The Fool on the Hill: Response to Land Reform in a Net Zero Nation

Monday, 11th July 2022

(submitted Tuesday 13th September 2022)

Response to Consultation ‘Land Reform in a Net Zero Nation’

Simon Brooke, Standingstone Farm, Auchencairn, 11th July 2022

Introduction

Over the past almost twenty years, the Scottish Parliament has tinkered at the margins of the land question. Virtually nothing has been achieved. Access rights have been clarified, and that, in itself, has been welcome – yet even that reform is resisted by landowners, and at threat of being rolled back over wide areas such as in the Trossachs.

An utterly trivial amount of land has been transferred into community ownership. Meantime, the big estates continue to expand, average agricultural holding sizes continue to drift upwards, rural homelessness continues to grow, the moors continue to be burned, the bogs continue to be drained, and our native predators and raptors continue to be persecuted.

What Scotland wants from its rural lands is a matter of policy choices. We can have a vibrant landscape, home to hundreds of thousands of people, supporting a rich ecosystem within which native species thrive, and producing abundant food, fibre and timber which we need for our survival; or we can maintain a wet desert, overgrazed by deer and producing little except for flocks of small birds for the (mostly foreign) rich to shoot in August.

These are choices: choices about what sort of nation we want to be.

Land Reform is critical to these choices, but Land Reform alone is not sufficient. If the idle rich don’t live anywhere near the rolling estates they claim to own, this matters little, because they can employ agents and contractors to do all the work to manage it. But if the relatively poor own land, they must live on or near it in order to be able to do the work themselves, because they cannot afford servants; and if they also cannot afford homes near their land, the whole point of Land Reform is lost.

A capitalist market in housing has driven the cost of dwelling houses in most of rural Scotland beyond the incomes which can be earned in the rural economy. A Land Reform proposal which does not also include proposals to manage the cost and availability of housing is meaningless. As I've written previously, 'what the Scottish rural economy needs is full communism now'.

A related issue, considering the future climate, is that there must necessarily be vast migrations of people northwards as the tropics cease to be habitable. If Scotland is to be a responsible nation we must take our fair share of those climate refugees, which means we must prepare to resettle certainly hundreds of thousands, probably millions, of people. These people, too, will need land.

Property rights, and wrongs

The consultation document makes a strong claim that

“The European Convention on Human Rights requires a strong justification for interference in the rights it accords to property owners” (page 18)

Well, ish. There are no strong claims to moral entitlement to own any square inch of Scotland’s land. Land, in Scotland at least, is not man made. We may claim of an invention or of a work of art that “I made this, therefore it is mine”, but we cannot claim that of land.

Nor can we claim - for any inch of Scotland - that we were the first settlers, or that it has passed peaceably and lawfully from parent to child down the ages from the first settlers. All of Scotland's land has been fought over, seized, stolen, not once but many times over the past seven thousand years.

If we root our claims to property rights from lands granted by Kings in old lang syne, what the mediaeval Kings of Scotland were doing when they gave tracts of land to tough, competent, well armed mercenaries was not just generosity and open handedness. Nor was it a grant in perpetuity, nor automatically heritable. There was an explicit contract on which the whole feudal system was based. The King, as the personification of the state, provided the land, and the lairds in return provided local justice, civil administration, civil order, and defence of the realm.

But what's happened over the intervening nine hundred years is that we've socialised the duties under the feudal contract - the ordinary folk of Scotland now pay for justice. civil order, civil administration and defence of the realm out of our own taxes - but privatised the benefits: we've left the aristocracy with the land. Worse, we've allowed them through a process of legal alchemy to transmute those feudal grants into property rights.

However, we do not need to challenge these claimed property rights – however specious we may consider them – in order to create the pattern of rural Scotland we choose. There are many policy interventions which we can make to render the ownership of large estates onerous, either through imposing burdensome administrative duties, or (my preferred option) by imposing a highly progressive tax on the size of holdings.

Ownership and Tenancy

Ownership – especially of land – and its intergenerational inheritance is the key driver of social inequity. It’s the mechanism by which the rich (mainly) get richer, and consequently that the poor (mainly) get poorer. Therefore, there is a very strong public interest against anyone having heritable right to any land anywhere for any purpose at all.

At the same time, there is a public interest in land being given good husbandry, and that requires, among other things, consistent management in the long term by someone intimate with that particular patch of land; and many people, perhaps most, aspire to having a place of their own, a domain, which they can personally manage.

We have an interest in according to others the right to quiet enjoyment of their land to exactly the extent that they accord to us right to quiet enjoyment of ours; but in a nation in which the vast majority have no appreciable area of land of their own, this cannot be a public interest.

