Scottish land rights and responsibilities statement: consultation response report

Scottish Land Rights and Responsibilities Statement – Consultation Response Report

Section 2(2) of the Land Reform (Scotland) Act 2016 requires that Scottish Ministers must, before publishing the first Land Rights and Responsibilities Statement, publish a draft Statement and consult such persons as they consider appropriate.

Section 2(3) of the Land Reform (Scotland) Act 2016 requires Scottish Ministers to lay before the Scottish Parliament a report setting out:

(a) the consultation process undertaken in order to comply with section 2(2), and

(b) the ways in which views expressed during that process have been taken account of in preparing the Statement (or stating that no account has been taken of such views)

Scottish Ministers published a written consultation on the draft Statement on 16th December 2016 with views invited by 10th March 2017. 62 responses were submitted, 37 from organisations and 25 from individuals. The professional and independent analysis of the consultation responses was carried out by The Research Shop and can be found at the following web address: http://www.gov.scot/publications/land-rights-responsibilities-statement-consultation-analysis//0

Annex A contains the Statement Vision and Principles that were consulted on, and Annex B contains the final, published version of them.

The main findings from the Consultation Analysis were as follows:

• Most of those who provided a view considered that the supportive information in the consultation document, which set out the relationship between the Statement and other key policy areas, captured the range of relevant policy areas.
• There was much support for the Scottish Government's human rights based approach to the Statement. The consultation analysis reported that this was viewed as reflecting current perceptions and expectations of land as a resource to be used in the public interest.
• The majority of respondents agreed with the Statement's Vision which was perceived as reflective of a collaborative approach; it introduced the concept of responsibilities accompanying land ownership; and encompassed the mutually supportive objectives of positive economic and social impact.
• All of the six principles received support from most of the respondents who provided a view. Some considered Principle 4 to be the most important in terms of demanding high standards and its focus on stewardship.
• Several respondents highlighted that a well-planned implementation of the Statement will be crucial to ensuring its effectiveness.
• A recurring view was that the Statement should be underpinned by a robust monitoring and evaluation framework.
• The proposals were envisaged as having many positive impacts, with those most frequently identified as: reduction in inequality; better use of land; and community empowerment.
• Only a few potentially negative impacts were identified: removal of property rights of landowners; risk of poorer land management due to land being broken into smaller pockets; and risk of community groups not having the capacity to manage land effectively.

Scottish Government Consideration of the Responses

The Scottish Government has given detailed consideration to the consultation results. Below are the Scottish Government responses to the main points highlighted by the consultation responses.

Consultation Summary - Views on the Statement's policy context - Analysis summary

Most of those who provided a view considered that the supportive information in the consultation document, which set out the relationship between the Statement and other key policy areas, captured the range of relevant policy areas. Some suggestions were made for additional policy areas under the headings of: Human Rights and International Standards; National Performance Framework; Land Strategies; and Related National Policies.

Several respondents acknowledged the wide range of policy areas which interact with land rights and responsibilities, and identified the need for developing a strong and clear Statement to draw these together.

Scottish Government Response

As a society we face many challenges, from climate change to tackling inequality. Land is a significant resource and good use of land, socially, environmentally and economically, can support sustainable development and contribute significantly to meeting the challenges we face.

The Scottish Land Rights and Responsibilities Statement needs to fit alongside, work with and inform other major Scottish Government policies that relate to land, such as the Land Use Strategy, Climate Change plans and Housing and Planning policies.

The Scottish Government is committed to ensuring that all relevant land related policies work together to produce better outcomes for Scotland and its people. In the Statement there are many examples of other government policies relating to land, such as housing policy, and, how these relate to the principles within the Statement.

Within the Scottish Government there is an on-going programme of work to ensure that the Scottish Land Rights and Responsibilities Statement is understood and implemented right across the policy spectrum. Section 3 of the Land Reform (Scotland) Act 2016 requires that Scottish Ministers must, in exercising their functions and so far as reasonably practicable, promote the principles set out in the Scottish Land Rights and Responsibilities Statement.

