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LAND TENURE AND USE

Church and Nation Report
to the 1998 General Assembly of the Church of Scotland

Introduction

The general Assembly of 1997 passed two related Deliverances. The first asked the Committee to "note with interest the development of the Assynt Crofters’ Trust and the Isle of Eigg Trust and instruct the Committee on Church and Nation to follow the developments as closely as possible and report thereon to a future General Assembly". The second invited the Committee " to show its concern for tenants being given notice to quit from a country estate by investigating the legality and morality of security of tenure, and related issues, as they affect landlords and tenants on country estates and to report to a future General Assembly."

The Assynt crofters began the campaign to secure their land when the bankruptcy of a Scandinavian finance company seemed likely to see their land parcelled out among speculators or sportsmen, the more interested of whom flew in by seaplane or helicopter to assess the lie of the land. The origins of the Isle of Eigg Trust can be traced to the moment when a divorce court instructed the sale of the island so that the then laird’s estranged wife could receive her share of the proceeds. The tenants of the Park estate found their security counted for nothing (in law or in practice) when their new landlord found it expedient to increase the value of his land by offering it on the market free of tenancies to meet death duties.

These three well publicised cases, however, illustrate only certain aspects of the wider problem associated with land tenure and land use in Scotland. The problem has many facets, some extremely complex, affecting both rural and urban communities and posing fundamental questions for the Church.

Theological Perspectives

Images of land and struggles for land are powerful parts of the story of Scotland, from which the Church often emerges without some credit. At the time of the Clearances, it was the Kirk which taught the Glencalvie people that they (rather than those evicted them) were the wicked generation.

We therefore approach this subject with humility, recognising that the Church cannot claim to have all the answers. We do our theological reflection alongside others who care about the issues and, especially, those who are directly involved where they hurt. Yet we also see this issues of land tenure and use in Scotland today under the horizon of another story.

"The earth belongs unto the Lord
And all that it contains
(Except the Western Isles alone
And they are all McBraynes)"

The report While the Earth Endures begins with "the splendid ringing affirmation of the relationship between all creation and its creator" from Psalm 24; its analysis of responsible land use rightly started from a powerful assertion of God’s ownership of the earth, rooted in the story of creation. But claims of divine ownership can bring cold comfort if the realities of life are constrained by ferry timetables and fares, by a land market that sees those who live on the land as a nuisance, by landowners pushing the law to its limit to gain a profit, or by the frustrations of urban life without space for children to play. How can we reflect such claims in ways that engage with the problems and injustices of the present system where it hurts?

The last time the Committee examined the issue (in 1987) the key principal was seen as stewardship. If the earth is the Lord’s, those who hold land do so in trust, with responsibilities to God and, therefore, to those who depend on the land today, and to future generations. This sense of trusteeship or stewardship is very much part of the way many landowners in Scotland express their role, contrasting with the more explicitly commercial interests of some individual and corporate landowner.

Such concepts have their limitations. Stewardship has been associated with a man-centred view of the world in which the non-human world is seen purely as a resource for human beings and with the sense of man’s dominion which has brought about so much ecological damage. It has also easily been translated into a view of the laird as a steward not only of the land but also of the people, rather than viewing the whole community as stewards of the land.

But there are still valuable insights to be drawn from the Biblical understanding of a stewardship of land, running contrary to the idea of land as a commodity. If impatience with the feudal system of land tenure fuels the debate in the direction of a more straightforward form of land ownership, with absolute ownership rights untrammelled by restrictions that belong to a different culture, the concept of stewardship may help to safeguard elements of conditionality. Absolute ownership of a part of God’s creation makes no sense in the context of recognising that creation as a gift. Whoever has legal title to land has obligations, those who depend on that land, the community at large, to those yet to come, and to the land itself as valued and created by God. The problem is how to give effect to these obligations and corresponding rights in a creative way within a reformed system of land tenure, while also recognising the rights attaching to legal title to land.

The Biblical story has other dimensions that take us further into the debate. Land is not only given, it is promised. The Old Testament covenant brought land and people together under God; the covenant gave effect to God’s commitment to both, as part of the history of salvation; it demonstrated that the people’ possession of the land was conditional; and it was within that covenant that jubilee justice demanded the restoration of land to the evicted and the landless. From the beginning, the covenant is bound up with the land that is promised (Genesis15:18) when it is renewed, that is bound up with restoration to, and of, the land (Isaiah 49:8). The relationship between the people and the land is seen as reciprocal - the people belong to the land as much as the land belongs to the people, or, as Lewis Grassic Gibbon puts it, the folk are The Land in as great a measure.