We need food, in order that people can eat. Our food is mostly grown on land. Farmed land must be managed, tended, cared for. To produce food in quantity, sustainably and to a high standard needs consistent care. Land needs consistent care by people who are intimate with it. Much forest, especially if we want quality timber for structural material, needs consistent care in exactly the same way as farmed land and should be treated in exactly the same way.

People need homes, and those homes, too, are mostly built on land. People need to feel secure in their homes. And we have an interest in allowing others quiet enjoyment of their homes precisely to the extent that they allow us quiet enjoyment of ours.

So for farming, for forestry, and even for just basic living, we need a mechanism which gives individual people secure tenure of a piece of land for an extended period, but which does not give them a heritable right to it. Fortunately, Scots law provides exactly that mechanism: the liferent, a tenure which is for life unless voluntarily surrendered.

La Tierra es de Quien la Trabaja

So what are the consequences of the two arguments I’ve made above – that there are no strong claims to, or public interest in, heritable rights to land in Scotland, and that nevertheless there is a public interest in consistent long term management of individual holdings of land?

My view is that the goal towards which we should be steering our course is of a Scotland where all land is owned communally, but is let in equitable parcels on liferent to those individuals who have an interest in managing it, and the skills to do so. As Emiliano Zapata put it, “La Tierra es de quien la trabaja con sus manos” [The Land is for those who work it with their hands].

This is, of course, not a short term project. As Martin Luther King said on the eve of his assassination, “it really doesn’t matter with me now, because I’ve been to the mountaintop … I’ve seen the Promised Land. I may not get there with you. But I want you to know tonight, that we, as a people, will get to the Promised Land”.

In the mean time, though, while we work towards the breaking up of the large estates and to the establishment of a peopled landscape, my strong view is that landlords should accord to their tenants the same right to quiet enjoyment of their land as they themselves wish to experience.

To that end, I view the Land Use Tenancy (section 9, and questions 29 to 39 inclusive) as misdirected and essentially irrelevant. If you’re letting land, you’re clearly not working it with your own hands, so your rights to have a say in its management should be no different from those of other member of the community. Every agricultural tenant should automatically have the full rights proposed for the Land Use Tenancy; there is no point in having more, and more complex, law than is strictly necessary.

A final point on this. The big estates have big legal budgets and clever lawyers always on tap. Their tenants don't. Any further complexity to land tenure law will inevitably benefit lairds against their tenants, and will inevitably be used to further bully, cozen, cheat and swindle.

What do I mean by a ‘pathologically large holding’?

The largest units of land in Scotland from which there may be a public policy benefit from having in single private ownership are:

  1. Grangemouth refinery complex, about 700 hectares – but although this was at one time in single private ownership, it has now been broken up into a number of sub holdings owned by companies which are at least apparently separate;
  2. Edinburgh Airport, about 400 hectares;
  3. Glasgow Airport, about 300 hectares;
  4. The railway network, owned by UK government so not currently private. Across the UK Network Rail owns 51,700 hectares, but what proportion of this is in Scotland is unknown, at least by me.

I would argue that transport networks are sui generis, a special case, and that for the purpose of determining the size of a holding which there is a public interest in retaining as a single holding, the Grangemouth refinery complex is the largest example.

It’s worth noting, however, that each of the three biggest holdings I was able to identify requires to be the size that it is because of the needs of technologies which, in a Net Zero Scotland, we can no longer use. Oil refineries, and airports, are obsolete as of now; so even this justification for a 700 hectare private holding is possibly also archaic.

However that may be, anything larger than 700 hectares must certainly be considered pathological: as having no possible or conceivable public policy benefit.

Multiple blocks under the same ownership

Note that, at the consultation meeting at Langholm, Janet Mountford-Smith, the lead civil servant on the bill, was clear that geographically separate blocks of land counted as separate holdings, and that one beneficial owner could hold (say) multiple 2,999 hectare holdings, provided they were non-contiguous, without being deemed to hold a 'large-scale land holding'. This obviously can't be allowed, because it allows land owners to evade the legislation entirely simply by selling narrow strips dividing their holding into non-contiguous blocks.

On the contrary, all lands in Scotland held by the same or broadly the same beneficial owners must be deemed to comprise a single holding for the purposes of this legislation.

What do I mean by 'broadly the same' beneficial ownership?

Where

  1. a single entity, or
  2. an identifiable group of entities

own more than 50% of either the beneficial interest or the controlling interest in two non-contiguous blocks of land, then those blocks should be considered parts of a single holding.