Views on the Statement's human rights based approach - Analysis summary

Most of the respondents who commented agreed with the Scottish Government's human rights based approach to the Statement. The overall analysis of the consultation responses reported that this approach was viewed as reflecting current perceptions and expectations of land as a resource to be used in the public interest; it was seen as being consistent with various Conventions and Covenants on human rights; and was perceived to be a way of safeguarding owners' enjoyment of their property, whilst making clear that public interest can, in some instances, justify interference with private interests.

A common view was that the Statement should mention the human rights based approach explicitly. Another recurring view was that the responsibilities which accompany human rights should be made clear.

Some respondents perceived the Statement to lack clarity on how existing human rights based legislation would support the implementation of the Statement's Vision and principles in practice.

Scottish Government Response

The Scottish Government is pleased that most respondents to the consultation agree with human rights based approach to the Statement.

In response to consultation responses, the Scottish Government has strengthened the wording in relation to human rights. For instance in Principle 1, it is now explicit that the overall framework of land rights, responsibilities and public policies governing the ownership, management and use of land, should promote, fulfil and respect relevant human rights in relation to land.

The Vision also makes it clear that with all rights come responsibilities, and that all those who exercise rights should do so responsibly. In the advisory notes we also explain that exercising a land right covers a whole range of activities, not just land ownership.

An additional annex has also been added in response to the consultation. This covers the human rights legislation and conventions that are relevant to land rights and responsibilities and which underpin the Statement.

Views on the Statement's Vision – Analysis summary

Most respondents who provided a view agreed with the Statement's Vision, although individual respondents were generally more supportive than organisations, almost half of whom disagreed with it.

The Vision was perceived to be supportive of a collaborative approach; it was seen as introducing the concept that with land ownership comes responsibility to others; and it was viewed as encompassing both economic and social objectives.

Some respondents commented that the Vision should make mention of environmental sustainability; others considered that responsibilities were not emphasised sufficiently.

Scottish Government Response

The Scottish Government has reframed the Vision to distinguish it from the six principles, and in particular Principle 1. The Vision is now clearly defined as an aspirational Vision, for a Scotland with a strong and dynamic relationship between its land and people, where all land contributes to a modern and successful country, and where rights and responsibilities in relation to land are fully recognised and fulfilled.

The parts of the Vision that dealt with establishing a system of land rights have been moved to Principle 1, which clearly defines what the overall framework of land rights and responsibilities should be, underpinned by human rights.

The aspirational Vision and the framework for land rights and responsibilities are now therefore clearly distinguished.

The Vision establishes a value based goal to work towards, Principle 1 refers to a high level framework for Scotland's system of land rights and responsibilities which takes a human rights based approach. The rest of the principles set out particular aspects of land rights and responsibilities, covering: diversity of land ownership, community involvement in land ownership, management and use; high standards of stewardship and land ownership, management and use; transparency; and collaboration and engagement in relation to decisions about land.

Comments on environmental sustainability have been reflected in the wording of Principle 1.

Principle 1 - Analysis summary

Principle 1 was welcomed as encompassing the key elements of a land rights and responsibilities framework, with specific aspects singled out for particular support: mention of a duty to future generations; promotion of environmental sustainability; and reference to a fairer society.

A few respondents suggested that the Principle's heading should include reference to fulfilling, or progressive realisation of, human rights.

A recurring view was that the Principle heading and the listed policies need to be more explicitly connected to show how the policies reflect, and align with, the Principle.

Those opposing the Principle considered that there is reluctance within it to acknowledge that there is a public right to private ownership and enjoyment of land and buildings; and that the term "fairer society" required clarification.

Scottish Government Response

As noted above, some of the comments in relation to the Vision have been taken on board in Principle 1.

