Siol nan Gaidheal


LAND REFORM - THE ENGLISHING OF SCOTLAND

Pre-ramble:
This writing is the result of extensively examining land reform and the concerns of various land reform advocates. With the evidence that is available to me at this time the conclusions are inescapable, I could very well be wrong but it would take someone with a better understanding of Scottish land law to set the record straight; at least the following will make an interesting discussion paper.

Land Reform - The Englishing of Scotland

The draft copy of the proposed 'Land Reform Bill' was drafted by the (then) six comfortably appointed men of the 'Scottish Law Commission' in a process parallel to the public consultations that occurred simultaneously. (see article: "The Second Clearances" by Peter Gibb).

Without a Scottish Parliament the new land laws would not be possible. Most agree that land reform is a necessary and popular issue. It appears however, that the concept of land-owning in Scotland is about to become rooted in English jurisprudence, heritable and absolute public rights will become 'paper' rights or written law. Government appears to be harmonising the Scottish and English land laws.

Under Scotland's feudal land laws the concepts of "private property" and "trespass" are unknown. Hence the "right to roam" is heritable, absolute and beyond the tampering of politicians when properly understood and applied.

(From 'The Lore and Law of Scottish Access' by Allan Blacklaw.)
Tom Johnston, Secretary of State for Scotland, July 4, 1942... "The law in Scotland is abundantly simple. There is no such offence as trespass which is a term borrowed from English jurisprudence. Any member of the public is at liberty to walk over any land in Scotland provided he does so without damage to crops or fences and does not commit a breach of the various poaching laws. This applies to the whole country with the exception of private gardens..." Advising the Government in 1961 landowners agreed, "There is no law of trespass in Scotland..." In 1967 access became an issue... with increasing numbers of visitors the Government made the mistake of trying to discredit the Scottish tradition of freedom of access by saying that "There is very little difference between the laws of trespass in Scotland and England. In both countries it is a civil offence against the personal right of property." (e.g. private property.) This became the guiding principle of the new 'Countryside Commission of Scotland', the C.C.S. who developed it further in publications and statements. There was never any 'internal Government review' that would be normal for such a major re-statement of the law (and in fact never a trespass law in Scotland.)

'Responsible access' legislation is only now necessary because of the shift to 'private property'. With the introduction of 'responsible access' into law (The Scottish Countryside Access Code) the ancient 'right to roam' becomes a 'paper' right and subject to amending at any time, this by implication introduces for the first time into Scottish land law the English legal concept of 'trespass'. (The proposed legislation does make mention of 'aggravated trespass' in connection with 'dealing with disputes, I don't know if this sets precedent or not.)

Further to the preceding observations, with the "Abolition of Feudal Tenure Bill" passed; the English legal concept 'private property' is an introduced element new to Scottish jurisprudence. Feudal tenure is a 'land use' system with the landowner enjoying certain 'use rights' but subject to feu conditions.

In Scotland the hierarchy in the feudal system was;
1. God
2. Paramount Superior (the Crown)
3. Superior (landowner)
4. Vassal (tenant)
In England the legal concept, 'private property' allows that the landowner reigns supreme.

This is a fundamental constitutional change in Scottish land-ownership. The 'Land Reform Policy Group' (the Scottish office) in their 'Recommendations for Action Report' (pub. Jan 1999) explicitly state, "Firstly by the time that the Scottish Parliament is in being, a draft Bill will be available to abolish the feudal system (which is still subject to abuse) and replace it with a system of OUTRIGHT OWNERSHIP OF LAND." or private property, the rights of which are undefined in Scottish land law; they will no doubt be drawn from the English model. All this represents a coup for the land-owning community in Scotland and underscores the diminished heritable rights of the public to enjoy the land.

A.J. Rettie of Strutt and Parker as quoted in the January 2001 issue of Scottish Life, "Since the postponement of the publication of the 'Land Reform Bill' dealing with key issues such as 'public access' and 'the community right to buy'...buyers have now discounted the likelihood of there being 'draconian' measures contained within the bill." Of course they have, you can be sure that those considering a hobby lairdship are getting a quiet nod. Land-owning in Scotland has never appeared better, vast acreages of low cost 'private' property with still less obligation to the natives than prior to land reform.

Rettie again, "Strutt and Parker have 38 active buyers on their books with a buying power of 114,000,000 pounds to invest in a Scottish sporting estate. With demand exceeding supply (there are rarely more than 15-20 sporting estates on the market in any one year) the market will continue to strengthen and I predict values will increase 15% next year." Does anyone suppose that 38 intelligent and acquisitive people representing 114 million pounds in disposable income would line up around the block to invest in an uncertain future? Every good reason for land reform seems to have been bypassed.

The 'community right to buy' depends solely upon the owner wishing to sell, the onus will then be on the community to raise the necessary capitol and to make the purchase within a certain time frame, certain minimal advantages go to the community but only if they meet a stringent set of criteria.

The L.R.P.G.'s 'Recommendations for Action Report' states in their 'vision for the future' that land reform will need to to address:
1) "Increased diversity in the way land is owned and used, in other words, more variety of ownership and management arrangements... which will lead to less concentration of ownership and management in a limited number of hands." And
2) "Increased community involvement in the way land is owned and used, so that local people are not excluded from decisions which affect their lives and the lives of their communities."

While this might make land reform worthwhile, in no part of the proposed new land legislation is there an inclusion for any of the principles in the "Vision for the Future" statement.

The entire land reform initiative seems to represent an agenda (a landowner wish list) laid down well in advance of the formation of the Scottish Parliament and based upon introducing the 'Landowner Supreme' concept of English land law into Scotland. In the face of rising Nationalism, such a change would have undoubtedly led to a widespread reaction against Westminster. The idea of advancing these fundamentally foreign and unconstitutional land laws behind the smokescreen of a Scottish Parliament must be admired for genius and brings to mind the old English refrain, it's the Scots doing it to themselves again. In fact land reform is a 'Made in England' solution to a very Scottish problem.

I urge anyone interested to read "The Second Clearances" by Peter Gibb. His article nails the truth about the process and implications of land reform, it will also give clarity to this and the preceding statement.

Further observations:
Why the sudden rush to introduce land reform (A Bill for a Parliament not yet in existence)?
1) If the Government hadn't prior to the opening of the Scottish Parliament it would have lost control of the issue and so had to settle matters in advance.
2) The outcome was pre-ordained before the process started.
3) The Government was aided in this by popular sentiment and land reform advocates.
4) The process of consultation and outcome appeared out of step, exclusive and the answers didn't match the concerns not because that's how government works but because Government needed to be seen to be working.
5) As Peter Gibb points out... feudal land-owning is the constitutional basis for land-ownership in Scotland, abolish it and you have to introduce a foreign constitutional basis, in this case the English one.


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