive realisation of the human rights of their people and to provide a framework that will oversee that progression. In this Report, the Group reviews Scotland's system of land tenure as one part of that framework.