Principle 1 now includes protection and enhancement of the environment, as well as sustainable economic development and building a fairer society.

Following the consultation responses, it now also refers to promoting, fulfilling and respecting relevant human rights in relation to land.

We have tried to be clear about the terms used in Principle 1, but do not believe it would be helpful to rigidly define them or their relationship with the spectrum of government policies. Implementation of the system of land rights and responsibilities as outlined in Principle 1 will evolve over time and our approach needs to be flexible enough to adapt to changing contexts. For instance, changing environmental and economic circumstances, social aspirations and technology, will put different sorts of pressures on land and it is important that our system of land rights and responsibilities is flexible enough to deal with this.

The Scottish Land Commissioners will have an important role in providing further guidance on the system of land rights and responsibilities in light of these changing contexts, and in setting out how Principle 1 and the other principles in the Statement apply to particular circumstances.

In response to the comment that there is a reluctance to acknowledge a right to private ownership and enjoyment of land and buildings, we have made it very clear in the advisory notes to the Statement, that the public interest should not necessarily be thought of in opposition to the private interest. We have used industry, including farming, and housing as examples of this. In particular we have highlighted the work the Scottish Government is doing to help people own their own homes.

The European Convention on Human Rights is a fundamental component of our constitutional framework, and incorporated into UK law via the Human Rights Act 1998. Under the Scotland Act Ministers cannot act in a way which is incompatible with the ECHR. Protocol 1, Article 1 protects the right to enjoy property peacefully, and was a key consideration in our drafting of the Statement.

The Scottish Government believes that the term "fair" is generally well understood, but that it is something the Scottish Land Commissioners may provide further guidance on in relation to changing contexts and particular circumstances.

Principle 2 - Analysis summary

National NGOs were particularly supportive of Principle 2 in terms of its focus on broadening the pattern of land ownership, the inclusion of "tenure", and the mention of the role of charitable bodies in managing Scotland's natural and built heritage.

A recurring view amongst those opposing the Principle was that diversity of ownership does not link directly with diversity of land use or management. Some respondents considered the Principle to be overly ideological and detracting attention from what they identified as the key issue of stewardship of land, how it is used rather than how it is owned.

Scottish Government Response

In line with some of the responses, we have removed the term "widely dispersed" from principle 2, as we agree this was an ambiguous term. The principle now focusses on encouraging a more diverse pattern of land ownership and tenure, with more opportunities for citizens to own, lease and have access to land.

The Scottish Government recognises that a change of ownership, or scale of ownership, does not necessarily bring about a change of use. In addition it recognises that there are many land owners in Scotland who have been adapting and modernising their use of land in response to changing circumstances. These changing circumstances include the wider business environment in which land owners have to operate. They also include working with the Scottish Government's Land Use Strategy and helping to meet the needs of society, for instance through the sale of land for housing, and provision of energy, food, raw materials and industrial production.

However the Scottish Government is of the view that the pattern of land ownership can have a bearing on land use, and remains of the view that there may be occasions when the scale or pattern of land ownership and control can be a barrier to sustainable development. A wide and diverse availability of land and buildings allows businesses, organisations and individuals to pursue projects of all scales and purposes.

The Scottish Government recognises the economy of scale arguments put forward by some respondents. But it also recognises that, for many people, small scale ownership and management are seen as desirable. For instance it can create a sense of independence, responsibility and innovation, as well as providing opportunities for businesses start-ups and new entrants to land use and management.

If we are to grow our businesses and encourage start-ups, as well as support existing businesses, Scotland needs a land system diverse and flexible enough to accommodate both large scale and small scale enterprises. The system also needs to be diverse and flexible enough to help meet the widespread and diverse need for housing across urban and rural Scotland.

The Scottish Government also believes that giving more people the opportunity to own and manage land, where this is right for them, is intrinsically a good thing in itself, contributing to fairness, social opportunity and community building, and a sense of wellbeing and fulfilment, which may be out of all proportion to the size of the land in question or the output from it. It is underpinned by our human rights approach to land rights and responsibilities.

