The Scottish Government’s Land Reform Review Committee has just published its final report.
It had issued a shockingly slight interim report just under a year ago in early June 2013, which For Argyll described it as ‘an empty envelope addressed to a dead letter box‘. This came at a time of internal chaos in the group, whose membership was fluctuating, to say the least – it was down to one. The omens for the final report were not good.
Three new members were appointed, as was Robin Callander as special adviser.
No one could have imagined that the reconstituted group could have done so much and such very different work in such a short time. Robin Callander is credited with getting the momentum going, with three ’round table’ sessions held between the group members and the team of advisors. These, though, did not involve a comprehensive collective discussion of all of the issues. This could, in part, account for the erratic internal coherence in the published final report.
Able to draw little, if anything, from the interim report, the final report has clearly begun again – from scratch – and has done the entire job of the group in short order. Some of the report’s sections offer, in passing, intriguing detail – like the one on ‘Ownerless Land’. Such material is a bit of a siren song and we confess to being lured away for a time from our focus on getting to grips with the report.
Macro issues
The report is not perfect. So much, done so fast, is going to have its cobbling together, its inconsistencies, its clutter, its less considered propositions, its reliance on short-cuts in ‘dog-whistle’ rhetoric.
Styles, attitudes and approaches vary wildly throughout the document, from the objectively academic to polemical stump oratory, from the concise to the laxative. This indicates multiple authorship, with whole sections clearly devolved to different people to produce in their entirety.
The lack of philosophical, conceptual and tonal strategic unity weakens the report. It demonstrates the impact of specific influences pulling aspects of it in different directions – sometimes asymmetrically. There is no evidence of any kind of the necessary final editorship. Responsibility for this must lie with the Group’s chair since its inception, Dr Alison Elliot, former moderator of the Church of Scotland.
Some matters – like the recommendation to end the Crown Estate Commissioners’ involvement in Scotland and devolve its powers to the Scottish Government are given as no more than undefended declarations – as in the simple statement that doing this ‘would deliver wide ranging and important benefits to Scotland’. While few, if any, would argue with this recommendation and virtually all, including ourselves, would welcome its implementation, it is the duty of a report commissioned by the state to provide the detailed reasoning for its conclusions, rather then simply confirming what might be no more than prejudiced popular opinion.
While the shortage of time available to publish the final report will have impacted on its production, the result suggests a pragmatic approach to ‘getting it out’ which has skipped inclusive internal negotiation to arrive at what ought to have been conscious and finessed consensus. This is a very serious fragility in the report and in its recommendations, but it does account for much of its internal inconsistencies.
However, inconsistent as are its voices and worldviews; and heavily politicised as it inevitably is in the current climate – the report offers the genesis of genuine social change, which, where it is judicious [and it is not always so], is imaginatively supportive of communities determined to achieve sustainability, in urban as well as rural contexts.
The matters we have chosen to focus on seem to us to be critical – but do not imply that those we cannot take even more space here to consider are less valuable and less provocative of thought. It is the strength of the report that the opposite is the case. We could profitably spend serious time on almost all of this.
Community development, land and property ownership, housing and state support
The range of proposals the group makes around supporting community land and property ownership are largely thoughtful and alert to the difficulties of exercising such responsibilities ably. This substantial body of the document recommends:
- ‘… there should be a clear focus in public policy on supporting appropriate local community bodies that are owned and managed by local communities acting on their own behalves’
- ‘Trust Ports and other forms of local community control over harbours, piers, slipways and similar coastal assets should be encouraged as a form of community land ownership’
- ‘… the government should develop a policy statement, with clear direction to all parts of Government and its agencies, on the objective of diversified land ownership in Scotland, and a strategic framework to promote the continued growth of local community land ownership’
- ‘… the statutory land rights of local communities should include a right to register an interest in land, the existing right of pre-emption over land and a right to buy land, as well as rights to request the purchase of public land and to request Scottish Ministers to implement a Compulsory Purchase Order’
- ‘Local Authorities should have the right to exercise a Compulsory Sale Order over an area of vacant or derelict land, and also that Community Councils, or appropriate community bodies, should have the right to request that a local authority exercises a Compulsory Sale Order’
- ‘… the Scottish Government should ensure that there is an integrated legislative and financial support structure to help local communities in urban and rural Scotland buy and develop land and buildings’
- ‘… an adequate level of [state] funding should be made available to meet an expected increase in demand for local community land ownership.’
