Review of the Land Rights and Responsibilities Statement: analysis of consultation responses

Implementation and awareness

The consultation paper explains that, in 2019, the SLC launched its Good Practice Programme to encourage good behaviour, culture and practice with straightforward and practical advice on the Land Rights and Responsibilities Statement. Adherence to the Statement is voluntary.

The SLC produced 35 case studies and a range of guidance and toolkits to further support the sharing and implementation of good practice across a wide range of subjects. As part of a pilot project, 23 landowners have completed a Land Rights and Responsibilities self-assessment, identifying areas of good practice and actions for development.

Measuring and reporting on progress

Question 5 – Do you have any proposals as to how to measure change as a result of implementation of the Statement, including suggestions for indicators of progress? Please provide details.

Measuring change

Some of the comments addressed the basic principles that should underpin any approach to measuring change. A general observation, from a 'Government and NDPB' respondent, was that different measurement frameworks will be required to track and quantify strategic outcomes compared to more operational ones. They went on to caution that, as the Statement is voluntary and as there is no mechanism to monitor its implementation, attributing change to the Statement may be problematic.

The importance of recognising that some land management and community regeneration projects can take decades was also highlighted. The 'Private landowners and their representative bodies' respondent raising this issue went on to suggest that it will be important to allow land managers sufficient time to have a fair chance at delivering any required outcomes.

Other comments and suggestions included that the approach should be underpinned by:

• Clearly defined public standards, with progress and change then measured against these standards. A similar suggestion was the development of priorities to support the principles.
• Success focused outcomes, both national and local, including environmental, economic and community outcomes. A connected suggestion was that these outcomes could be modelling on the approach used in the National Planning Framework.

A 'Community organisations and their representative bodies' respondent made a connection with the forthcoming Land Reform Bill. They noted that it will contain proposals for a Public Interest Test on significant land transfers and, perhaps, for statutory reviews of existing landholdings. They went on to suggest that the approach used for the Statement – such as by using a suite of indicators – should form part of the basis for the exercise of a Public Interest Test.

There were also a range of practical suggestions relating to how measuring change should be taken forward. They included that:

• Mapping land in Scotland, to show its use and make its ownership and occupancy transparent, will be required. It was suggested that such an exercise will be key to developing the baseline against which change can be measured.
• Gathering data on selected case studies in order to show how implementation of the Statement can lead to positive social and environmental outcomes. It was suggested that the SLC could carry out or instruct this data collection in coordination with their Good Practice Programme.
• Recording the activities of the SLC – for example contacts by geographic area, reason for contact, support given etc. – could be useful.
• There should be a mechanism for reporting and recording bad practice.

Other suggestions focused on how different stakeholders could or should be involved and/or the requirements that should be placed on them. They included that:

• Bringing key indicators together for a regular 'stock-take' of progress with stakeholders would be beneficial and help to identify how those stakeholders can collectively further the Statement.
• Specifically, there should be engagement with major landowners and their representative bodies to look at lessons learned and the development of guidance for other stakeholders.
• Landowners or managers should have to provide engagement and consultation plans to SLC prior to land sales and land use changes.
• There should be a requirement for public consultation on management plans and land use decisions.
• It will be important to make connections to landowners who have not yet been involved in the SLC's Good Practice Programme. It was suggested that the Land Rights and Responsibilities self-assessment should become mandatory for all landowners and those with land rights.

However, a 'National non-governmental organisations' respondent referred to work they have carried out recently with the SLC; this was a farmer cohort review of the Statement principles and self-assessment against these. They went on to report that their members feel that the current self-assessment format is not workable for them. Their members concerns centred on the level of detail requested, time taken to complete the assessment, and duplication of information already provided elsewhere. The respondent went on to suggest that, if self-assessment is to be considered, it must be workable but that there may be other means of monitoring and measuring change which do not place any onerous requirement on land managers.