Thus if Alice, Bob, Charlotte, Denis and Ephegenia each own 20% of Strathsnooty Estate, and Charlotte, Denis, Ephegenia, Fred and Geraldine each own 20% of Glenfauntleroy Farms, then all lands held by Strathsnooty Estate and Glenfauntleroy Farms should be considered a single holding.

Otherwise, large landholders could evade the legislation by dividing their holding into nominally separate blocks and selling a non-controlling interest in each block to a different relative or friend.

The Questions

Question one

Q1. Do you agree or disagree with the criteria proposed for classifying landholdings as ‘large-scale’:

a) A fixed threshold of 3,000 hectares Agree / Disagree / Don’t know

Disagree, strongly. There is no public policy interest in tolerating single private landholdings greater in extent than the Grangemouth refinery complex, Scotland’s largest industrial site, which is around 700 hectares. Anything larger than this should be considered pathologically large, and if we are seeking to ‘address the concentration of landownership in Scotland, including a public interest test’ then it must be a public policy objective to disincentivise the ownership of such holdings, through withdrawal of subsidy, and imposition of taxation and of onerous administrative burdens.

b) Land that accounts for more than a fixed percentage of a data zone (or adjacent data zones) or local authority ward(s) designated as an Accessible Rural Area or Remote Rural Area, through our six-fold urban/rural classification scheme Agree / Disagree / Don’t know

Disagree. Without specifying the percentage, this is meaningless. The local authority ward in which I vote is larger than five independent European countries PUT TOGETHER; one ward in Highland region is larger than seven, including two separate EU member states.

c) Land that accounts for more than a specified minimum proportion of a permanently inhabited island Agree / Disagree / Don’t know

Disagree. Without specifying the percentage, this is meaningless.

Question two

Do you agree or disagree that family farms should be exempt from the proposals outlined in Parts 5 to 7 even if they are classified as ‘large-scale’ landholding?

Agree / Disagree / Don’t know

Disagree. If a holding is pathologically large, it doesn’t matter who it’s owned by; and any holding which cannot be worked entirely by the labour of the members of the family is not a family farm in any meaningful sense.

To be clear; as of 2010, the average agricultural holding – the average farm – in Scotland was 101 hectares, although that size was slowly trending upwards. The upward trend should itself be seen as a failure of a policy which aims, in the minister's words, 'to increase diversity of landownership', but a family farm which is already above the average holding size should not be given further protection.

Question three

Do you think that the proposals considered in this consultation should be applied to the urban context?

Yes / No / Don’t know

Don’t know. The 3,000 hectare limit represents one quarter of the entire urban area of Edinburgh; it’s hard to see how a single urban holding could qualify. If there are housing authorities in Scotland with land holdings exceeding this proposed limit this is news to me.

Question four

We propose that there should be a duty on large-scale landowners to comply with the Land Rights and Responsibility Statement and its associated protocols. Do you agree or disagree with this proposal?

Agree / Disagree / Don’t know

Disagree in detail. Certainly there should be such a duty, but it should be imposed on all pathologically large land holdings, not merely those over 3,000 hectares.

Question five

If there was a legal duty on large-scale landowners to comply with the Land Rights and Responsibility Statement and its associated protocols, we propose that this should be enforced by having a formal procedure for raising complaints, and by making provisions for independent adjudication and enforcement.

a) Do you agree or disagree with the proposal above?

Agree / Disagree / Don’t know

Agree. There’s no point in legislating a duty on a group of people whom we know include a significant proportion of extremely bad actors unless we have mechanisms to investigate and sanction misbehaviour. Sanctions should be imposed at a sufficient level to make adjudication and enforcement self-financing.

b) Do you agree or disagree that only constituted organisations that have a connection to the local area or the natural environment should be able to report breaches of the Land Rights and Responsibility Statement?

Agree / Disagree / Don’t know

Disagree. Any person who has ‘a right to be on the land’ under the Land Reform Act 2003 should have the right to report breaches.

c) Do you think the responsibility for investigating and dealing with complaints should sit with:

• the Scottish Government Yes / No / Don’t know

• a public body (such as the Scottish Land Commission) Yes / No / Don’t know

Don’t know. This opens a complete can of worms regarding relationships between elites and politicians in relatively small polities. It will have escaped no one’s notice that Benny Higgins, deputy to Fred 'the Shred' Goodwin in the downfall of the Royal Bank of Scotland and now the Duke of Buccleuch’s factor, is also a senior advisor to the Scottish Government.