For instance the growth of interest in hutting, community ownership, allotments, urban food growing projects, gardening, and small scale community run neighbourhood shops, show the interest that people have in owning or having control over land and buildings, either individually or in association with others.

Principle 3 - Analysis summary

Respondents from a range of sectors supported Principle 3, with some highlighting existing evidence of positive benefits arising from broadening the opportunities for communities to own buildings and land.

Some respondents suggested that in view of the potential benefits to communities of leasing buildings and land, reference to leasing should be included in the Principle's title. Another suggestion was to refer to "having access to" in addition to owning or leasing, and that the opportunities for owning, leasing and having access to buildings and land should be communicated to local communities so that they are aware of these possibilities.

An emerging theme was that support should be in place to enable communities lacking in capacity and skills to realise Principle 3.

A common view in opposition to Principle 3 was that it is already covered by the Community Empowerment (Scotland) Act 2015.

Scottish Government Response

In line with some of the consultation responses, we have extended Principle 3 to include the lease and use of buildings and land.

In terms of community capacity and skills, there are already a range of measures and organisations to support communities. These include the Scottish Land Fund, which helps communities by providing funding to support the purchase of land. The Community Ownership Support Service ( COSS) has been funded by the Scottish Government specifically to support community based groups in Scotland take a stake in or ownership of previously publicly owned land or buildings. In addition the Citizens Advice Bureau, the Scottish Council for Voluntary Organisations, Highlands and Islands Enterprise, DTAS and the Scottish Government's Community Land Team all provide advice and support to groups to communities wishing to be more involved in the ownership, leasing or use of buildings of land. Voluntary organisations such as Community Land Scotland, which is active in promoting community ownership, may also help by providing advice to communities.

The Scottish Land Commissioners, whose purpose includes reviewing and recommending changes to law and policy relating to land in Scotland, and who are able to carry out research, will take an active interest in assessing potential barriers to community ownership.

The Community Empowerment (Scotland) Act 2015 ( CEA 2015), mentioned by some respondents, introduced the community right to buy abandoned, neglected and detrimental land, extended the community right to buy to urban as well as rural areas, and created asset transfer process in relation to land and buildings owned by certain public bodies. This principle also now goes beyond ownership to include leasing and having access to land and buildings.

The Scottish Government believes it is important to distinguish between legislation and the principles of the Scottish Land Rights and Responsibilities Statement. The Scottish Land Rights and Responsibilities Statement is a statement of principles. Scottish Ministers are under a duty to promote the principles as far as reasonably practicable when exercising its functions, and it is to be hoped that the principles will, over time, be more generally understood and respected by society, particularly by those who own land or take decisions in relation to land. They will also develop and evolve as discussions about land reform continue.

The CEA 2015 is a specific piece of legislation. Even though it was made prior to the publishing of the LRRS, in many ways it exemplifies Principle 3. However the CEA 2015 is only one expression, in legislation, of Principle 3. Principle 3 of the Statement may in future, where practicable, inform other legislation relating to land and buildings, and in addition is a broad principle which, it is to be hoped, will be adopted by society more generally, including land owners. Examples of the active implementation of Principle 3, outwith legislation, are those instances where land owners and communities have come to an agreement whereby land has been transferred to the community.

Principle 4 - Analysis summary

Some respondents welcomed this Principle as addressing what they saw as the fundamental feature of land ownership, namely, stewardship.

Others supported the emphasis on responsibilities within the Principle and considered that it reached beyond owners, to land managers and users too.

It was suggested that the Principle could be strengthened by re-wording some phrases to make them more meaningful and providing examples as illustration.

Scottish Government Response

The Scottish Government is pleased that this Principle has been welcomed.