In the Biblical narrative, when the covenant turns sour the effect of that is felt on land and people in ways that echoes in the story of land in Scotland. The Clearances involved the forcible removal of the people from their ancestral lands and saw much of the Highland land denuded of people, a reduction in bio-diversity, large tracts of land turning into deserts, and a growth in inequality between wealthy land owner and displaces urban and rural poor. The prophets explain the division and conquest of the land, the exile of the people and the gradual desertification and loss of fertility in the land resulting from neglect of the conditions of the covenant. Thus, many Highland land reformers have drawn inspiration from this story as they have developed a theology of liberation, rejecting patterns of land-ownership that have cleared the land of people and of bio-diversity.

When we hear of modern Clearances across the world in Mexico and Brazil, in Drumoak and elsewhere, and of communities at the mercy of a land market that is in many ways a lottery which those living on the land are least likely to win, we recognise that there are demands of justice here - the jubilee justice which restores to people the land they need in order to survive. The laws of Sabbath (for land and people) and of Jubilee provide for a reversion of alienated land to the clan (on the assumption that debt is the likely reason for land being sold) representing a decisive breaking into the spiral of injustice with, crucially, provision of resources for a new beginning.

There may be much to be learned here from other cultures. The native American Testimony of Chief Seattle shares with the Book of Leviticus a profound challenge to the capitalist understanding of land as a commodity that can be bought and sold; both realise that the question who owns this land is a profoundly spiritual one. In the building of the new South Africa, too, similar ways of thinking are engaging with Biblical views of land in a spirituality of land, with no dichotomy between the spiritual and the physical, which holds land, ancestor, current and future generations together with God.

While talk of a spirituality of land might sound a bit far fetched to urban Scots denied access to the rural countryside, there is a resonance with the Highland feeling for the land that is at once both highly practical and bound up with the history of a people and legacies of abuse that are there for all with eyes to see it. It is Calvin who tells us to view the world as the beautiful theatre of the glory of God in which we should take pious delight. Of course pious delight may mean different things to those in different relationships with the land, but even those who are one step removed from a rural closeness to the land, still have a sense of landscape that is part of what we understand as Scotland.

A spirituality of the land would involve a respect for the land that goes far beyond seeing it purely as a resource for people. The land is deeply embedded as part of our cultural identity as it was for the Old Testament people of God. The struggle for democratic control over the factors which determine people’s lives has to be concerned with land issues, and in a way that takes the debate beyond the confines of legal, economic and scientific concerns.

These perspectives influenced the Committee as it examined the problem, conscious of the link between land tenure and land use and the influence other factors have had in the development of land. The Committee recognised that, to be faithful to the insights arising from an understanding of the covenant relationship between God, people and land, any reform needed to preserve in some form the element of conditionality which is part of existing land tenure and which limits the absolute rights of owners. This conditionality, however, needs to be recast to reflect contemporary environmental and social responsibilities, including the fostering and enabling of sustainable development, which are bound up with ownership of land. Further, the Committee considered it essential that any reformed system had to be able to accommodate the different demands on land tenure in both urban and rural areas.

The Scale and Complexity of the Problem

Ownership is perceived to be at the heart of the problem. If you own the land (as the people of Assynt and Eigg now do), so the theory goes, you cannot be exploited. The factors which permit exploitation of peoples and the exploitation of the land, however, go far beyond the simple issue of ownership. It is necessary, for example, to examine the links between land tenure and land use where one finds different forms of land tenure and a range of social and economic factors which affect both land tenure and land use. The following is a summary of some of the key issues involved in the problem.

The Feudal System

The Scottish system of land ownership is unique in being the only system still legally classified as feudal tenure. All rights of land ownership derive from the Crown (known as the Paramount Superior) which is the ultimate owner of all of Scotland. All other landowners are known as Vassals (or Feuars) and the essential feature of the feudal system is that the relationship between the Crown and its feuars need not be direct. Certain rights are reserved by the Crown but anyone disposing of land may retain an interest in that land, thus becoming the feudal superior of the new owner.