This is part of a pattern of internecine links between Scottish Government and the extremely rich and powerful of Scottish society which makes it very difficult to trust the Scottish Government to act in the public interest in cases affecting the kleptocracy.

It’s questionable whether even the sheriff courts can be trusted to act in these cases, given the record of penalties issued in raptor persecution cases and other wildlife crime. Nevertheless, while all human institutions are fallible, in a democracy the judicial system should be (not necessarily is) the best institution to discharge this duty.

d) Should the potential outcome from an investigation of a breach be:

• Recommendation for a mediation process Yes / No / Don’t know

• Recommendation on how the landowner or governing body could comply with the Codes of Practice/protocols Yes / No / Don’t know

• A direction to the landowner or governing body to implement changes to operational and/or management practices Yes / No / Don’t know

Yes to all of the above, Mediation and advice are always good things, but where there is obstinacy or lack of cooperation (as there often is with entitled landowners) then there must be power to compel.

e) Should the enforcement powers for a breach be:

• Financial penalties Yes / No / Don’t know

• ‘Cross-compliance’ penalties Yes / No / Don’t know

Yes to both the above. It should be a public policy objective to make the maintenance of pathologically large estates sufficiently expensive and onerous to deter continued ownership. At minimum, financial penalties should be set at a level that covers the entire cost of investigation, adjudication and enforcement.

As a final resort, the adjudicator should have the power to appoint a factor to take over the management of the estate for a specified period, for example five years, to ensure that the required changes to management practice are implemented; with the factor’s costs and remuneration being a first charge on the income from the estate.

Compulsory Land Management Plans

Part six of the document covers ‘compulsory land management plans’, which seem to me a really good idea and ought to apply to all land holdings (including mine). There’s even a wee template here to show what’s required. Frankly, I think landowners (including me) should supply more detail than this, but it’s not a bad start.

Question eight

We propose that there should be a duty on large-scale landowners to publish Management Plans. Do you agree or disagree with this proposal?

Agree / Disagree / Don’t know

Please give some reasons for your answer:

Disagree. I own and manage four hectares; it does not seem to me that the template provided would be unduly onerous for me to be required to complete. It seems to me that management plans at this level of detail should be required of any manager of any land to which access rights under the Land Reform Act 2003 apply.

I think there should also be requirements for the publication of these plans, which I shall expand on under Q11 below.

Obviously it is reasonable to place a more onerous requirement for detailed reporting on managers of larger holdings than of smaller ones, but I see no reason why reporting at the level of detail described in the consultation document and shown in the accompanying template should not be required of all land managers.

Question nine

How frequently do you think Management Plans should be published?

Annually, or more frequently at the option of the land manager.

Question ten

Should Management Plans include information on:

• Land Rights and Responsibility Statement compliance Yes / No / Don’t know

• Community engagement Yes / No / Don’t know

• Emission reduction plans Yes / No / Don’t know

• Nature restoration Yes / No / Don’t know

• Revenue from carbon offsetting/carbon credits Yes / No / Don’t know

• Plans for developments/activities that will contribute to local and inclusive economic development or community wealth building Yes / No / Don’t know

Please provide some reasons for your answers and any additional suggestions:

Yes to all the above, HOWEVER selling carbon credits/offsetting on the open market will only lead to irresponsible and damaging use of carbon.

Capitalism is how we got into this mess, it cannot provide a solution. While it is clear that some activities which are essential, for example in the production of food, will continue to emit carbon and that consequently we require other activities to overall sequester carbon, this must be a matter for central planning and cannot be left to the market. The key thing we know about markets is that they only disentropise wealth. They have no other function. We must not tolerate a trade in carbon credits.

Question eleven

Do you think the responsibility for enforcing compulsory land management plans should sit with:

• the Scottish Government Yes / No / Don’t know

• a public body (such as the Scottish Land Commission) Yes / No / Don’t know

Please provide some reasons for your answers and any additional suggestions:

The Scottish Government should, probably through Registers of Scotland, provide a public web portal through which land managers can publish and update their Land Management Plans, and which members of the public can search via a map for the Land Management Plan covering any area of land. The web portal could easily automatically issue reminders to land managers of the need to update their plans, and could automatically issue notices of areas of land (and the related land managers) where no up-to-date plan was registered, in order to facilitate enforcement.

As detailed in my answer to 5e above, enforcement powers should include financial penalties, but as a last resort should include the power to appoint a factor to take over the entire management of the estate for a specified period of time in order to ensure compliance.

Question twelve

Do you think the proposal to make Management Plans a legal duty for large-scale landowners would benefit the local community?

