Land Reform in Scotland – Past, Present and Future

Following the independence referendum of 1997, the Scotland Act 1998 created the Scottish Parliament and on the 1st of July 1999 certain devolved powers were transferred from Westminster to the Scottish Parliament. The new Scottish Parliament building became operational in September 2004, and the Scottish National Party formed their first majority government in 2007. 

A history of Scottish Land Reform can be pieced together online; Wikipedia has a  relatively comprehensive appraisal of historic and contemporary legislation. Below in the references we include a list of statutes in date order which can be used as a roadmap when investigating Scottish land reform. Instead of simply re-writing what is already available, we will attempt to draw upon the different sources available to assess what the intentions of the current Scottish Government are, and what the realistic scope of upcoming legislation is. To begin with: the main land reforms that have occurred in Scotland since 1999 are:

• Abolition of feudal tenure 
• Creation of land access rights for the general public
• A crofting community right to buy
• Agricultural tenants under 1991 Act tenancies were given right of first refusal
• Creation of a community right of first refusal 

Two of these four areas were then advanced further: 

• 1991 Act tenants had their interest in buying their farms automatically registered, so they no longer had to actively register their interest to buy a farm in the event of sale. 
• The maximum number of residents who could perform a community buyout (10,000) was removed in favour of no upper limit on the number of community members who could perform a buyout. 

In addition:  

• A Land Rights and Responsibilities Statement (LRRS) has been introduced. At present compliance with the LRRS is voluntary.

Below at the end of this article there is a comprehensive list of the legislation relating to the above changes in the law in Scotland. 

A note on the European Convention on Human Rights

The UK is party to the European Convention on Human Rights (ECHR)¹, this convention of the Council of Europe was ratified by the UK in 1953 and was incorporated in to UK law and the UK Court System in the Human Rights Act 1998.

The European Convention on Human Rights; Article 1 of Protocol 1 states: 

‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’

In Salvesen v Riddell [2013] the UK Supreme Court ruled that the Scottish Parliament was ultra vires (beyond its powers) in its retrospective legislation with respect to the Agricultural  Holdings (Scotland) Bill 2003. The 2003 Act originally provided that if a certain common farm business structure was terminated before 4 February 2003, the farm would revert to the landowner, later than this, and the person working the land would become a tenant with advantageous terms. In light of a rush of landowners’ terminations, the Scottish Parliament legislated to move the goalposts, that is, moved the period that would be covered by the new legislation to include terminations from 16 September 2002 onwards, instead of the original date 4 February 2003. The move was retrospective.

Salvesen had terminated his partnership within the first window but not within the second. He sued and the case climbed its way to the UK Supreme Court, which ruled that on balance, the relevant section 72 of the 2003 Act was incompatible with the ECHR Protocol 1 Article 1 Paragraph 1 on the Right to Property. The reaction of the UKSC was to suspend the relevant paragraphs until they were amended as the legislation was beyond the competence bestowed on the Scottish Parliament by the Scotland Act 1998. That the legislation was suspended, rather than simply being declared invalid, may prove of interest to the reader interested in law. ² There were cases that followed Salvesen, and demands for monetary compensation. ³ The passing of such legislation perhaps illustrates a lack of understanding and wishful thinking on the part of the congregation of the Scottish Parliament.

Salvesen v Riddell demonstrates one way that land reform efforts can run up against Article 1 Protocol 1 of the ECHR. Looking back to the text of Article 1 above there is a trade-off between private property rights and the general (perhaps public) interest, and the right to collect taxes and suchlike. But Salvesen arises specifically in the context of retrospective legislation and therefore doesn’t demarcate what kind of ownership designs relating to land ownership and tenancies would contravene Article 1. Salvesen doesn’t tell us what kind of broad changes to the rights and responsibilities of landowners, or changes to the design of ownership models, would or would not be found to violate Article 1. 

Research on Interventions to Manage Land Markets and Limit the Concentration of Land Ownership Elsewhere in the World

One way we can investigate how radical land reform stands up to the ECHR is to look at reforms that other countries party to the ECHR have successfully implemented without successful legal challenge. 

Research on Interventions to Manage Land Markets and Limit the Concentration of Land Ownership Elsewhere in the World ⁴ was a report published by the Scottish Land Commission in 2016. The Scottish Land Commission is an organisation that was founded by the Scottish Government in the Land Reform (Scotland) Act 2016 to address issues relating to agricultural landlords and tenants, land concentration, land taxation and land use for the common good. 

One of the first points the document makes is about the disadvantages of land fragmentation: 

‘A prominent concern in these [post Soviet] countries is land fragmentation, rather than concentration. Fragmentation has negative impacts on the land market by increasing negotiation and information costs, in turn reducing farm performance (Loughrey et al., 2018).’

The Treaty of Rome, otherwise known as the Treaty on the Functioning of the European Union or the Treaty Establishing the European Community, prohibits obstruction to the flow of capital between member states ⁵. On the face of it this encompasses the purchase of land by EU nationals, however, there are a great number of exceptions ⁶. From the Scottish Land Commission Report:

‘Policy objectives associated with such restrictions generally include: preventing foreign- based speculation in land; controlling the amount and direction of direct foreign investment; ensuring local control over food production; and indirectly controlling immigration.’

Among the many exceptions made to the Treaty of Rome were for Eastern European countries that joined the Union in 2004 and 2007. These countries were allowed to introduce temporary restrictions on land purchases by foreigners from other EU states. These restrictions were in light of the significant differences in land values between East- and Western Europe; and anticipated speculative purchases by West-European entities. 

Many countries inside and outside the EU have restrictions on purchase of both residential property as well as agricultural land. Some other categories of land targeted include forestry land, land in national parks and sales of a certain size. Common patterns include a minimum number of years resident before real property can be purchased, restriction on the number of properties that can be purchased, restrictions on holiday home ownership, requirement for prior approval by a designated public body for purchase, and land ceilings for foreign acquisitions. Motivations for these policies include ensuring purchases are for the public benefit, controlling spiralling property and land values, and combatting shortages of housing and agricultural land. 

See next: Land Reforms Abroad: Deep Dive: Polish Land Reform

Groups and Organisations:

Government Guidance:

Statute: 

Conventions, Covenants and Treaties:

Cases: 

References:

1. Council of Europe. European convention on human rights. . 2010.

2. Mark Elliott. The legal status of unlawful legislation: Salvesen v riddell [2013] UKSC 22. https://publiclawforeveryone.com/2013/04/25/the-legal-status-of-unlawful-legislation-salvesen-v-riddell-2013-uksc-22/. Updated 2013.

3. Adèle Nicol. Salvesen fallout: The latest round. https://www.lawscot.org.uk/members/journal/issues/vol-62-issue-06/salvesen-fallout-the-latest-round/. Updated 2017.

4. Scottish Land Commission. Research on interventions to
manage land markets and limit
the concentration of land
ownership elsewhere in the world. https://www.landcommission.gov.scot/downloads/5dd6c67b34c9e_Land-ownership-restrictions-FINAL-March-2018.pdf. Updated 2018.

5. European Parliament. Free movement of capital. https://www.europarl.europa.eu/RegData/etudes/fiches_techniques/2013/030106/04A_FT(2013)030106_EN.pdf. Updated 2022.

6. Publications Office of the European Union. Purchasing property in other EU countries. https://eur-lex.europa.eu/legal-content/EN/LSU/?uri=CELEX:12016E063. Updated 2017.