Land Reform Requires Democracy
Craig Dalzell – 16th September 2022
The Scottish Government is currently consulting on a new Land Reform Bill. The consultation closes next week so while there’s still time for you to submit your own response there isn’t much and you should get it in as soon as possible. We’ll be publishing our own response next week. In brief, the Scottish Government’s proposals are that Scotland should better regulate large-scale landholdings by forcing them to comply with the already existing but voluntary Land Rights and Responsibilities Statement that recommends actions to better care for land. The proposals suggest that a breach of the statement could lead to fines or cutting off access to Scottish Government subsidies.
The proposals also suggest that large-scale landowners regularly submit a Land Management Plan laying out, amongst other things, how the owner(s) will use the land, how that land use will contribute to “Net Zero” and how they will engage with the local community on reaching the goals and objectives they lay out for the land.
Finally, there will be some additional regulations on the market for land with large-scale landholdings that are up for sale having to meet some additional requirements such as notifying the community that the land is up for sale and applying a “public interest test” to the sale to ensure that the inequities created by Scotland’s problematic land ownership patterns aren’t exacerbated by the sale.
The kicker in all of this is that the Scottish Government are proposing that these regulations only apply to “large-scale” landholdings and not at all to those which do not meet the minimum threshold. The Government has proposed to set that minimum threshold at 3,000 hectares (roughly half the size of Dundee) though they may also consider applying it to land that covers a certain percentage of an island or council ward. We do not accept the Government’s reasoning that they can only afford to regulate “large” estates and must set the threshold high enough to limit the amount of work they have to do. Whichever government department ends up being in charge of regulating land should benefit from the revenue of land taxes and from fines and levies for breaches to those regulations. Land reform should be, at minimum, self-funding.
We believe that these criteria don’t go anywhere near far enough to enact meaningful land reform and the criteria around “large-scale” landholdings certainly fail to protect communities from the harms caused to them by the lack of land reform.
Fortunately, we have a natural experiment unfolding in front of us that can be used to illustrate the effectiveness of these reform proposals. Last week, it was announced that Tayvallich Estate in Argyll has gone on the market following the death of the estate owner Catherine Pollock. The local community is concerned that if a private developer buys the land then it could result in the community being cleared off the land to make way for holiday lets and they are now faced with trying to scrabble together £10.5 million before November to buy out the 3,500 acre estate. The community is preparing to ask the Scottish Land Fund for up to £1 million to help out but has been warned that due to the tight timescales the grant is unlikely to come in time.
This is the same old story of communities being the last to find out about these land sales and being unable to do anything about them because they are forced to pay inflated “market rates” for the ground underneath their feet. I wish them the best of luck but as with previous community buyouts in Scotland, I really wish that they did not have to go through the pain, stress and uncertainty being caused to them now
Let’s tie this into the Scottish Government land reform proposals though. As it is, the land reform consultation closes next week, legislation will come to Parliament between September and December 2023 and might get passed and ratified within a year of that with the provisions of the bill coming in at….some point possibly several years after that?). But instead, let’s imagine that the provisions were already in place, active and ready to be applied to this estate sale.
The first problem is the size of the estate. At just a little under 3,500 acres, the estate does not meet the 3,000 hectare (7,413 acre) threshold being set by the Scottish Government. The estate contains a small island but it isn’t what we’d normally consider an “island community” so the provision over the percentage of the island’s land covered by the sale doesn’t apply. And Scotland’s Local Authorities and council wards are far, far larger than their counterparts in any of Scotland’s neighbouring European countries. Scotland has council wards that are larger than some European countries. We have island communities whose most local level of statutory government is effectively a part-share in a single councillor. Mid Argyll ward covers an area of 83,800 hectares so this estate “only” covers 4% of it. In our response we’ve suggested that estates should be considered “large” not just if they cover 3,000 hectares but if they cover at least 25% of an island or a council ward. We’ve also made it absolutely clear that this stricture is inadequate and in this example we can see why. Land Reform cannot – cannot – happen without wholesale democratic reform in Scotland and the restoration of the kind of municipal democracy that the rest of Europe considers “normal”. Common Weal has already published a blueprint for how to create this kind of democracy and I’ve spoken in public about how Scotland compares to our neighbours in terms of our lack of democracy.