Yes / No / Don’t know

Please give some reasons for your answer

Yes, fairly obviously. It would allow the community (and neighbouring land owners) oversight of planned land management operations in advance, thus allowing local issues to be ironed out through discussion with the land manager before problems arise.

Public interest test on large land transfers

Question fourteen

We propose that a public interest test should be applied to transactions of large-scale landholdings. Do you agree or disagree with this proposal?

Agree / Disagree / Don’t know

Please give some reasons for your answer:

Agree. To start, the first of the core aims of the Scottish Government’s land reform policy set out in the Cabinet Secretary’s introduction to the consultation document is “to increase diversity of land ownership”.

To achieve this objective, it is essential

  1. To prevent the expansion of any already pathologically large holding by the acquisition of further land;
  2. To prevent the continuance of any pathologically large land holding by its sale or inheritance as a single lot, or by the sale of multiple lots to or inheritance of multiple lots by a single entity which would together amount to a new pathologically large holding, even if that new holding were smaller than the original holding;
  3. That, in considering entities and land holdings for the purposes of increasing diversity of land ownership, entities which have substantially the same beneficial ownership should be considered the same entity, and multiple holdings of land by the same entity should be considered a single holding, even if the lands held are not contiguous.
  4. Transfer of an entity which holds land to new beneficial ownership, whether by sale or by inheritance, should be considered for these purposes to be a transfer of land.

Question fifteen

What do you think would be the advantages and/or disadvantages of applying a public interest test to transactions of large-scale landholdings?

The advantages are as follows:

  1. It would increase transparency of land ownership;
  2. It would tend to break up pathologically large private holdings;
  3. It would allow members of the public, and communities, to make representations considering the disposition of the lands;
  4. It would allow communities to consider whether they had an interest in acquiring all, or parts of, the lands.

There are no disadvantages.

Question sixteen

Do you think the public interest test should be applied to:

The seller only / The buyer only / The seller and buyer / Don’t know

Please give some reasons for your answer:

The Seller and the Buyer. There is a public interest where

  1. the seller is currently owner of a pathologically large holding;
  2. the buyer is already owner of a pathologically large holding (in which case the sale should be allowed only if the buyer were required simultaneously to surrender title to an at least equal area of land);
  3. the buyer would, by acquiring the holding, become the owner of a pathologically large holding;
  4. If either buyer or seller is an entity in a secrecy jurisdiction of which the beneficial ownership is not known, that entity should be treated as though it had pathologically large land holdings, since we have no way of knowing that it does not.

Question seventeen

If the public interest test was applied to the seller, do you think the test should be considered as part of the conveyancing process?

Yes / No / Don’t know

Please give some reasons for your answer:

Don’t know. This is a question for people with legal expertise, of whom I am not one.

Question eighteen

Do you think that all types of large-scale landholding transactions (including transfers of shares and transfers within or between trusts) should be in scope for a public interest test?

Yes / No / Don’t know

Please give some reasons for your answer:

Yes, of course. If you exclude transfers of shares and transfers within or between trusts, then people seeking to evade the legislation will simply create shell companies or trusts through which to do so.

Question nineteen

We have proposed that if a public interest test applied to the seller concluded there was a strong public interest in reducing scale/concentration, then the conditions placed on the sale of the land could include:

i. The land in question should be split into lots and could not be sold to (or acquired by) one party as a whole unit

ii. The land, in whole, or in part, should be offered to constituted community bodies in the area, and the sale can only proceed if the bodies consulted, after a period of time, indicate that they do not wish to proceed with the sale

Do you agree or disagree with these conditions?

• Condition i. Agree / Disagree / Don’t know

• Condition ii. Agree / Disagree / Don’t know

Please give some reasons for your answer and suggest any additional conditions:

Agree to both. There must always be a public interest in reducing scale/concentration of land holding where the owner and/or the seller have, or would come to have as a result of the transaction, a pathologically large holding. Generally, we should seek either to transfer land into community ownership or into multiple small holdings.

There are no strong moral claims to right of ownership of any square inch of land in Scotland. Rather, every grain of Scotland's soil has been seized, stolen, conquered, embezzled, fought over - not once but dozens of times.

Question twenty

Do you think that a breach of the Lands Right and Responsibilities Statement should be taken into account when determining the outcome of a public interest test?

Yes / No / Don't know

Please give some reasons for your answer:

Yes. A breach of the Lands Rights and Responsibilities Statement by a seller of land should not generally disqualify that seller from selling; rather, there is a public interest in that land being put under new management. Nevertheless, it may mean that there’s a public interest in determining what (and whose) management that should be.