- ‘… the Scottish Government should publish new Guidance on State Aid to ensure public bodies take a more solution-focused and less risk-averse approach to their interpretation of the Rules’
- ‘… the Scottish Government should have a clear policy framework for the disposal of public property to appropriate local community bodies by the Government and associated public bodies, including a more integrated and focused approach to disposals for less than open market value where that is in the public interest’
- ‘… there is significant potential community benefit in the transfer of selected local authorities’ assets to communities. The Group recommends that all local authorities should have a ‘Community Assets Transfer Scheme’ to encourage greater local community land ownership’
- ‘… communities embarking on land and property ownership and management require considerable support. The Group recommends that the types of support services provided in the Highlands and Islands should be made available to local communities in the rest of Scotland’
- ‘ … the Scottish Government should establish a Community Land Agency, within Government, with range of powers, particularly in facilitating negotiation between land owners and communities, to promote, support and deliver a significant increase in local community land ownership in Scotland’.
In some instances the group has been less radical than it might have been. It advocates – very constructively – an enhanced strategic use of Compulsory Purchase Orders to address what it calls ‘the persistent challenge of vacant and derelict land in urban areas’ and where there is clear public interest. But where communities are blighted by neglected and often derelict sites and buildings, it advocates the use of Compulsory Sale Orders – where straightforward public seizure would often be justified, fair and effective.
On this matter, the report fails to address the – not seldom – occasions where local authorities themselves are guilty of neglect in their responsibilities as property owners. It’s not hard, in Argyll and Bute, to instance examples of this – but Castle Toward in Dunoon, the Clock House outside Lochgilphead and Kilmory Home Farm will do for the moment. Who polices the derelict property police? Who can seize a neglected public asset owned by a local authority? Who can issue a Compulsory Sale Order in such an instance?
However, a major advance is the report’s pushing the right of councils to take possession of neglected buildings and land and reallocate them in the interests of community sustainability.
A warning note has to be sounded here in the failure of the report to allow for the corruptibility of human nature. It recommends that communities should be empowered to request a council to enforce a Compulsory Sale Order. This does not close the door on a powerful community figure with influence in the council motivating his or her community to make such a request, resulting in the council making a Compulsory Sale Order – pounced upon by a developer friend of the initiator – for some consideration. Several of the recommendations of the report would require protection against potential abuse, since what can go wrong does go wrong.
Overall, the care taken in the team’s considerations to provide not only the mechanisms for community ownership of land and properties but to provide the necessary support to community landowners in medias res, is a constructive and welcome recognition of the complex and profound demands of such responsibilities. This will have been informed by the experience and by the analysis of the experience of existing community buyouts.
Missing link in community development propositions
The weakness in the community-focused heart of the report – its best and most important work, includes a failure even to acknowledge, never mind address, the fiscal and political impact its combined proposals would have. As they stand, these would produce an old style ‘command economy’ centralism of the defunct soviet era, which simply cannot be funded.
There is no parallel interest yet in exploring revenue generation from such community ownership initiatives; or to conceive of them as necessarily required to be self-supporting and evolving. The unspoken assumption is that they would not and could not be so, with the report, as quoted above, recommending that: ‘…there should be a clear focus in public policy on supporting appropriate local community bodies that are owned and managed by local communities acting on their own behalves’.
This is a transparent expectation that community land ownership will entail continuous state subsidy. The report requires of the Scottish Government a commitment to provide that continuing subsidy. Such a policy would embed the breeding of a dependency culture rather than the entrepreneurial one that can fuel the creation of jobs with serious career development potential.
