The search continues

The Scottish Government finally published its long-awaited Land Reform Bill last week, following a three-month delay to enable Ministers to give the legislation “further consideration and ensure we get the proposals right for introduction”.   If ‘getting the proposals right’ was about doing the minimum to give the impression of radical action while barely shifting the legislative dial on land reform in practice, then it’s mission accomplished.  If, on the other hand, the Bill is intended to provide the ‘turbo-charge’ for land reform that the incoming Chair of the Scottish Land Commission, Michael Russell, publicly called for prior to his appointment to that role, then he and others looking for substantive and progressive policy change are likely to be disappointed by its contents. 

The most attention-grabbing elements of the Bill, heavily trailed in ‘Land Reform in a Net Zero Nation’, the Government’s July 2022 consultation paper on potential provisions for inclusion in the legislation, relate to the management and transfer of ownership of large land holdings.  The consultation paper proposed a notification requirement about possible transfers of such land to eliminate off-market sales and enhance transfer transparency, as well as a built-in presumption in favour of a community right to buy the land in question. Crucially, it also proposed introducing a Public Interest Test on such holdings at the point of transfer.    Other proposals for consultation included making Land Management Plans compulsory for large land holdings to increase transparency and community engagement regarding land use, and measures to strengthen the currently voluntary Land Rights and Responsibilities Statement, introduced in the Land Reform (Scotland) Act 2016.  

A major bone of contention regarding all of the above measures has been the Scottish Government’s proposed 3000 hectares threshold as a criterion for triggering any of them in practice, with most respondents to the 2022 consultation arguing that the figure was set too high to effect meaningful change.  

The Government has shown willingness to move on aspects of the land holding threshold, which has been reduced to 1000 hectares for the Public Interest Test, transfer notification requirement, and presumptive community right to buy.  That’s a step in the right direction but the threshold needs to be halved to 500 hectares to have a hope of even denting Scotland’s unusually concentrated pattern of predominantly private rural land ownership.  There’s also no obvious reason why the proposed 3000 hectares threshold for Land Management Plans, to which the Government remains wedded, should not be reduced to at least the 1000 hectares recommended by the Scottish Land Commission in its March 2019 ‘Review of Scale and Concentration of Land Ownership’ report to Scottish Ministers.  

Beyond issues of threshold metrics, there are more fundamental questions about what the Land Reform Bill’s flagship large rural land holdings provisions are likely to achieve in practice if left unamended.  The Public Interest Test, now rebranded as the more benign sounding ‘Transfer Test’ in the legislation, will prohibit the transfer of all or part of land holdings of more that 1000 hectares taking place without a Ministerial decision on whether the land to be transferred should be sub-divided into ‘lots’ to be sold to different purchasers.  

The Transfer Test could potentially lead to more diverse land ownership, as a consequence of the ‘lotting’ provisions.  However, left unamended it could paradoxically also lead to more concentrated rural land ownership, the exact opposite of what is supposed to be one of land reform’s core policy objectives.  

‘Land Reform in a Net Zero Nation’ alluded to a 2019 report on behalf of the Scottish Land Commission highlighting that Scotland “is […] unusual in having no constraints on who can own land, or how much they can own”.  The proposed Transfer Test will do nothing to change that because it is silent on the issue of potential purchasers of the land in question, assuming no presumptive community right to buy is exercised.  That’s a gaping hole in the Test in terms of ensuring that the Public Interest is comprehensively served.  It’s also a green light for relatively recent entrants to the rural land market to continue accumulating holdings at the turbo-charged rate of, for example, Gresham House, a London-based asset management company, calculated by land reform campaigner, Andy Wightman, to be the fifth largest private landowner in Scotland, with aggregate holdings of 53,783 hectares spread over 161 separate landholdings.    

The Bill will also establish a Land and Communities Commissioner within the Scottish Land Commission, with responsibilities for overseeing the new obligations on landowners in relation to Land Management Plans and the Transfer Test.  That is a sensible idea, but the new Commissioner’s enforcement powers will be limited, to put it mildly.  Breaches of the community engagement obligations contained in the Bill may result in fines of up to £5000, presumably based on how egregious such breaches are in practice.   There are also excessively tight constraints on who will be eligible to report alleged breaches in the first place. 

In its 2021 discussion paper on legislative proposals to address the impact of Scotland’s concentration of land ownership, the Scottish Land Commission recommended that sanctions for breaches of what it termed Land Rights and Responsibilities Reviews should, in addition to the imposition of fines, also include scope to dispose of assets (either voluntarily or by a compulsory mechanism), and cross-compliance penalties such as withholding public funding.  The Bill contains nothing on either of these measures, although its Policy Memorandum states that measures being brought forward in the Agriculture and Rural Communities Bill will enable Scottish Ministers to attach certain conditions when providing financial assistance.  Whether such conditions bear any resemblance to the Land Commission’s proposal remains to be seen. Meanwhile, the crucial issue of land taxation has been shunted into the long grass of a Scottish Government tax strategy to be produced at some indeterminate future point.

The Scottish Parliament’s Rural Affairs and Islands Committee is the obvious choice to lead scrutiny of the Bill as it progresses though the Parliament’s second of three legislative stages.  All the more so, given what land reform campaigners will see as the glaring omission of any urban dimensions in the Bill’s provisions.   Once the Bill has been formally introduced to Parliament the inescapable politics of land reform will snap into sharp focus.  If the SNP-Green Government refuses to countenance a radical overhaul of the legislation when amendments are inevitably tabled during its committee stage, that will be a powerful signal that Scotland’s much vaunted land reform journey is losing direction as well as momentum under its watch.     

Dr Calum MacLeod is a freelance sustainable development consultant and writer.

Website: calummacleod.info