A breach of the Lands Rights and Responsibilities Statement by a potential buyer of land should generally mean there’s a presumption against that entity being allowed to acquire further land, unless that entity is an authentic community body.

Question twenty-one

Do you think that a public interest test should take into account steps taken in the past by a seller to:

a) Diversify ownership Yes / No / Don’t know

b) Use their Management Plan to engage with community bodies over opportunities to lease or acquire land Yes / No / Don’t know

Please give some reasons for your answers:

c) What time period do you think this should cover?

This question seems to me completely bonkers, as though someone had had a complete conceptual failure. We don’t care what the seller has done in the past, because in future the seller will no longer own the land, so even if their management has historically been very bad, it does not affect the future. We care what the buyer has done in the past, because, unless there is intervention, the buyer is likely to be managing the land in the future, so if their management of other lands in the past has been poor that is a good reason that they should not be permitted to acquire further land.

Question twenty-two

Do you think the responsibility for administering the public interest test should sit with:

• the Scottish Government Yes / No / Don’t know

• a public body (such as the Scottish Land Commission)

Yes / No / Don’t know

Please provide some reasons for your answers and any additional suggestions:

I think that the responsibility for administering the public interest test should ideally sit with the local community, but appreciate that many, perhaps most, communities will lack the skills to undertake this. However, given that, it seems best that a public body such as the Scottish Land Commission should work with the local community to administer the test.

Question twenty-three

Do you think the proposal that a public interest test should be applied to transactions of large-scale landholdings would benefit the local community?

Yes / No / Don’t know

Please give some reasons for your answer:

Yes. It’s hard to avoid the impression that the person writing the consultation document has by this time got bored and has lost attention. The answer to this question must be so obvious that it’s hard to see that it even needs asked.

Question twenty-five

We propose that landowners selling large-scale landholdings should give notice to community bodies (and others listed on a register compiled for the purpose) that they intend to sell.

a) Do you agree or disagree with the proposal above?

Agree / Disagree / Don’t know

Please give some reasons for your answer:

Agree. But note that, in many areas of Scotland, there may be, as a consequence of past malfeasance by landowners, either no viable community local to the holding, or a community whose capacity is so degraded by isolation, poverty and lack of economic opportunity that it is unable to undertake the commitment of taking over the management of a significant area of land.

I believe that, therefore, in such areas, in order to resettle the land, Scottish Government should be open to intentional communities of people from outwith the local area registering interest in holdings which become available for sale, and supporting those communities through the acquisition process exactly as though they were a pre-existing local community; subject to the proviso that the claim of such an intentional community should never take precedence over an existing community of place.

b) Do you agree or disagree that there should be a notice period of 30 days for the community body or bodies to inform the landowner whether they are interested in purchasing the land?

Agree / Disagree / Don’t know

Please give some reasons for your answer:

Disagree. Thirty days is an excessively short period for informal community bodies to form a view as to whether they have the capacity to take on the management of a large land holding. Six months would be a much more appropriate period, and a year would be better still.

c) If the community body or bodies notifies the landowner that they wish to purchase the land during the notice period, then the community body or bodies should have 6 months to negotiate the terms of the purchase and secure funding. Do you agree or disagree with this proposal?

Agree / Disagree / Don’t know

Please give some reasons for your answer:

Disagree. Again, this is a short period for communities unless they are able to access support from public agencies. If that support is available, then six months is adequate; otherwise, a year would be better.

Question twenty-seven

We propose the following eligibility requirements for landowners to receive public funding from the Scottish Government for land based activity:

i. All land, regardless of size, must be registered in the Land Register of Scotland.

ii. Large-scale landowners must demonstrate they comply with the Land Rights and Responsibility Statement and have an up to date Land Management Plan.

Do you agree or disagree with these requirements?

a) Requirement i. Agree / Disagree / Don’t know

b) Requirement ii. Agree / Disagree / Don’t know

Please give some reasons for your answers:

This question is badly set. There is a balance to be achieved here between subsidy and taxation/penalty. There are general assumptions in Scottish public policy that the only way to change the behaviour of the rich and powerful is to bribe them, and that the best way to change the behaviour of the powerless is to punish them. Both assumptions are wrong.

Disallowing subsidy for large estates which don’t comply with public policy makes compliance optional; the owners of large estates can by definition survive perfectly well without subsidy. We should not normally subsidise the already rich out of the public purse in any case; and disallowing subsidy in itself is not sufficient to drive compliance.

Question twenty-eight

Do you have any other comments on the proposals outlined above?