The advisory notes to the Statement do not define stewardship and high standards of land ownership in terms of day to day practices. Doing so could exclude other, useful approaches to stewardship and land management, and would not reflect the wide range of circumstances of land ownership and management. Encouraging growth and entrepreneurship, among private, public and community owners, means leaving the door open for experimentation and development of new ideas, and a certain amount of risk taking. In addition, when it comes to detail, there are many different ideas about how land should be used and managed, and what constitutes good practice. The different voices heard in the debate around rewilding is an example of this.

Following the consultation, the Scottish Government has, in the advisory notes to the LRRS principles, linked the concepts of stewardship and high standards of land ownership, management and use to the principles of sustainable development, and stated that responsible investment is needed to ensure that land can deliver sustainable social, economic and environmental benefits.

Two respondents requested that the Principle should make clearer that everyone has a role in looking after Scotland's land, whether or not they are holders of land rights. The Scottish Government would like to make clear that the term "holder of land rights" is not limited to owners, tenants and managers of land. It also applies to public authorities taking decisions about land, and those exercising any right to use land, however informally. As an example, land rights are exercised in going for a walk, mountain biking, camping and having a picnic. Principle 4 applies to people taking part in those activities also.

Principle 5 – Analysis Summary

Several respondents, across a range of sectors, identified the key advantages of Principle 5 to be increased transparency and accountability. Other important benefits were perceived to be improved communication between stakeholders, and better co-ordination of activities and collaborative ventures.

A few respondents requested that loopholes, which enabled data to be hidden or obscured, should be identified and addressed in order to support Principle 5.

A key concern was that landowners may find the provision of information to be costly and onerous.

Scottish Government Response

Most of the individuals and organisations who provided a view agreed with Principle 5. There were 51 responses to this question, and 46 of these were supportive.

One representative organisation commented that they agreed with the principle but not the wording, and that this principle should make direct reference to an increase in the transparency about ownership. There were also views that transparency should also refer to transparency about land use, rather than just ownership.

In response to these points, the Scottish Government has focussed Principle 5 on improving transparency of information about the ownership, use and management of land, and the availability of that information.

Principle 6 - Analysis Summary

There was strong support for Principle 6 which was welcomed as an approach to better and more transparent decision-making; and supporting a shift in focus towards the public interest and the common good.

Some respondents considered that "community" should encompass communities of interest in addition to communities of place.

A common concern was that wider community engagement should not result in delaying and increasing the complexity of decision-making. Another concern was that the community should be fairly represented, and not simply by those whose voices are loudest.

Some respondents held the view that community engagement should not be a blanket requirement in every decision on land, but should be instigated only in certain circumstances, such as a material change to land use.

Scottish Government Response

Firstly, it should be noted that the Scottish Government, as required by Part 4 of the Land Reform (Scotland) Act 2016, will publish Guidance on Engaging Communities in Decisions Relating to Land. There has already been a consultation on draft guidance, and the Scottish Government intends to publish the guidance in Spring 2018.

Principle 6 of the Statement seeks to establish a core value in relation to collaboration and engagement, and Scottish Ministers will have a duty to promote it (along with the other principles) when exercising their functions, so far as is reasonably practicable. Private and public land owners and decision makers are also encouraged to take its ethos on board. The Part 4 Guidance, on the other hand, will relate only to specific circumstances, and will be more practical in its approach.

With regards to Principle 6, the Scottish Government is pleased that 40 out of the 50 responses to this question agreed with it.

The Scottish Government is aware that some organisations would like to see communities of interest emphasised. The Scottish Government will continue to look at this issue, but believes that the focus of land reform in Scotland, for now, should remain on empowering local people and local communities.

In response to concerns raised by some stakeholders, the term "wide" has been removed from this principle. The Scottish Government agrees that engagement does not always need to be wide. It is more important that resources are focussed on working with those affected by decisions about land, usually those whose homes, livelihoods, local environment and society are affected by it. The Principle now seeks for "greater collaboration and engagement" rather than "wide community engagement".