Indicators of progress

General comments about indicators of progress included that they:

• Should be clear and concise.
• Should be SMART.^[4]
• Should be kept in place for a reasonable period, to reflect the reality that change can take time.
• Could draw on the National Performance Framework Indicators, for example the indicator on community ownership. A similar suggestion was to draw on the indictors set out in the Scottish Biodiversity Strategy.
• Could be informed by the call for case studies and examples from land managers.

Specific suggestions for possible indicators of progress often related to land ownership, or the transfer of ownership. These included:

• How many people own or lease how much land, and land ownership concentration, private and public.
• Recent land transactions from Registers of Scotland. This could look at trends in community ownership and diversity of ownership. Specifically, community right to buy applications and approvals.
• The number of community groups owning or leasing land.
• The average size of land owned for land parcels greater than a hectare.

Other possible indicators proposed were:

• Community involvement in governance.
• Referring back to the defined public standards (above), the amount of land meeting the standards set.
• How land use changes support improved economic prospects.
• Community benefit contributions.
• Condition of the historic environment.
• Public access provision.
• Access to growing space, community gardens or allotments.
• The amount of community owned wind farm power being generated.
• Improved hedge or dyke meterage against time.
• Perceptions of the local area.
• Number of complaints.

Information sources

In terms of existing information sources that could be used to support the measurement of change, respondents highlighted the following:

• The annual Scottish Vacant and Derelict Land Survey.
• The Scottish Government's annual Community Ownership in Scotland statistics; it was suggested that these could be extended to cover community leases and use.

Question 6 – Do you think that there is a need for regular reporting on implementation of the principles of the Statement?

Responses by respondent type are set out in Table 9 below.

Table 9

Question 6 – Do you think that there is a need for regular reporting on implementation of the Principles of the Statement?
	Yes	No	Not Answered	Total
Organisations:
Community organisations and their representative bodies	5			5
Government and NDPB	5		2	7
National non-governmental organisations	8		1	9
Private landowners and their representative bodies	4	1		5
Total organisations	22	1	3	26
% of organisations answering	96%	4%
Individuals	21	5	3	29
% of individuals answering	81%	19%
All respondents	43	6	6	55
% of all respondents	78%	11%	11%
% of all those answering	88%	12%

A majority of respondents – 88% of those answering the question – thought that there is a need for regular reporting on implementation of the principles of the Statement.

Question 7 – If you think that there is a need for regular reporting, how do you think this should be done and by whom?

Forty-four respondents commented at Question 7. Of these, 39 respondents thought that there is a need for regular reporting, four did not and one did not answer Question 6.

Reasons given for thinking there is a need for regular reporting included that the limited monitoring and reporting requirements currently in place restricts our understanding of the impact of the Statement, levels of implementation and progress towards achieving the vision. It was suggested that enhanced requirements would improve accountability and transparency in land ownership and management and thereby strengthen implementation of the Statement.

A number of the comments addressed either the type of organisation, or the specific organisation, which should take responsibility for reporting. In terms of the type of organisation, there were suggestions that it should be independent and have the capacity to operate in urban as well as rural settings.

The most frequently made suggestion was that the SLC should take the lead. Further comments included that the SLC is naturally well-positioned to report on implementation. A 'National non-governmental organisations' respondent commented that the additional resource implication of a new reporting function should be taken into account by the Scottish Government in the event of deciding to task the agency with such a responsibility.

Other suggestions for where responsibility for reporting could lie were:

• Scottish Ministers: it was suggested that, as the Statement is intended to inform the development of Government policy and action in relation to land, it is reasonable to expect that the Scottish Government should report at regular intervals on how the Statement is fulfilling that function. One suggestion was that the SLC could report to Scottish Ministers or that reporting could be co-ordinated by SLC on behalf of Scottish Ministers.
• Audit Scotland: it was suggested they be given the powers to hold the Government accountable.
• Landowners: a specific suggestion was that Scottish Tenant Farmers Association and National Farmers Union Scotland members could report on a case-by-case basis.

