Small landholdings: landownership and registration - report

4. Legal Forms and Processes: A Summary

4.1. Board of Agriculture for Scotland

4.1.1. The BoAS was an arm of government and its powers were rooted in relevant statute and civil service governance.

4.1.2. There were no legal rubrics/processes in place to direct the identification and establishment of schemes in 1911, although there is evidence that the BoAS slowly developed its own (somewhat inconsistent) procedures via precedent. This generated a good deal of contemporary criticism. Some by the poorly drafted and amended 1911 legislation and some by the actions of the BoAS and SLC in the initial years of their operation.

4.1.3. The historian Ewen A. Cameron notes that the 1911 Act 'had bequeathed a badly conceived vehicle for creating new small holdings', going on to explain that landowners got no compensation at all if they agreed to a scheme ('a powerful disincentive to cooperation'). It did work in some cases however; usually where the BoAS had identified vacant land/farms, rather than those occupied by sitting tenants.

4.1.4. If agreement did not occur, the landlord had a chance to object to negotiations, and if the matter could not be settled, the BoAS could employ compulsory processes. This system arguably gave the chance for 'obstructionist tactics' on the part of estates and sitting tenants. Partly due to this and partly due to the disruption of WWI, between 1912 and 1919 there were '8,507 serious applications for land and only 482 new holdings created' across the whole of Scotland (including the crofting counties).^[8]

4.1.5. Compensation was negotiated on a case by case basis. Elements of schemes that landowners or sitting tenants could claim for included: loss of rent, buildings, fencing and other materials. The BoAS effectively passed the cost on via grants or loans to the new small landholders.

4.1.6. The case of Scott Plummer v Board of Agriculture for Scotland 1916 S.C. (H.L.) 94 was an important dispute over compensation in Selkirkshire. It provided a precedent for landowners to claim compensation for loss of selling value due to creation of small holdings.^[9]

4.1.7. When a SLH was approved to take up a new holding, s/he had to be registered by the BoAS with the approval of the landowner.

4.1.8. The Land Settlement (Scotland) Act 1919 gave the BoAS new powers and a larger budget to accelerate land settlement. It also clarified some of the poorly drafted clauses of the 1911 Act, closing some loopholes and creating a more efficient environment. For example, the BoAS now had the power to issue an order for the establishment of new holdings without reference to the SLC.

4.2. Scottish Land Court

4.2.1. The powers of the Scottish Land Court in this period related to rural tenancies. Its powers were wholly derived from statute. It did not make rulings about who owned what (such matters being for the Court of Session or local sheriff courts) or make rulings about 'title conditions', for example, rights of access. The SLC fixed fair rents on new SLHs schemes. This was often a source of grievance to landowners and slowed negotiations down. It was important because levels of compensation were often calibrated against rent.

4.2.2. Once the BoAS had a scheme set up, they had to submit it to the SLC for approval, including all estimated costs. Additionally, all schemes and their associated costings had to be submitted to the UK Treasury for final approval, who often quibbled over these costs (especially buildings costs), slowing down a scheme's establishment.

4.2.3. The SLC fixed new fair rents, adjudicated on disputes and when it came to a decision, it issued a final certified order so that a scheme was officially established.

4.2.4 The case studies show a reluctance on the part of some landowners to take cases to the SLC and a preference to settle with the BoAS. There are three potential reasons for this: (1) because they think the SLC was biased against landowners, (2) they wished to avoid a fair rent ruling, and (3) they wanted a swifter resolution and wished to avoid a lengthy SLC hearing. Point (1) was especially influential in the early years of 1911-1918, in part because of the chairmanship of Lord Kennedy, the first chair of the SLC. His politics were radical and much debated in the press.

4.2.5. A problem for the SLC was the way in which its decisions and processes were very publicly criticised by the Court of Session, mainly around their lack of detailed reasoning in support of fair rent decisions, failure to perform essential duties in connection with the establishment of new schemes and that they more frequently took the view of the tenant over that of the landowner.

4.2.6. The regulation of small landholdings has changed very little in any legal sense since 1911. There have been changes to land law more generally, including conveyancing reforms in 1924 and 1970 (relating to the process of transfer of land and granting security in land) and feudalism was abolished in 2004 (as a result of the Abolition of Feudal Tenure etc. (Scotland) Act 2000). However, none of these changes affected the underlying landlord-tenant relationship. The Small Landholders and Agricultural Holdings (Scotland) Act 1931 did enlarge the jurisdiction of the SLC in that (1) it could remove SLHs for non-payment of rent or other breach of statutory conditions, and (2) remove SLHs not cultivating or occupying their small landholding.