The fact that a superior can continue to control the way in which land is developed long after its sale can cause major problems where a new owner requires the superior’s consent to vary a burden and either the superior withholds consent for frivolous reasons, demands an unreasonable sum of money for giving consent or simply cannot be traced. In addition, it has been possible for a Raider of the Lost Titles to make a fortune by exploiting (quite legally) archaic provisions such as leasehold casualty clauses, at the expense of innocent tenants. The term burden used here and elsewhere in the Report means any restriction, limitation or encumbrance affecting a property and is real where such an obligation is made to affect and is payable out of land.

The first major attempt to limit the powers of the feudal superiors was the Conveyancing (Feudal Reform) Act 1970, which, by providing recourse to the Land Tribunal, effectively prevented superiors from exacting unreasonable sums of money. The Land Tenure Reform (Scotland) Act 1974 prevented the imposition of new feu duties and provided for the redemption of existing duties but whilst many have been redeemed a large number remain outstanding. In any event the fact that a feu duty has been redeemed does not extinguish the relationship between feuar and superior.

There is widespread support for the view that Scotland’s feudal system of land tenure should be replaced. The Scottish Law Commission (SLC) in its 1997 Report proposed a new programme of law reform including related reports on The Abolition of Feudal Tenure and Reform of the Law on Real Burdens to be published by the end of 1998 and 1999 respectively. In respect of the abolition of feudal tenure this will involve refining its 200 page discussion paper published in 1991. This discussion paper set out the basic case for modernising land tenure in Scotland. It proposed making the way in which property is held simpler and more equitable, making the transfer of properties easier, quicker and cheaper, phasing out feu duties, the abolition of feudal superiorities, and the removal of various archaic ways in which land is held.

The SLC’s 1991 report and its report in 1998 will undoubtedly make an important contribution to the reform of land tenure. If, however, such reform is to meet the need for a system of land ownership that also embraces issues of land use which fully respect society’s interest in the land, then the SLC’s (understandable) narrow focus on matters governing the transfer of property in land needs to be widened. As Robin Callander observed, The replacement of the feudal system might have been conceived as a relatively narrow technical exercise, but it provides the opportunity for a much more thorough modernisation and reform of land tenure in Scotland.

The SLC’s 1991 Report also considered land tenure systems in some other countries but found none which could usefully or easily be utilised in converting our own system of land tenure from a feudal to a non-feudal basis. If, however, land reform is to encompass wider considerations then the Committee believes that international examples ought to be examined an offers one example in support of this contention.

The Norwegian Land Act 1995 has as its principal purpose to ensure that land is used in the manner that is most beneficial to society seeking an appropriate, varied system of use with a view to the development of the community and recognising that this entails taking into account the needs of future generations. To achieve these purposes the Act provides, amongst other things for: the drawing up of plans for the way land is to be used, orders preventing owners or lessees keeping cultivated land poorly maintained or under used, and a general presumption that cultivable land must be used to promote agricultural production unless operational or environmental disadvantages, the effect on the cultural landscape and the benefit to society outweigh such continued use. All these provisions carry the ultimate sanction of the possible expropriation of the land concerned.

Recording Ownership and the Concentration of Ownership

Scotland suffers from having no readily accessible and comprehensive data base showing the ownership of land. A basic requirement of any modern system of land tenure is an open and efficient method of recording ownership and rights over land. The current Register of Sasines is being replaced by a computerised Land Register which has the potential to provide a systematic register of every plot of land in Scotland giving its size, character, value and ownership but under present proposals is not expected to be completed for several decades. In the absence of such a Register Andy Wightman’s Who Owns Scotland is the only work which provides a reasonably comprehensive guide to the major land owners in Scotland.

It should be noted that the Church, mainly through the General Trustees, owns and administers some 7000 separate properties the great majority of which are functional ones (i.e. manses, churches, halls, etc). In addition there are some 14,840 acres of agricultural glebes, which, along with around 12,000 separate feudal superiorities, are held mainly for stipend endowment purposes.

