And the Land Lay, Still
At the Community Land Scotland conference earlier this summer, the Scottish First Minister appeared to dismiss the possibility that legislation giving communities the right to buy land should be strengthened. While his comments angered land reform campaigners, they were quickly welcomed by landlords.
In this article I will question the legal basis of the First Minister’s position on the community right-to-buy, and then suggest that his comments may have been politically rather than legally inspired – and related to a political resurgence by Scotland’s landed interest after a long period dogged by bad publicity. I also begin to trace a new nexus of power and influence by which the landed interest is seeking to increase its influence over the legislative agenda in Scotland, including on land reform.
One of my aims in writing is to suggest that the current Land Reform Review Group – which has already disintegrated once – is likely to be faced with increasing antagonism and conflict as an eloquent and committed body of land reformers are met by an increasingly well-resourced and resurgent landed interest. This article will be followed by a second article which argues that the potential for conflict may be mitigated if, instead of seeking to respond to the demands of these rival factions, Scotland’s legislators seek an alternative path. This path is to create a system of law that meets the recommended standards of responsible land governance in civilised societies as these standards have been set out by the international community of which Scotland is a part.
Alex Salmond’s comments on the community right-to-buy came in an interview with BBC ALBA where he said: “If we tried to compulsorily purchase land, we’d end up for generations in the European Courts. I mean .. that’s very clear.” (quoted in Wightman 2013)
Not only do his comments, as Andy Wightman has noted (ibid.), appear to pre-empt the findings of a Government appointed group which is reviewing Scotland’s land reform legislation, they also put the First Minister at odds with the considered opinion of his own legal system. Scotland’s supreme civil court, The Court of Session, last year stated that the land reform legislation is compatible with relevant European law. As the First Minister’s comments appear to put the Scottish Government and its justiciary in conflict I will outline the legal situation in detail.
The Court of Session’s legal opinion was formed last year in response to a dispute on the Isle of Lewis where the crofting community of Pairc has been seeking to use part three of the 2003 Land Reform Act to purchase land from the existing absentee landlord Barry Lomas. Part three of the Act gives crofting communities an absolute right to buy their township lands even when there is no willing seller – this is the so-called ‘hostile buy-out’. Lomas is not a willing seller and took his case to the Court of Session, claiming that compulsory purchase of his land under the terms of the Land Reform Act would breach his property rights as a landlord under the European Human Rights Act.
Lomas’ argument to the court was based on the fact that the land reform legislation does not explicitly call for the landlord’s rights to be considered when the Government decides on a crofting community right-to-buy application. He claimed that this was in breach of his right to property. At the end of last year, the Court of Session, headed by its president Lord Gill, rejected his argument, taking the view that the landlord’s interest is a part of, and entirely subsumed to, the broader public interest which Scottish ministers are obliged to consider under the terms of the land reform legislation.
Lord Gill concluded that, as long as the Government’s assessment of the public interest was not “manifestly unreasonable”, the compulsory purchase powers in Scotland’s land reform legislation meet the requirements of the European Human Rights Act in respect of a landlord’s rights to property. (Court of Session 2012
The First Minister’s comments to BBC ALBA suggest he is unaware of the considered legal position of his own justiciary; yet he believes his alternative position on compulsory purchase is “very clear”. This belief aligns him with a political claim being made by the landowners’ representative organisation Scottish Land and Estates (SLE), who are demanding that any sales of land in Scotland should have ‘a willing buyer and a willing seller’. Indeed, SLE quickly seized on the First Minister’s comments as they campaign to prevent a consultation that could lead to agricultural tenants gaining an absolute right to buy their farms. (SLE 2013a&b)
So what, or who, could have led the First Minister to adopt a position on the community right-to-buy that has no basis in Scottish law, and a position that may even create a social justice issue for which his Government will become answerable to Europe – for why should some communities in the crofting counties of Scotland have a right to buy land that is denied to other Scottish communities? In whose interest would it be for the First Minister to take a flawed and potentially unjust position on the legal status of the community right-to-buy?
On thorny questions of law, one avenue of advice Salmond might have hoped for is the good offices of the Law Society of Scotland. The Law Society is the professional body for solicitors in Scotland and one of its main functions is to analyse and respond to proposed changes in the law and comment on Scottish Government consultations. (Law Society of Scotland: 2013a)
In 2013 the Law Society responded to the Land Reform Review Group consultation. Although the society noted that their role should be to help with implementing already agreed on policies rather than seeking to “promote specific policy positions”, they also seemed to suggest that their view is against further legislative change on land reform at this time (which is itself, of course, a policy position). They told the LRRG that “In the main, we are of the view that it would be preferable to let existing land reform legislation settle down”. (Law Society of Scotland 2013b)
Although there is no explicit reference to the community right-to-buy in the Law Society’s response, any recommendation to take no further action on land reform at this time would also happen to align with the First Minister’s comments against compulsory purchase powers and with Scottish Land and Estate’s argument against extending the community right-to-buy.