The Scottish Government agrees that community engagement should not be a blanket requirement in every decision on land, but should be instigated only in certain circumstances. The Part 4 Guidance, when it issues, will seek to make those circumstances clearer.

Further comments – Analysis Summary

Many respondents welcomed the draft Statement as comprising a promising start towards changing culture and furthering the land reform agenda.

A recurring view, emerging largely from National NGOs, was that the Statement could go further to set a realisable vision and encourage a change in thinking.
A few respondents considered that the Statement was not sufficiently compelling as currently drafted to drive forward radical change.

There were repeated calls for the Statement to be more specific on how landowners, users and managers should be engaged to support desired outcomes; the context in which the Statement will be exercised; and the expectations placed upon the parties involved.

Several respondents, from a range of sectors, highlighted a well-planned implementation of the Statement as crucial in ensuring its effectiveness. One National NGO suggested that an Action Plan should be developed which outlined the steps for the Scottish Government to take in supporting the embedding of the principles of the Statement. A Communication Plan was also envisaged in order to ensure wide-scale awareness and publicity of the Statement, beyond the usual stakeholder suspects.

A recurring view was for the Statement to be underpinned by a robust monitoring and evaluation framework. However, it was acknowledged that the absence of specific actions and targets could make measurement of achievement challenging. A shared view was that this should not deter regular review of progress against the aspirations, and there should be reference to accountability structures within the main body of the principles.

Scottish Government Response

Throughout the drafting of the Statement, following the consultation, the Scottish Government has focussed on creating a radical but realistic and proportionate set of principles, which it hopes will be widely adopted.

The Statement is a broad set of principles, to guide government policy and encourage good practices in relation to land. It is not the place of the Statement to go into any great detail as to how the principles should be implemented in individual circumstances, although the advisory notes and case studies in the Statement should guide thinking on how this might be best achieved. Apart from the duty on Scottish Ministers to promote the principles, its adoption is voluntary, and successful adoption of the principles will require a spirit of collaboration and mutual respect.

The Land Reform Team is working with colleagues across the Scottish Government to help them understand the duty on Ministers to promote the principles in the Statement.

It has always been the Scottish Government's position that the principles are high level principles, and not specific outcomes against which targets can be evaluated. However, the Scottish Land Commissioners will have a role in monitoring the take up and effectiveness of the Statement.

Impact assessment – Analysis Summary

The proposals were envisaged as having many positive impacts, with those most frequently identified as: reduction in inequality; better use of land; and community empowerment.

A few potentially negative impacts were identified: removal of property rights of landowners; risk of poorer land management due to land being broken into smaller pockets; and risk of community groups not having the capacity to manage land effectively.

A number of potential financial costs were identified, with some viewed as necessary in order to reap benefits over the longer-term: increased funding requests to asset transfer funding schemes, such as the Scottish Land Fund; community engagement processes including costs to the Scottish Government for capacity-building; cost to the Scottish Government of developing associated guidance; costs to landowners of registering ownership; costs to farmers due to the potentially negative impact of division of land on agriculture; and requirement to engage with communities on decisions about land; costs of disputes which go to court; possible disincentive to inward investment.

Most of those providing a view identified potentially positive impacts for the environment as a result of the proposals, in particular: decision-making on land will be in the public interest, and therefore is likely to have positive environmental impacts; the proposals recognise the importance of land management and use alongside ownership so improved stewardship will result; an increase in diversity of land use is likely to result in an increase in bio-diversity; the proposals will promote "pro-environment" behaviour by communities.

Scottish Government Response

It is important to bear in mind that a key aim of the Statement is a broad set of principles to support a fairer and more prosperous Scotland, and support better use and management of land.

The Scottish Government is aware of the range of views on the Statement, with both positive outcomes identified and some concern about potential effects.

The Statement, and land reform measures in general, will be kept under review, both by the Scottish Government and the Scottish Land Commissioners.