There is secondary thinking to be done here.
The housing recommendations – thinking beyond the foundations
Some sections of the report have delivered this secondary thinking, with the important focus on housing notable here. The recommendation that ‘encouraging and supporting the development of a vibrant self-build sector should be an explicit aim of a housing strategy in Scotland’ is a smart, practical, enabling and achievable initiative, aimed into the long term.
The request for the establishment of a Housing Land Corporation, given ‘performance targets’ as ‘a new national body charged with the acquisition and development of sufficient land’ to achieve the housing objectives and a developed self-build capability, is again thinking practically and operationally into the future.
The report’s request here for strategic support of ‘hutting’ as part of the response to the housing crisis is consistent with its proposition on the strategic development of self-build. The embrace of ‘hutting’ is fresh, achievable and welcome – although it is surprising that Argyll’s quite recent experience of a major and terminal collision on hutting between a community at Lunga and the local council appears to be unknown.
Inheritance rights changed to break up established landholdings
The Scottish Government, in liaison with the Scottish Law Commission, is asked to develop proposals for legislation to end the distinction between ‘immoveable and moveable property’ in Scotland’s laws of succession.
This relates to the specific passing on of land to a blood heir, which remains law in Scotland.
Land and whatever is attached to it – like buildings, wind farms etc – is classed as ‘immoveable’, with a spouse and children, other then the heir, having no rights of inheritance over it. Spouse and all children have rights over ‘moveable’ property, which is effectively everything else but land and what is attached to it, except for special provision made in the case of a family home.
As the Scottish Law Commission has pointed out in previous work it has done on the issue, this statutory position gives rise to the daftness that a spouse and children have no inheritance rights over land [immoveable property] but do have inheritance rights on shares [moveable property] in a company owning the same land.
The LRRG, like the SLC, also want to see the removal of this legal distinction between immoveable and moveable property. This seems rational and fair.
However, not all of the consequence may be positive.
While there is an issue of fairness, this is also a highly political move which can legitimately be read as ‘Robin Hood by the back door’, in the sense of effectively enforced redistribution of land. Inheritance rights of all children and a spouse – or of an heir and a spouse – will lead to landholdings having to be broken up, sold to deliver the value of the wider inheritance rights that would result.
The ‘social justice’ agenda that wants to see such breakups happen as a matter of course, is closer to doctrinaire socialism and blind to the advantages of stability that can – but not always – result from the unity of a landholding.
A bad landlord is a bad landlord, regardless of whether they are a private landlord, a community landlord, a corporate landlord, a major landlord or a minor one. There are plenty of good and bad examples of each of these. Simplistic nostrums are always to be avoided.
Scale matters in commercial sustainability and in the extent to which one part of an enterprise may internally subsidise another. It is not in the national interest for the commercial sustainability of land to be reduced. Removing the distinction between immoveable and moveable property will, on occasion, lead to reduced productivity and on others, improve it. It is no sliderule certainty, either way.
The other risk in the proposed move is that, in the phenomenon of unintended consequences, this could be the start of later legal impediment to parents passing on to their children the fruits of the efforts of their own lives. Were this to happen at any point, it would be significantly damaging, even to GDP. Many individuals work harder and longer simply to be able to give their children a better start in life than they had themselves. Without that visceral motivation, would they work so hard to benefit the state?
We are not suggesting that this LRRG proposal is ‘wrong’. We are saying that this issue is a very finely balanced one which requires judicious and skilled finessing in how it is addressed. It ought never to be decided upon in political circumstances such as those in which Scotland finds itself today.
In a balanced society, justice – social and otherwise – is an equal right for all. We are in danger of forgetting that.
Statutory limitation on land ownership
This is one of the most polemical passages of the report; and is poorly defended in evidence and reasoning, sometimes not at all. This is one of the examples of where the necessary but absent final editing would have toughened up the intellectual stance of the report as well as creating its consistent style and voice.