It does not seem to me that it would be unduly burdensome to require all land managers, regardless of size of holding, applying for public subsidy, to be able to demonstrate they comply with the Land Rights and Responsibility Statement and have an up to date Land Management Plan.

Questions twenty-nine to thirty-nine inclusive

I’m not going to answer these questions in detail because the whole proposal is over complex and further obfuscates an already byzantine area of law.

There is an inevitable asymmetry between the big estates and their tenants in access to high quality legal advice: it's is expensive, and the estates are very rich, whereas their tenants are usually not. It has to be assumed that any additional complexity has been drafted by lawyers for the big estates with precisely this in mind, and is intended to be used as a further weapon in their amoury against poor tenants.

The rights proposed for the new Land Use Tenancy should be redrafted in simple and unambiguous language, and should be added automatically to all existing agricultural tenancies.

Question forty

Would you like to be kept informed about the Small Landholding Consultation for the Land Reform Bill?

Yes / No

If yes, please provide your email details here:

simon@journeyman.cc

Question forty-one

Do you agree or disagree with our proposal to explore:

• Who should be able to acquire large-scale landholdings in Scotland

Agree / Disagree / Don’t know

• The possibility of introducing a requirement that those seeking to acquire large-scale landholdings in Scotland need to be registered in an EU member state or in the UK for tax purposes

Agree / Disagree / Don’t know

Please give some reasons for your answers

No, no, no, no, no. You can’t have this. You can’t have this at all. Land cannot be, and must not be, treated as a tradable investment asset. That’s how we got into this mess in the first place.

We need to be moving steadily towards a place where all land is owned communally by those who reside on it. We need to stop treating everything as a fungible asset. We need to build a better nation.

Disagree, in the strongest possible terms. No-one – no one at all – should be able to acquire ‘large scale’ land holdings. No one who does not pay tax on all their income in Scotland should be able to own any land in Scotland. No one should be able to acquire any significant land holding distant from their normal place of residence (a plot for a hut, or similar, excepted).

Where there is a specific public interest in an enterprise holding land in order to, for example, build a factory which produces useful goods and provides employment, then that’s a separate matter. But even then, transferable or heritable ownership of that land should not be granted.

Question forty-two

Do you have any views on what the future role of taxation could be to support land reform?

I have argued for years that the best way to break up the large estates and thus increase diversity of land ownership without falling foul of the EHRC would be through a highly progressive tax on the size of holdings. The formula I propose is

Σ1..n(cn)e

Where

n is the total number of hectares owned;

c is a constant, set by the finance secretary in the budget, annually;

e is an exponent, set by the finance secretary in the budget, annually.

I describe this as an ‘Exponential Land Tax’. The benefit of a summed exponential series is it starts slow and then grows extremely rapidly.

As an example, taking the constant, c, as ten pence, and the exponent, e, as 1.01, we get the following annual tax bills:

HoldingAnnual Tax due
Average croft£ 0.99
Average farm£ 514.22
Glasgow Airport£ 4,617.01
Edinburgh Airport£ 8,238.57
Grangemouth Refinery£ 25,399.61
Thousand hectares£ 52,043.59
Ten thousand hectares£ 5,330,406.06
Countess of Sutherland£ 58,749,440.55
Earl of Seafield£ 86,483,570.91
Captain Alwynn Farquharson£ 145,411,359.09
Duke of Westminster£ 158,091,062.05
Duke of Atholl£ 186,964,473.33
Duke of Buccleuch£ 648,675,057.73

As you can see, the taxes on the average croft and farm are trivial, and on the airports and refinery perfectly affordable by viable businesses; but on the large estates would be immediately crippling. Yet this is the same tax, with the same rules, applied equally and impartially to every holding. This is not confiscation, nor breaching human rights; it’s just a perfectly normal, universal tax applied equally to all holdings.

A further benefit is that because it is a tax on area alone, without any consideration of commercial value, it is extremely cheap to assess and virtually impossible to challenge.

My proposal would be that this Exponential Land Tax should be collected by local authorities, and would thus aid local authority funding, reducing the need for block grants and giving local government more fiscal autonomy.

In practice, however, the amount of tax actually collected would be likely to be rather low, since holders of pathologically large holdings would be highly motivated to surrender title to the majority of their lands before tax fell due.

Note that the Exponential Land Tax should not be seen as an alternative to a Land Value Tax, but as a supplement to one. The purpose of the Exponential Land Tax is to achieve 'increased diversity of landownership'; the purpose of Land Value Tax is to capture for the public purse the uplift in the value of private land occasioned by public works.

Question forty-three

How do you think the Scottish Government could use investment from natural capital to maximise:

a) community benefit

b) national benefit

Oh, yes, let’s all burn the planet down for short term financial gain. That’s a really good idea.