Instead of asking if an estate covers a sufficiently vast chunk of Scotland before asking if there should be a public interest test in its sale, that public interest test should be applied to ALL land transfers that involve someone selling land beyond their primary house and its garden. We’ve looked at Scotland’s “Right to Roam” laws and essentially said that the tests and regulations should apply all of the land where we, the public, have the right to be if we wish (though we’d also extend it to some exemptions to that list such as commercial forest and mine workings). The interested public should, of course, primarily be the communities who live and work on this land but it shouldn’t exclusively extend to them (the consultation asks if only those with a connection to the land should be able to report breaches of environmental regulations by the landlord and we obviously disagree). The main point is that unless the community has an active, statutory and democratic voice they will not be able to determine if a land transfer happening under them is in their public interest and this is just as important whether the landlord owns ten hectares or ten thousand.
The final point I want to bring up in testing this estate sale is the cost to the community and to the public purse whenever a community wants to buy out the land they live on. The Scottish Land Commission recently reported that the average sale price per acre on Scottish estates had increased from approximately £1,270 per acre of estate sold in the five years up to 2020 to £2,250 per acre in 2021. This estate is on the market for the equivalent of £3,008 per acre. At this price, if a community anywhere in Scotland wants to buy out what the Scottish Government suggests defining as a "large landholding" then they would need to find more than £22 million. The most expensive community buyout in Scotland so far was for just £4.5 million. Every estate valuation is, by its nature, individual but if we assume that the estate in question here has risen in price at the same rate as the Scottish average then had it come on to the market five years ago, the community may have been faced with having to raise less than half of the amount they need to find now. That money – whether from the community, from public donations or from the Scottish Government, is going to go straight into the pockets of the sellers who have inherited this land.
This can’t go on. Communities simply can’t afford to keep up with a land market that is being driven into the stratosphere by often foreign “investors”. In 2020, around 1/3rd of estate sales were to non-Scottish domiciled individuals and the demand for this kind of sale is only increasing due to the Scottish Government encouraging people and companies to buy land to greenwash their polluting activities elsewhere through the sale of carbon credits.
We instead propose that communities shouldn’t have to pay a “market rate” if the public interest test deems that the land should be offered first to the community. Instead, a “fair” price should be determined that takes into account things like recent unearned land price inflation, the cost to the community to repair and restore land damaged or not maintained by the previous owner, a compensation charge to the community for having to live on damaged land and possibly reparations for previous injustices such as Clearances where a present owner (whether a direct descendent of the perpetrators or not) has not already acted to correct them. Rather than public money going to the landlord for the community to buy the land and then discover that they can’t afford to make the repairs required, the landlord’s discounted sale price would allow that public money to go to the community who would go about repairing and restoring the land.
A similar attitude should be taken towards landowners who are not selling. We propose that the Scottish Government should immediately halt public subsidies to landowners as an incentive to carry out environmental work. Instead, the “good behaviour” should be mandatory and part of the rights and responsibilities placed upon landowners and the Scottish Government should offer to buy an equity stake in the land should the landowner need to free up some capital to make those restorations happen. The revenue from the restorations, rather than simply being pocketed by the landlord as is the case at present, should be granted to the local community Common Good Fund in proportion to that equity stake. Not strictly an ideal solution but it would be a relatively quick way of restoring at least the benefit of land effectively to the Commons after centuries of enclosure and capture.
There’s far more in the consultation that I don’t have space here to talk about (such as tax dodging loopholes in the proposals or the impact on urban land) so please do check in next week when we publish our response or, even better, look at the consultation yourself and get a response in before the 25th of September. Previous attempts to reform land in Scotland have all failed because the Government was not brave enough to take on the challenge to its full and to finally break the disproportionate power of a lobby that, by definition, represents one of the smallest demographic groups in Scotland. The democratic reforms we’re calling for in particular are absolutely essential to reforming land. If the 450 people who own half of Scotland have more say in how the Government regulates that land than 450 random voters or if one landlord has more say than the entire community they are lord over then they have a privilege that should, must, be challenged. This is your chance to do that. Please, please take it.
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Note: The image used to illustrate this article was entirely created by me using the AI Image Generator Stable Diffusion. I intend to write an article for a future newsletter on the ethics of AI art so please send me your thoughts on that emerging topic.