The impact of the land tenure system influences the size and distribution of an area’s population. The Committee’s 1987 Report pointed up the problems associated with the ownership of land in Scotland being concentrated into fewer hands than anywhere else in Western Europe or North America. In 1995, 50 percent of land in Scotland was owned by 608 landowners ( representing 0.01 per cent of the population). In the same year, the public sector owned 12 percent (principally through the Forestry Commission) and the not-for-profit sector (led by the National Trust for Scotland) owned 2.39 per cent.

Such a concentration of ownership is particularly felt in the rural communities. Land is a basic resource of these communities and the power of a very few to control how land is to be utilised or developed (and, if tenanted, under what conditions) is enormous and made worse if the person is an absentee unaffected by local considerations, pressures or sanctions. The reform of the feudal system of land tenure will not of itself lead to a dispersal of ownership but a wider basis of reform should include elements which would bring about a reversal in the concentrated pattern of ownership over a period of time.

The Committee has no fixed views on how this might be achieved but proposals which might merit consideration include: measures to limit individual ownership to single holdings with upper size limits (such as exist in Denmark); the extension of the rights of tenants to purchase their land; the development of forms of community ownership; and the development of new approaches to the management of existing public land.

The Government itself extended the forms of ownership in November 1997 when it sanctioned, under the auspices of the Community Land Unit of Highlands and Islands Enterprise, the purchase of Orbost Estate by Skye and Lochalsh Enterprise. The enterprise company plans to build new crofts and small holdings with land being allocated on a basis similar to that used for the allocation of council houses.

Rural

Within rural Scotland there are at least five distinct types of area where very different considerations apply.

Agricultural holdings and tenancies

Agricultural land covers about 75 per cent of Scotland, of which 22 per cent is cultivated. About one-third of agricultural land is subject to tenancies. Farming is heavily subsidised. In 1994 it is estimated that 75 per cent of farming came from direct subsidies through the Common Agricultural Policy (CAP). This high level of subsidy, aimed until 1992 at intensifying production, combined with the heavy cost of operating modern equipment has been highly influential in how farm land has been developed and in skewing the pattern of ownership towards fewer, larger units.

Both the CAP and the EU Structural Funds will be reformed as part of Agenda 2000 which will determine the shape of the EU’s rural development programmes for the year 2000 and beyond. As the Committee’s Report of 1995 put it: Scottish Agriculture clearly has disadvantages and has the right to support from Europe’s funds, in view of the EU’s commitment to sustaining and improving rural society in less favoured areas. Although subsidies are not the long term solution, in the short to medium term securing a substantial measure of support from the EU will be a fundamental component of the land reform agenda in agricultural communities.

The majority of tenancies are governed by the Agricultural Holdings (Scotland) Act 1991 which allows the tenancy of a farm to be passed on within the family of the tenant. There are at least three matters under discussion concerning agricultural leases:

bulletLandowners are advocating a form of deregulated tenancies such as was introduced into England and Wales under the Agricultural Tenancies Act 1995 which, they argue, would encourage the release of surplus land and allow new entrants into the industry. Tenant farmers oppose unregulated tenancy on the grounds that it would erode current security and lead to increased rents.
bulletLandowners are also advocating the greater use of shorter-term leases to be effected by the landowner entering into a partnership agreement with the tenant for a limited period. Tenant farmers can obviously enter into such partnership agreements if they wish but they would oppose any change in the law which affected their existing rights.
bulletA substantial body of tenants have been pressing for a right to buy at a multiplier of the current rent, similar to that which exists fir Crofting Tenancies.

A further area of concern in any possible reform of Agricultural Leases is the need to widen the definition of permitted activities. If it were widened to permit integrated land use then activities such as woodland management, public access and leisure management would be included.

Forestry

Over the past 75 years Scotland’s woodland and forest cover has doubled and currently stands at some 3 million acres, or 15 per cent, of the Scottish land area. 1.2 million acres of the total is owned by the Forestry Commission. Since 1992 the Forestry Commission’s regulatory and grant-aiding functions have been carried out by the Forestry Authority, while Forest Enterprise has become responsible for managing its forest estate. The Forestry Commission has a statutory duty to achieve a reasonable balance between the needs of forestry and those of the environment. The two aims of current-day forestry policy are:(i) the sustainable management of our existing woods and forests; and (ii) a steady expansion of tree cover to increase the many diverse benefits that forests provide.