In terms of the type and frequency of reporting, suggestions included:

• Annual or biannual reporting, which if undertaken by the SLC could form part of their Good Practice Programme. It was suggested that in-depth annual progress reports could usefully: draw attention to emerging examples of impact in practice; highlight areas in which principles are seen to be lacking in influence on delivery; and provide practical recommendations for the Scottish Government.
• Reporting on how the macro-level principles (Principles 1 - 3) are informing policy development and action. It was suggested that either a three-year or five-year cycle could be appropriate. A connected point was that the regular five-year review of the Statement by Scottish Government is a good opportunity to review relevant indicators and stakeholder feedback on progress.
• The production of activity reports, similar to those currently produced by the Tenant Farming Commissioner.

There were also comments relating to self-assessment by landowners; there were occasional references to this being either made mandatory or, more frequently, voluntary. Other comments included that reporting via the SLC's Good Practice Programme self-assessment should be rolled out more widely to provide a greater breadth of reporting and a more complete picture of areas of good practice and actions for development. Connected comments were that:

• The SLC's pilot on the self-assessment approach will most likely provide helpful insights regarding the implementation of such an approach. A 'Government and NDPB' respondent reported that the findings from the pilot will be published in 2022. However, in the meantime, a 'Private landowners and their representative bodies' respondent involved in the pilot was looking for an approach based on a shorter form with simple, open ended questions that sets a positive tone and encourages and shares information about best practice.
• A similar approach to that taken for Fair Work could be adopted, where landowners undertake a self-assessment designed to encourage reflective thinking and best practice.
• Public bodies could be encouraged to demonstrate leadership in regularly preparing and reporting on an action plan and progress.
• A light touch introduction may be the best way forward to allow less well-resourced landowners (private, public and community) to participate.
• Self-assessment could be supported by accreditation schemes, if appetite for such schemes exists.

Other comments and suggestions included that the update of the Land Use Strategy, and the roll-out of Regional Land Use Partnerships, may give a regional perspective on how the Statement is being used in different parts of Scotland.

Although the majority of respondents thought there was a need for regular reporting, a 'National non-governmental organisations' respondent who did not think there was such a need suggested instead that the Scottish Government must do more work to understand the benefits to land managers of any reporting process. They suggested that, until the benefits are more clearly understood and accepted, land managers will struggle to engage further.

Call for case studies

In the current Statement, each principle is demonstrated through a case study and the Scottish Government wants to ensure that the examples included are as representative as possible. They are seeking examples that demonstrate effective implementation of the principles, or ways in which sector representatives have encouraged adoption of the statement. They plan to compile a selection of case studies for publication as part of any revisions to the Statement and include others in a case study library to provide further examples of effective implementation.

Question 8 – If you would like to submit a case study, please provide details of a specific example. You may submit more than one case study.

Seventeen respondents made possible case study suggestions, with the number of case studies suggested by each of those respondents ranging from one up to seven. Three 'Individual' respondents referred to their own experience or the experience of someone they knew.

In addition, five organisations noted that they could be contacted about possible case studies.

There were a small number of other case study-related comments. These included:

• A 'Community organisation and their representative bodies' respondent noting that they aim to work with the SLC around providing case studies.
• That the inclusion of island-focused case studies is welcome.

There was also a view, however, that the case study approach has limited value as a formal part of the Statement as they are essentially practice rather than policy matters. It was suggested that the SLC would be best placed to keep an up-to-date resource of accessible case studies as part of their Good Practice work.

Structure of the document

The Advisory Notes are intended to expand on the principles and set them in context. The context in Scotland has changed significantly since the last Statement, and the Advisory Notes may need updating.

Question 9 – Are there any changes that should be made to the Advisory Notes to make it more clear, relevant or reflective of current context? If your comment relates to a specific principle please flag which one.