Seriously, has it not occurred to anyone in government that if we sell ‘carbon credits’ representing the carbon that we, through sacrifice and hard work, have been able to sequester, the rich will buy up those carbon credits and use them to fly their Learjets up to Nova Scotia to see a total eclipse of the sun, and that consequently no carbon at all will be saved?

The nature of a capitalist market is the winner takes it all, and the winner, here, is the international kleptocrat class. Every carbon credit sold is a real terms defeat in the climate emergency. We cannae dae this.

We cannae dae this. We cannae dae this ava. Otherwise there’s no future for anyone’s bairns.

Question forty-four

Do you have any additional ideas or proposals for Land Reform in Scotland?

Many. As a matter of urgency, we need to

  1. start making plans - and building infrastructure - to resettle areas of Scotland which have been cleared or largely cleared of their population;
  2. As part of the above, encourage the development of intentional communities of resettlers which can bid to resettle such areas;
  3. introduce an inheritance de-escalator, by which the maximum area of land which may be inherited by one person is set to a limit, and is then decreased each year over a period of roughly a century to nothing;
  4. encourage community councils, in areas where it is likely that the Exponential Land Tax will cause owners to surrender title to land, to prepare to manage common new land;
  5. appoint a Common Lands Factor to manage, in the interest of local community councils, common lands which they do not feel able to manage for themselves.

Question forty-six

Are you aware of any examples of particular current or future impacts, positive or negative, on young people, (children, pupils, and young adults up to the age of 26) of any aspect of the proposals in this consultation?

Unless we move land holding and rural housing outside the capitalist market, there is no future at all for young people in rural Scotland. They cannot afford housing, and they cannot hope to acquire land to work. That is why the creation of a large bank of common land, in all areas of Scotland, from which communities can let small holdings (crofts) on affordable liferent to people, including but not limited to local young people.

It is for young people, and for the rural poor (see Q49), that land reform is most important.

Question forty-eight

Are you aware of any examples of potential impacts, either positive or negative, that you consider any of the proposals in this consultation may have on the Environment?

If we indulge in carbon trading, or any other trading of ‘natural capital’, we can pretty much kiss the planet goodbye. The idea is catastrophically irresponsible.

Question forty-nine

Are you aware of any examples of how the proposals in this consultation might impact, positively or negatively, on groups or areas at socioeconomic disadvantage (such as income, low wealth or area deprivation)?

In my local village, there are only two houses within the village itself - out of about eighty - that are now still owned by local families. Until very recently, more than 20% of children at the school were living in old motor vehicles, caravans, huts and tents, in Scotland, in winter. There is also very substantial adult homelessness. I myself live in a hut, because I cannot afford any other housing. Rural poverty, and rural homelessness, is a massive, if largely invisible and ignored, problem.

To address rural poverty, we need access to land people can work, and housing people can afford. The Scottish Government’s Rural Housing Burden was a very bold attempt to address the housing problem, but typically commercial lenders will not lend for the development of properties subject to the burden, while developers seek to avoid the burden because it limits their profits. This is not strictly a land reform issue, but it is closely related.

There should be a blanket requirement for all new houses built in rural areas to be subject to the burden.

Related, there should be a blanket ban - as there is in Denmark and in Norway - of using buildings scheduled as dwelling houses as either ‘holiday homes’ or for short term lets. Scotland already has - as the Scandinavian countries do - a separate planning category, huts, for buildings designed as holiday accommodation. We should make it extremely difficult to reschedule a dwelling house as a hut, and require those currently using dwelling houses as ‘holiday homes’ or for short term lets to sell them as dwellings within five years, on pain of them being taken over by the local housing authority to be used as social housing.

Having said all this, the rural poor also need access to land, in order to grow food both for their own use and as a source of income.

Community councils should be empowered and encouraged to

  1. Acquire land to let as crofts;
  2. Let land in units of normally not more than ten hectares on non-transferable, non-heritable liferent to applicants, in the first instance from the locality;
  3. Take over the management of lands in the locality on which title has been surrendered.

Question fifty

Are you aware of any potential costs and burdens that you think may arise as a result of the proposals within this consultation?

Any significant social reform involves costs to someone. Redistributing land, like redistributing any other form of wealth, involves costs to those from whom it is being redistributed. But seeing we are redistributing land in order to make its distribution more equitable, this seems to me entirely a good thing.

Question fifty-one

Are you aware of any impacts, positive or negative, of the proposals in this consultation on data protection or privacy?

Not that I can see.

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