Strangely, the Law Society’s apparent position of ‘take no action’ also implicitly dismisses one of the main reasons for the existence of the LRRG in the first place. The LRRG’s interim report noted that a key part of its remit is to respond to the fact that there is already “a commonly held view” that the process by which a community is able to use the land reform legislation to acquire land “is more complex than is necessary and that it could be simplified”. (LRRG 2013 – in the original this quote was emphasised by being in bold print)
Derek Flyn, one of Scotland’s most senior crofting lawyers, was an author of the Scottish Parliament commissioned post-legislative scrutiny of the Land Reform Act which firmly expressed this commonly held view in the period before the LRRG was formed. His involvement in this research makes the Law Society’s apparent assertion that at this point in time they can see no basis for any change in land reform legislation a little baffling. (MacLeod et al 2010: 4ff)
Indeed, if the law society has, as it appears, adoped a covert policy position on land reform which is against current expert legal advice as well as the remit given to the Government’s LRRG, such a stance becomes all the more unusual in light of the fact that the society’s new president, Bruce Beveridge, is uniquely well positioned to comment authoritatively and overtly on land reform legislation. Until 2011 he was the Scottish Government’s deputy director in Rural Affairs with responsibility for land reform, crofting, tenant farming and rural communities.
On leaving Government Beveridge was much in demand. He also became the first chair of the Centre for Rural Development whose remit is to “devise policy proposals that help Government implement policy that is supported by land based industry”. (CRD 2013)
When Alex Salmond spoke to the Scottish Land and Estates’ AGM in 2012 he welcomed the creation of the CRD and personally endorsed Beveridge’s appointment to it.
Salmond told SLE members: “I warmly welcome the announcement of a Centre for Rural Development, chaired by Bruce Beveridge. That is a first class initiative and I think that the Centre will add a valuable voice of expertise to the wide-ranging discussions that we will have on land use in the coming years.” (SLE 2012a)
So what exactly is the CRD? According to the Scottish Land and Estates website: “The Centre for Rural Development was instigated by Scottish Land and Estates who will provide policy support and a secretariat as well as participating members.” Despite protestations that CRD will be an inclusive organisation, half of its core membership are either major landowners or employees of Scottish Land and Estates. It is this core team that will select any outside experts they wish to take part in their projects. (SLE 2012b)
Even some members of the CRD who are not directly affiliated to Scottish Land and Estates appear to accept that they are, in fact, working solely on behalf of landlords. Professor Bill McKelvey, the former principal of Scottish Agricultural College who is named as one of the core team at CRD, does not include the CRD in his list of interests at the Agri-food and Biosciences Institute, of which he is a board member. Instead he discloses that he is a member of the “Advisory Committee for Rural Development of Scottish Land and Estates”. (AFBINI 2013)
Scottish Land & Estates chairman Luke Borwick has confirmed that SLE expect the work of the CRD will be to support the role of landowners and estates that run rural businesses. He added that the CRD would give them “a much better say in the development of rural policy”. (SLE 2012b)
The particular question of whether Bruce Beveridge or another representative of SLE had explicitly briefed Salmond about the landowners’ attitude to the community right-to-buy before the Community Land Scotland conference is less interesting than the broader phenomenon of the resurgence of landed power, symbolised by Salmond’s appearance at the SLE AGM and signalled by the creation of the CRD with the well connected Beveridge at its head.
This resurgence may also be signalled by the covert policy position that can be read in the submission made to the LRRG by the Law Society, of which Beveridge is the president.
In their response to Government proposals to set up a list of lobbyists in Scotland, the Law Society has recently offered an opinion on activities which they argue should count as ‘lobbying’.
Lobbying activities having the objective of, or likely to have the effect of, defending or furthering the interests of third parties should be covered whenever those activities are carried out as a paid-for service provision or carried out (whether or not ostensibly pro bono) by any entity (such as a foundation) in receipt of funding or any direct or indirect economic benefit of any kind, from an interest group or interested body. (Law Society 2012)
It is difficult to see how Bruce Beveridge will be able to reconcile his position as president of the Law Society – which has acknowledged that it should not seek to “promote specific policy positions” on issues such as land reform – and his role as chair of CRD which exists, as SLE chairman Luke Borwick has stated, to support the role of landowners and estates running rural businesses and to give them “a much better say in the development of rural policy”.
For the land reforming fraternity in Scotland, the news that the president of the Law Society is heading up a lobbying organisation on behalf of the landed interest will not come as much of a surprise; the poor, after all, had no lawyers. From that perspective, Bruce Beveridge – of the CRD – becomes merely the latest in the long mercenary tradition.