Twenty-two respondents commented at Question 9.

General comments about the current Advisory Notes included that they are now outdated, and are no longer fit-for-purpose. It was also noted that they do not reflect the protocols and guidance produced by the SLC or recent policy developments. This latter issue was raised especially in connection to climate mitigation and biodiversity recovery, and reflected comments at earlier questions about greater emphasis being placed on addressing the climate emergency, enhancing and protecting natural capital and improving biodiversity.

A fundamental concern, raised by a 'Private landowners and their representative bodies' respondent, was that they consider the language used in the Advisory Notes is biased towards community ownership or, at the very least, is not inclusive of private ownership and owners. They called for the next iteration of the Advisory Notes to adopt a more collaborative tone, with language pertaining to supporting and collaborating with landowners to make positive decisions about land.

Other respondents who commented on how the Advisory Notes should be changed or developed suggested they could be simplified, made more digestible for different types of landowners, and could focus on giving a clearer understanding of what is trying to be achieved. A connected suggestion was that there should be a clearer connection between the advice and corresponding principles in ways that would provide practical benefits those seeking to address the principles in practice.

There was also a call for the Advisory Notes to be updated regularly, including to reflect regulatory and policy changes such as those stemming from the Fourth National Planning Framework (NPF4) and the Planning (Scotland) Act 2019. It was suggested that the Advisory Notes must be seen as 'living documents', which will need to be refreshed frequently as reforms to planning and other related matters come into effect.

Specific changes or additions that respondents wished to see included:

• A clear explanation of what is meant by key terms, such as 'high standards' or 'significant'.
• A more explicit reference to the role the Statement can play in addressing equality and diversity issues. This point was made in connection to Principles 1 and 6 in particular.
• Increased coverage of the urban context.
• The use of examples relevant to different sectors to demonstrate the expectations of the Statement and good practice.
• Inclusion of case studies demonstrating good practice by private landowners, including estate owners.
• Links to resources now available to support implementation, such as the SLC's protocols.
• Links to relevant policy and legislation.
• A consideration of common implementation challenges.
• Some additional definitions, for example of natural capital, just transition and integrated land use.
• Information on the role of enforcement in ensuring minimum standards are met. This point was made in connection to Principle 4 in particular.

Restructuring suggestions included splitting the case studies from the other content of the Advisory Notes and presenting the case studies in a separate section which includes appropriate hyperlinks links to the main document. Another was that the Advisory Notes should not be retained as part of the main Statement but could be presented as an annex to it.

In terms of elements of the current Advisory Notes that may no longer be required, suggestions included:

• The statistics presented at the start of each principle.
• The 'What we have done/are doing' sections.
• Any references to land management practices that may now be outdated. There was specific reference to the Muirburn Code.

Finally, one perspective was that the Advisory Notes are no longer required, and that the SLC should instead be charged with maintaining and developing their Good Practice work.

Question 10 – Do you have any comments on the layout of the Statement?

Eleven respondents commented at Question 10 and comments tended to be brief, sometimes reiterating points raised at earlier questions. These included that the vision and principles should be supported by a set of desired outcomes that can be delivered through the implementation of the Statement.

New issues raised included that some respondents consider that the Statement is not user-friendly reading and could be pared back to the basics and kept concise. Other suggestions included that:

• It would be helpful if the principles were categorised according to those that guide policy and those that guide best practice on the ground.
• Annex B on the Policy Context is very useful and should also be included in the revised Statement.

Bridging gaps in awareness

Question 11 – Please tell us about any sectors you perceive to have lower awareness of the Statement.

Twenty-six respondents commented at Question 11.

While some respondents expressed a view of generally low awareness of the Statement or of low awareness beyond key stakeholders or those with direct involvement, the sector highlighted most frequently was the urban population. Investors in commercial and residential property in urban areas were also suggested to have lower awareness of the Statement.