Almost all new planting is grant aided with the awarding of grants being dependent upon meeting strict criteria laid down by the Forestry Authority. Pursuing a sustainable development agenda argues in favour of such grants being made available for planting on farm land as an alternative to set aside an croft land. When he Committee considered forestry in 1987, it was concerned that much of the expansion of forestry was being driven by generous tax allowances largely utilised by the wealthy with tax avoidance on their minds. When the Committee re-visited the topic in 1989, it welcomed the removal, in March 1988, of the generous tax concessions to investors in forestry.

The concentration of the ownership of so much forested land by the state and large landowners is in stark contrast to the situation for example in Norway, Sweden and Bavaria. The figures in the following table argue the case for greater community involvement in the management of forests.

Percentage of land in Scotland Norway Sweden Bavaria
Agriculture(cultivated) 22% 3% 9% Unknown
Forestry 13% 22% 55% 35%
of which State owned 44% 13% 5% 34%
Private 56% 87% 50% 53%
Other (corporate)     45% 13%

There is substantial and increasing recreational use of both public and private forests but there continue to be problems concerning public access to forests sold by the Forestry Commission. In Norway and Sweden, however, there is a right of public access to private land, an aspect which is dealt with more fully below.

Crofting

Crofting tenure came into being in 1886 and today the whole crofting system is promoted and regulated by the Crofting Commission. Crofts are grouped in townships and consist of inbye arable land, usually tenanted or in some instances owned by the crofter, and the shared use of the township’s tenanted common grazings. The croft is the inbye or enclosed land and not the house itself but the crofting system has made affordable housing available in isolated communities.

Crofting, therefore, is more of a social system than an agricultural one, its distinctive feature being the promotion and preservation of the community. To that end common grazings are regulated by local committees and applications to de-croft or bequeath a croft out with the immediate family require at least the non-objection of the neighbours. The application of rules against non-residence and non-working of a croft also involves local consultation to ensure that the system is being operated for the common good. The strength of crofting is its ability to keep highland and island communities and their traditions intact.

The Crofting Reform (Scotland) Act 1976 gave crofters the right to buy the croft inbye land , house and steading for fifteen times the bare land rent and then to apply to have land de-crofted and sold after five years without restriction. It should be noted, however, that by 1996 only 3250 out of a total of 17,685 crofts were owner occupied. There is a group of grants specifically targeted at crofting. These include support for Township Development, Community Initiatives, Crofter Forestry and a Crofts Entrants Scheme aimed at the release of under-used crofts to younger people.

The first community land trust was established in Stornoway in 1923 and there have been recent developments in Assynt, Borve, Annishader and Melness where trusts were formed to bring the croft land into community ownership. These developments were later given encouragement by the Transfer of Crofting Estates (Scotland) Act 1997 under which tenants in government owned crofts were offered the opportunity to own their land by the creation of trusts but to date no crofting township has taken up the offer.

Crofting is as susceptible to any decline in farming income as any other rural community but in the debate on land reform it offers some interesting models for extending community involvement in both land tenure and land use. Ownership does not appear to be the main issue in the crofting communities; rather it is about land use, the involvement of the community and the security of tenure granted to the crofters.

Sporting Estates

Reform of land tenure and land use would provide an opportunity to clarify the rights of landowners to take (kill or capture) certain species of wild animals in their land. Red Deer are the main species hunted on the majority of sporting estates and the value of the estate is often determined by the number of stags shot annually during the stalking season. Such estates typically change hands for values well in excess of their value based on agricultural use yet the owners are exempt from paying non-domestic rates on deer shoots or fishing beats, estimated to cost the Treasury somewhere between 2 million and 5 million per year in Scotland.

Many of the large estates are well maintained and well run but the pattern of ownership includes a proportion of absentee landlords and a proportion of landlords owning the estate purely as an indulgence. Within these latter categories there are a number of estates on which both the property and the condition of the land is poor and run down. Such estates might benefit from a reformed system of land tenure and land use that included social obligations in relation to the maintenance and use of land.