AFBINI. 2013. ‘Register of Interests – Professor Bill McKelvey’ on Agri-Food and Biosciences Institute website. Available on-line at: http://www.afbini.gov.uk/index/about-us/corporate/afbi-board-2013/about-us-board-members/afbi-board-bill-mckelvey-roi.htm (accessed 20th July 2013).
Court of Session. 2012. ‘OPINION OF THE LORD PRESIDENT in the Reference of Devolution Issues by the Sheriff of Grampian, Highlands & Islands at Stornoway in the cause of PAIRC CROFTERS LIMITED and PAIRC RENEWABLES LIMITED
Appellants; against THE SCOTTISH MINISTERS Respondents:’. Court of Session 19th December 2012. Available on-line at:
http://www.scotcourts.gov.uk/opinions/2012CSIH96.html (accessed 20th July 2013).
CRD. 2013. The CRD website homepage has two headings: ‘Scottish Land and Estates/Centre for Rural Development’. Centre for Rural Development website. Available on-line at: http://www.centreforruraldevelopment.co.uk/ (accessed 20th July 2013)
Law Society. 2012. ‘HM Government consultation – Introducing a Statutory Register of Lobbyists – The Law Society of Scotland’s Response, April 2012’ on The Law Society of Scotland website. Available on-line at: http://www.lawscot.org.uk/media/483253/law%20reform_introducing_a_statutory_register_of_lobbyists.pdf and see also: http://www.lawscot.org.uk/forthepublic/what-the-society-can-do-for-you/law-reform-consultations-and-bills/consultations-2012/law-reform- (accessed 20th July 2013)
Law Society of Scotland. 2013a. ‘Law Reform Consultations and Bills’ on Law Society of Scotland website. Available on-line at: http://www.lawscot.org.uk/forthepublic/what-the-society-can-do-for-you/law-reform-consultations-and-bills (accessed 20th July 2013)
Law Society of Scotland. 2013b. ‘Land Reform Review Group – Call for Evidence’ on Law Society of Scotland website. Available on-line at http://www.lawscot.org.uk/media/576229/rur_response_lrrg_jan_2013.pdf (accessed 20th July 2013)
LRRG. 2013. ‘Interim Report 10th May 2013’. Land Reform Review Group. Available on-line at: http://www.scotland.gov.uk/Resource/0042/00426905.PDF (accessed 20th July 2013)
MacLeod C, Braunholtz-Speight T, Macphail I, Flyn D, Allen S, MacLeod D (2010). Post Legislative Scrutiny Of The Land Reform (Scotland) Act 2003 – Executive Summary. Available online at: http://www.crrs.uhi.ac.uk/publications/reports/Post%20Legislative%20Scrutiny%20of%20the%20LRSA%20-%20Executive%20Summary_1.pdf (accessed 24th July)
Scottish Conservatives. 2013. ‘Cautious welcome for land reform review group’ on Scottish Conservatives website. Available on-line at: http://www.scottishconservatives.com/2013/05/cautious-welcome-for-land-reform-review-group-report/ (accessed 25th July 2013)
SLE. 2012a. ‘First Minister Praises Centre For Rural Development [-] Bruce Beveridge Confirmed as Chairman’ on Scottish Land and Estates website. Available on-line at: http://www.scottishlandandestates.co.uk/index.php?option=com_content&view=article&id=1385:first-minister-praises-centre-for-rural-development-bruce-beveridge-confirmed-as-chairman&catid=71:national&Itemid=107 (accessed 20th July 2013)
SLE 2012b. ‘Centre for Rural Development Launched – ‘To Help Build Stronger Communities’’ on Scottish Land and Estates website (Friday 31st August 2012). Available on-line at: http://www.scottishlandandestates.co.uk/index.php?option=com_content&view=article&id=1748:centre-for-rural-development-launched-to-help-build-stronger-communities&catid=71:national&Itemid=107 (accessed 21st July 2013)
SLE. 2013a. ‘Landowners respond to First Minister comments on Community Land ownership’ on Scottish Land and Estates website. Available on-line at:
http://www.scottishlandandestates.co.uk/index.php?option=com_content&view=article&id=2600:landowners-respond-to-first-minister-comments-on-community-land-ownership-&catid=71:national&Itemid=107 (accessed 20th July 2013)
SLE. 2013b. ‘Landowners’ Response To Cabinet Secretary’s Announcement On Absolute Right to Buy’ .
Wightman, A. 2013. ‘Compulsory Purchase of Land’ on Land Matters website. Available on-line at: http://www.andywightman.com/?p=2830 (accessed 25th July 2013)