It was also suggested that deprived communities are likely to have a lower awareness of the Statement, and a 'National non-governmental organisations' respondent involved in regeneration of deprived areas reported a poor level of awareness in their own network that includes local authorities, housing associations, community groups, charities and businesses.

The farming community was also highlighted as an area where awareness of the Statement may be lower. A 'National non-governmental organisations' respondent representing members in the farming sector reported that only around 1 in 5 of respondents to their own member survey were very familiar with the Statement and suggested this figure might be lower outwith their membership. They also reported low awareness of the present self-assessment process. Another 'National non-governmental organisations' respondent highlighted examples of wildlife crime on farmed land as an illustration of poor awareness of the Statement with respect to natural capital and the need to embrace and support biodiversity.

Among farmers and landowners, specific groups suggested as having lower awareness included:

• Some private landowners and businesses which own large land areas or assets who may not think the Statement applies to them.
• Small farmers and small landowners who may not think the Statement applies to them due to the limited size of their holding or who lack resources to seek information.
• Landowners who do not engage with professional advisors, or who use professional advisors from outside of Scotland. With respect to professional advisors it was argued that solicitors, sales agents and accountants in the land and buildings sectors should also have increased awareness of the Statement.
• Commercial onshore wind developers and landowners who lease land to them.

Respondents also suggested a range of other sectors where they thought awareness may be lower including:

• Faith and charitable organisations, outside of the community ownership and environmental sectors.
• Some public sector organisations.
• Higher education where, even in relevant subject areas, it was suggested many university students are unaware of the Statement.
• Small community groups and, specifically, the community sector on islands.

Question 12 – Do you have any suggestions of ways to engage with sectors who do not currently see the Statement as relevant to them?

Thirty-one respondents commented at Question 12.

Raising awareness

General suggestions on improving engagement included further awareness raising, and more publicity about the work of the SLC, with ideas such as an expanded SLC roadshow, or using a variety of workshops, webinars, event presentations and blogs to build knowledge and understanding. Specific suggestions included presentations to community council forums or public meetings. It was also noted that although the 2018 Guidance on Engaging Communities in Decisions Relating to Land provides a valuable guide to community engagement, awareness of it is poor.

It was also reported that – as resources permit - the Good Practice Programme offers scope to raise awareness using tailored approaches to effective engagement. The 'Government and NDPB' respondent making this point also noted the extent to which development of the programme to date has been supported by sector leaders and membership organisations, and explained their intention to extend work with leaders and membership organisations to reach other sectors.

Some respondents indicated that they might be able to assist in raising awareness in their own sectors – for example by monitoring awareness in island communities or by providing space at a relevant event or via an online platform.

In addition to general awareness raising, it was suggested there should be a focus on those sectors with greater rights and responsibilities due to scale, concentration or where land/asset use is causing harm. Island communities and vacant and derelict land were given as examples. Given its importance, it was also proposed there should be a systematic approach to establishing the level of awareness of the Statement in different sectors and then using the findings to develop a targeted awareness raising strategy. However, it was also noted that there is substantial variation within sectors, with organisations varying in size, context and governance structure.

A number of respondents argued that greater engagement with the Statement could be achieved by putting adherence on a compulsory or statutory basis, and by enforcing the Statement so there are consequences for those who do not engage. Specifically, it was suggested that completing the Land Rights and Responsibilities self-assessment should be made mandatory.

Engaging specific sectors

With respect to urban areas and areas of deprivation, it was suggested that scoping activities could identify sites with potential to be future case studies for implementation of the Statement. In relation to vacant and derelict land, this could involve engaging with an owner and the local community regarding how the principles of the Statement could be fulfilled in relation to a site, and could be co-ordinated with other strategies to tackle vacant and derelict land. It was also acknowledged that existing work on vacant and derelict land may have already helped to raise awareness.