The Conservation Estates

The degradation of the landscape is well documented and recognised by government in the creation of policies designed to conserve and enhance the best of what remains. The system is administered by Scottish Natural Heritage (SNH). A large number of conservation organisations with specialist objectives have been established and many of these have built up extensive holdings as an integral part of their activities. The conservation organisations with land holdings over1000 acres at 31st December 1995 were:

Organisation Acres
National Trust for Scotland (NTS) 176,827
Royal Society for the Protection of Birds (RSPB) 87,489
John Muir Trust (JMT) 35,015
Scottish Wildlife Trust (SWT) 28,620
Woodland Trust (WT) 5,000
Scottish Natural Heritage (SNH) 84,488

The acreage owned by these organisations continues to grow. The National Trust for Scotland bought Mar Lodge in 1995, the John Muir Trust bought Strathaird in 1994 and Sconser in 1997 and SNH bought Creag Meagaidh estate in1997. Whilst some of these organisations do consult, given the substantial amount of public funding which has been made available to purchase and maintain these estates it is argued that all of them should take greater account of the views of the local communities in preparing their development plans.

Concern is expressed by some of these organisations that the present system of natural heritage protection is inadequate to protect sensitive areas such as the Cairngorms and Loch Lomond and they propose the creation of National Parks. In September 1997, the Government announced the establishment of a National Park for Loch Lomond and the Trossachs and said that National Parks might be appropriate where a sustainable approach which balances the requirements of economic and social development with those of conservation is required.

Urban

If the problems associated with Scotland’s system of feudal tenure and a belief that land is considered to be no more than an economic commodity are believed to have a disadvantageous effect in the rural areas they are no less acutely felt in urban areas. The powers of the feudal superior are the same in the urban community as they are in rural areas and economic considerations as opposed to social or community considerations have frequently been at the heart of decisions to build urban housing estates with unacceptably high density levels and to sacrifice precious greenbelt for superstore or other commercial developments.

Yet the state, in the form of government, can be said to have intervened in the development of land in urban communities to a greater extent than in rural communities. The Town and Country Planning Acts effectively nationalised development rights. Any use or operation defined as development requires the permission of the local authority. On agricultural land, this restricts the development to one consistent with the use of land for agricultural purposes and, likewise, on forestry land, restricts development to one consistent with the use of land for forestry. In the urban communities the range of planning powers have largely been successful in curbing the worst of the developers’ excesses. Imposing a planning system on the existing system of land tenure, however, serves to highlight the tension, and sometimes conflict, between private an public interests which might better be resolved in a new system of land tenure which incorporated obligations concerning land use.

Powers of compulsory purchase were introduced by government on the grounds that such a purpose would satisfy a social interest over a purely commercial interest. Compulsory purchase is now most commonly used for road building programmes and land assembly for city centre developments where considerations of social or environmental issues do not appear to rate highly.

The tenants’ right to buy their Council house has had a significant impact on the profile of ownership in urban areas but a new system of land tenure and land use which seeks to bring about a better balance between public and private interests is needed if the interests of those who live in urban communities are to be better protected.

The Crown Estates

The Crown Estate comprises those parts of land and the sea which are the hereditary possession of the Sovereign. The Crown Estate falls into two parts: those held inalienably in trust for the people such as specific property estates and the territorial seas; and other rights which can be granted out into ownership such as the foreshore and the rights over salmon fishing. The Crown Estate is managed by the Crown Estate Commissioners under the Crown Estate Act 1961 and derives its income from land and property rentals in urban and rural areas and in marine areas from fish cages, boat moorings, oil and gas pipelines and port and harbour developments.

In reforming the system of land tenure and land use it would be important to redefine the Crown Estate, making the Crown Estates subject to land use statements and ensuring an appropriate balance of public and private interests in the management of Scotland’s natural resources. In terms of securing wider public and community involvement, the opportunity could also be taken to review the need for certain properties to remain Crown Estates and to consider whether the managerial and revenue raising responsibilities for some Crown properties, for example the foreshore, could be transferred to local councils.

Rights of Public Access

If the people are to enjoy the land it follows that they must have access to the land. Increasingly, however, the individual finds it more difficult to gain access to the land. So-called rights of way disappear and access to the foreshore is often denied. The privatisation of Forestry Commission land has in many cases resulted in a loss of access. Farmers are always concerned about unfettered access to their land and conservationists split between those wishing greater access to nature and those who wish to protect the countryside from excessive intrusion. The position became further confused when the Conservative government insisted on making the provisions of the Criminal Trespass Act1996 apply to Scotland.