In addressing ‘The pattern of rural land ownership’, the report recommends that: ‘there should be an upper limit on the total amount of land in Scotland that can be held by a private land owner or single beneficial interest. The Group recommends that the Scottish Government should develop proposals to establish such a limit in law’.
The report also declares: ‘The Group considers that there is a scale at which the ownership of a large extent of Scotland’s land by one private owner should be considered inappropriate, and contrary to the public interest.’
The indicative expression here is that such a phenomenon ‘should’ [given above in our emphasis] be considered inappropriate, implying a moral or political judgment as opposed to the reaching of a rational conclusion to the collection and testing of evidence.
There is no attempt to address the crucial issue of what the proposed ‘upper limit’ should be – or even by what process it might be distilled. It is a cop out simply to recommend, as it does, that ‘the Scottish Government should develop proposals to establish such a limit in law’.
It is a matter of concern that the Group failed to interrogate these proposals properly – even to make sure that team members and advisers had discussed them together, had come to a collective consensus and were all aware of their nature and consequences – none of which we understand to have been the case.
The obvious lack of interrogation of this issue has left a wide variety of thought-provoking consequences unconsidered.
The philosophical difficulty that arises if you see fit to set a limit to how much land anyone can own, is that, by the same mindset, you open up the issue of setting limits to almost everything.
- How much ‘should’ anyone earn – and therefore own?
- How much living space ‘should’ anyone have?
- How many spare rooms ‘should’ anyone have – an ironic angle on the bedroom tax issue;
- etc
The setting of limits stifles ambition – what do you do when you reach your limit?
And if landholdings and land-holding based enterprises are to be limited in size, we will progressively lose the management capability to shape, direct and scrutinise operations and events of scale.
The imposition of limits on the scale of land-ownership would, almost inevitably, breed a highly centralist, essentially communist command society – which itself chokes the innovation and growth without which a nation state stagnates and may fail.
Just as our indiscriminate retreat from the competitive has taught us, in its absence, to understand the value of competition in driving individual and corporate progress; so the imposition of ceilings upon ambition, as this proposal effectively recommends, would teach us, also too late, that ambition is the engine of the supply chain for a well resourced state and a successful economy – and that risk is the spur to concentration.
One serious likely consequence of this proposal, as it stands, is the stasis-to-decline continuum that would follow the parallel removal of the element of risk and the imposition of limits to entrepreneurial ambition.
Then there is the trick question
If a way of defining an defensible limit to land ownership could be found, what would be the position of, for example, our largest national landowner, Forestry Commission Scotland?
The simple fact of being state owned could offer FCS no protection against the onset of whatever it is that the report’s authors see as the crippling of a just and productive society inflicted by the fact of someone or some corporate entity owning more land than ‘the limit’ would dictate.
If we can conceive of a defensible value in such a very large volume of land being owned and manged by a single source, there is no defence for the recommendation to impose a statutory limit on land ownership.
Or are we looking at the other soviet characteristic of one set of rules for the people and a very different one for the state? That would be a terminal cul de sac for an emergent and hopeful state.
Intended but unacknowledged consequences
The cluster of concerns in the report, focused on community sustainability, are the heart of it.
They would produce huge cultural change which would be no bad thing – but the impact of such change, which must have been understood within the team, has not been acknowledged or addressed in any way.
Change of this order is potentially destabilising for a country and for individuals. This cannot be left to the ‘suck it and see’ outcome that is all that is available here.
With this report being a genuine imagineering of a new society, the next report – now imperative – must confront the nature and management of the social change these recommendations would engender.
It must also address the concern that if the recommendations of this one were implemented, it would involve the allocation of continuing and substantial financial and parliamentary resources to a relatively small portion of the population and would contribute little to the country’s crucial economic growth – without which there is nothing.
We need not be so unevolved in our thinking as to perpetuate a binary choice for a nation between social justice and economic growth. Both, simultaneously and bonded, must be possible.