A greater focus in the Statement on land use in and around urban communities was also proposed since it was suggested that this is the land that will have an impact on most people's daily lives.

In the context of farmers and landowners, suggestions included that the Statement should emphasise opportunities for all landowners regardless of their nature or size, and that the work of the SLC's Good Practice Team should be widened to cover to all landowners regardless of the nature and size of their holdings. It was also suggested that clarity as to how the Statement relates to other strategies and policies (such as the Land Use Strategy, Regional Land Use Partnerships and wider agricultural policy) could help to raise awareness in this sector.

In relation to university education, it was suggested that the SLC could raise awareness by running seminars or training events on the Statement in relevant disciplines. Teaching in schools was also proposed.

Other suggestions

Other ideas for improved engagement included ensuring that the language used in the both the Statement and the Advisory Notes is as clear and simple as possible. Further ideas included that:

• The retail sector should engage with the source of food and consumer messaging in relation to land.
• For companies, action in relation to the Statement could feature in Environmental, Social and Governance reports.

Question 13 – Do you have any ideas for other ways that adoption of the Statement could be promoted?

Twenty-seven respondents commented at Question 13. Although most comments were brief, one 'Government and NDPB' respondent provided a more substantial contribution.

Developing the Good Practice Programme

The potential to further support and develop voluntary adoption of the Statement through the SLC's Good Practice Programme was highlighted, as was the work of the Good Practice Advisory Group and other stakeholders in reaching a consensus on reasonable expectations for implementing land rights and responsibilities. Recent work on improving awareness in the public sector was also reported.

Plans for further development of the Good Practice Programme were reported to include:

• Expanding the training programme to reach more people.
• Revising the self-assessment process to make it more accessible.
• Publishing guidance on implementing the land and assets pillar of community wealth building.
• Working with stakeholders to develop a protocol on natural capital.

There was also a call for development of protocols for the agriculture and forestry sectors as the major land uses in Scotland, and for promoting the link between land and language. On the latter point, a 'Government and NDPB' respondent responsible for promoting Gaelic development noted they would welcome the opportunity to provide advice to the Advisory Group and to participate in some of its discussions.

Further engagement

Respondents suggested a range of organisations that might be engaged with to improve adoption of the Statement including:

• Community groups such as Community Councils and Community Land Owning Bodies.
• Network and membership organisations, including outdoor recreation and conservation membership organisations.
• Those responsible for land and property.
• Key professional and representative bodies.
• Local authorities.

A 'Government and NDPB' respondent noted their intention to encourage sector membership organisations to further develop their own guidance and support for landowners and managers and other respondents stated that they would be pleased to continue to support awareness raising including sharing information and promoting the Statement via social media.

A statutory basis

As noted at Question 12, some respondents argued in favour of placing the Statement on a statutory footing, rather than the voluntary basis on which it operates at present. A 'Government and NDPB' respondent noted that while existing voluntary approaches (such as the Good Practice Programme) are often effective, there are circumstances where landowners or managers do not choose to engage and where a greater statutory footing could provide a useful backstop. However, they emphasised a view that the first approach should still be to support voluntary adoption of good practice. It was suggested that the model and experience of the Tenant Farming Commissioner could be applied to support implementation of the Statement.

It was also argued that there should be a greater emphasis on promoting the benefits and opportunities associated with the Statement, rather than stressing the requirement to meet a set of principles – effectively more focus on the carrot rather than the stick.

Other proposals

Other ideas for improving adoption of the Statement included:

• A form of accreditation scheme to recognise good practice. It was argued this could provide an opportunity for organisations/businesses to promote themselves as well as promoting adoption of the Statement.
• An improved approach to monitoring and evaluating implementation of the Statement, encouraging stakeholders to understand and appreciate their contribution.
• A new duty on public bodies to report on and develop an action plan for furthering the Statement.

Requiring adherence to the Statement and relevant protocols as a condition of receiving public funding.