As noted above, a right of public access to private land exists in Norway and Sweden. The regulations which provide for this right are designed to ensure a balance between, on the one hand, public right of access and peaceful enjoyment and, on the other hand, private rights of privacy and protection from material damage to property or livelihood. If such a balance can be achieved in other countries it has to be hoped that any reform of the system of land tenure and land use could incorporate provisions for a universal right of public access to all owners land conditional upon respecting the privacy and property of the owner.

The Current Debate

In preparing this report the Committee found ample evidence of a wide ranging debate on the subject of land tenure and land use being conducted throughout Scotland. Many of the participants in the debate were hopeful that the establishment of a Scottish Parliament would hasten the process of reform of the system of land tenure.

Responding to the strength of public response to the problems in Assynt and Eigg and to the increasingly wide-ranging public debate, the Government, in October 1997 issued a discussion paper Towards a Development Strategy for Rural Scotland. The paper described Land as a defining issue for Scotland and the Government took forward its manifesto commitment "to initiate a study into the system of land ownership and management in Scotland by establishing a Land Reform Policy Group with the remit to identify and assess proposals for land reform in rural Scotland, taking account of their cost, legislative and administrative implications and their likely impact on the social and economic development of rural communities and on the natural heritage." After this report had been completed, the Land Reform Policy Group published a consultation document Identifying the Problems calling for responses by 30th April 1998. The Committee has made an interim response pending the decision of the General Assembly in relation to this report.

The Government intends that the final report from the Land Reform Policy Group will provide a sound basis for legislative action on land reform for the new Scottish Parliament which will also inherit two closely related reports from the Scottish Law Commission on the abolition of feudal tenure and on the reform of the law on real burdens.

It is impossible to include all of the matters which have been raised in this wide ranging public debate but they include the following proposals (many of which have been considered above in similar form):

bulletthe replacement of the feudal system of land tenure by absolute legal ownership;
bulletthe Crown’s marine estate to be passed into local control;
bulletland owned by the Forestry Commission and SNH to be transferred to community ownership;
bulletprivate and public crofting estates to be transferred to community ownership;
bulletthe promotion of community ownership of land;
bulletgiving agricultural tenants the right to buy their farms;
bulletland management strategies to be developed locally based on social, economic and conservation objectives;
bulletfiscal subsidies to be reviewed to ensure that both public and private interests are properly balanced and land management objectives are met;
bulletnew forms of settlement to be established in rural areas; and government structures to be reformed in a new Land Commission.

Conclusions and the Way Forward

First, we are concerned that impatience with the feudal system of land tenure might result in a system of land ownership which conferred absolute rights and no element of conditionality.

Second, we are concerned that insufficient attention is being given the link between land tenure and land use, as compared to other countries which have developed and introduced modern systems of land tenure and land use systems.

Third, whilst welcoming the Government’s establishment of the Land Reform Policy Group we are concerned that its remit is confined to land reform in rural Scotland and we believe that, at the very least, its remit should be extended to cover the whole of Scotland.

Fourth, while the membership of the Land Reform Policy Group undoubtedly brings together a great deal of expertise in this field, if all the legitimate interests are to be engaged in a transparent public debate on land reform, it is too narrowly drawn and needs to be widened.

Fifth, whilst again welcoming the commitment of the Scottish Law Commission to produce reports on the abolition of feudal tenure and the law of real burdens, we believe its work should not be conducted within the strictures of a narrow legal debate but would benefit from being exposed to the wider aims and objectives of those engaged in the debate on land reform.

To overcome these reservations in a way which might sustain the gathering momentum to the national debate the Committee believes that the way forward lies in supporting calls for the establishment of a Scottish Land Reform Convention. We have in mind a body similar in form to the Scottish Constitutional Convention, which produced the blueprint for the new Scottish Parliament, insofar as it attempted to bridge the party political divide and engaged a wide cross section of public opinion in an open and transparent debate.

A new covenant on land use in Scotland could emerge from such a Convention and build a consensus throughout Scotland for land reform as a basis for action by the Scottish Parliament. It would be a body in which the Church could participate and make its own distinctive contribution to an issue which affects the lives of all Scots.

Bodies consulted in the preparation of the Report

bulletThe Crofters Commission
bulletHighland and Islands Enterprise-Community Land Unit
bulletThe Scottish Landowners Federation
bulletScottish Law Commission
bulletThe National Farmers Union of Scotland

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