Pictured above – Daily Mail 24 January 2003

Ten years ago today (23 January 2003), the Land Reform (Scotland) Act 2003 was passed by the Scottish Parliament. The Act provides a right of responsible access to land (Part I), a right for community bodies to register an interest in land and a first refusal to acquire it if and when it is sold (Part II) and a right for crofting communities to acquire land under crofting tenure at any time (Part III).

Part I of the Act is widely acknowledged as a success. Part II has achieved very little and Part III has yet to be used successfully (the only application made under this Part relates to the Pairc Estate and is mired in legal actions – see Malcolm Combe’s blog for further details). The Land Reform Review Group is currently taking evidence on land reform in general including reviewing the Act. (1)

The debate in Parliament produced some passionate speeches. Bill Aitken led the debate for the Conservatives who opposed the Bill.

“The debate and the bill have nothing to do with creating a more positive and contemporary Scotland—it is all about the wrongs and injustices of the past. As I said previously, the bill is by any other name expropriation of property. Again, as has been said, the bill is a land-grab of which Robert Mugabe would have been proud. Mugabe in a tartan outfit – Ross Finnie – is exactly what we are up against.

Frankly, the bill is a disgrace. If it is voted through, this will be a day of shame for the Parliament. To those outdated class warriors and political dinosaurs who regard the activities of today and yesterday as a triumph, I say this: they must forget the wrongs and injustices of the past and put aside their current prejudices. The bill reflects badly on the Executive and on the Parliament, and it should not be passed.”

Allan Wilson (Labour) who was Deputy Minister for Environment and Rural Development and did much of the legwork on the Bill countered (Ross Finnie was Minister for Environment and Rural Development and Wilson’s boss.)

“As I said to comrade Finnie, commander in chief of the Scottish land-grab unit—[Laughter.]—it was the prospect of this day that kept so many of us going through the dark and often desperate 18 years of Tory government. We were determined to create the Scottish Parliament. The joint determination of the Liberal Democrats and the Labour party in the Scottish Constitutional Convention was to realise this day and to deliver land reform. Like others, I quote Donald Dewar: ―

‘Who could imagine such a land reform bill passing unscathed through the massed ranks of the House of      Lords?’ – [Official Report, 16 June 1999; Vol 1, c 406.]

Not I, nor anyone here. A Tory press release this week spoke of revenge for the Highland clearances. However, it is the Tory party that is living in the past. Comparing mild-mannered, west Highland crofters with the thugs of Zanu PF, or ramblers with the North Korean people’s militia, does a disservice not only to the struggle for the liberation of the people of such countries, but to the Tory party.”

The next day, Eddie Barnes, the then Scottish Political Editor of the Scottish Daily Mail wrote the front page story under a picture of Robert Mugabe (see picture above). In their wisdom, the Daily Mail though it would be a good idea to phone the Zimbabwe High Commission in London for a comment on the historic legislation (they could of course have asked myself or any number of people who actually understood the Bill). The High Commission duly obliged and you can read for yourself the helpful quote they provided.


(1) Evidence to the Land Reform Review Group can be seen here. An overview of evidence on the implementation and progress of the Act was conducted by the Scottish Government and can be downloaded here. It does not include a review of two years operation of the Act that I undertook in 2006 available here. The Rural Affairs and Environment Committee undertook post-legislative scrutiny of the Act in 2010 and commissioned a report from staff at UHI. The lead author of that report, Calum Macleod wrote an excellent summary of the review in the West Highland Free Press and Brian Wilson wrote a short opinion piece.


  1. In the Seton Fields registration (where you prepared the plan but the Scottish Executive nevertheless rejected it because the area to be registered wasn’t properly identified), was the area to be registered the red bits, the orange bit or both?

    I thought it was just the red bits until I read the sentence in your report (page 10) “What possible and legitimate doubt could ever have arisen in anybody’s mind that the land that was the
    subject of this application was the land shaded orange on the map?”

    The answer to that question is the big red bits on either side!

    • The whole red/orange area is the area to be registered. A small area in the centre looks more orange because the colour tint lies over a green (woodland) part of the map. Orange or red – the fact is the key shows a big red/orange blob and the map does too.

      • Well it didn’t help that the colour of the “red/orange” blob was different from either of the colours on the plan but it doesn’t excuse the SE from taking 66 days to point out the mistake.

        That apart, Reform 1 of the section of your evidence to the LRRG headed “Community Land” refers to the Scottish Ministers having “abused” their powers in the past. That allegation is under reference to the section of your Two Year Review of Pt 2 of the LRA headed “Administration”.

        In that section (final paragraph, page 10) you speculate about the possibility of conflicts of interest and even “corrupt practices” on the part of the civil servants administering the Act but you do not give any actual examples of how Ministers have in fact “abused” their powers under the Act.

        Can you give us an example here?

        • Civil servants agreeing with the applicant that a part of an application should be deleted and not form part of the application and then using that information as part of a recommendation to Ministers to refuse the application.

          • I must have overlooked that example in your review but you could equally characterise it as the civil servants working proactively to assist the applicants get their application into a mutually acceptable shape as “abuse”. After all, you yourself criticised the civil servants in the Seton case for not being proactive enough to ask for clarification of the ambiguous plan.

            Without further detail, it’s not possible to classify what you describe as “abuse”. Which case was it? In what circumstances was it agreed to delete part of the application?

            Is that the only example of “abuse” by ministers/civil servants? Are there others?

          • Agree abuse works both ways – am concerned about both. No time I’m afraid to rehearse all the background to this – it’s all some 3-5 years ago and can be retrieved if the Group wishes to pursue the point.

  2. What was the name of the site so we can check any correspondence preserved in the RCIL?

    • Holmehill

      • Ah, Holmehill.

        Just so everybody’s clear about the facts about Holmehill, it was Scottish Executive policy that Part II should not be used to subvert the planning process – in other words to allow NIMBYs to buy land to prevent its development.

        At Holmehill, it appeared a number of the supporters of the application were motivated by preventing development so the civil servants agreed with the applicant to amend the application to withdraw references to this.

        In other words, the civil servants agreed a change to the application to improve its chances. Which was well meaning of them although, for reasons I’ll come to in a minute, beside the point legally (if not “presentationally”).

        For whatever reason, however, the information about the “NIMBYs” (I’m using the word for the sake of brevity rather than to cast any aspersions on anybody involved with Holmehill) was put up to the Minister along with the rest of the application.

        But to jump from that to your assertion that the civil servants “[used] that information [i.e. about the “NIMBYs”] as part of a recommendation to Ministers to refuse the application” is wholly unwarranted.

        For a start, we don’t know the exact terms of the recommendation because it didn’t enter the public domain (unless you’ve FOI-ed it, of course). But we can deduce that the NIMBY-ist aspects would not have influenced it. The reason is that NIMBY-ism is only a factor against *timeous* (before the property has gone on the market) applications to register an interest. But Holmehill wasn’t a timeous application, it was a *late* (property already on market) application. And the reason it was refused was because it failed to satisfy the *additional criteria* for late applications. NIMBY-ism doesn’t enter into these. In fact, the civil servant accepted in the appeal that, had the application been a timeous one (i.e. where NIMBY-ism is an adverse factor to its success), it would probably have succeeded.

        People probably reading this thinking it’s a lot of legal yadda-yadda (and they’d be right). But considering you gave evidence in the Holmehill case (and you describe yourself in your Twitter biog as a “Hyper-empirical legal geographer”), then you ought to know better than to twist the facts of Holmehill into “abuse”. In doing so, I would suggest you are arguably “abusing” your position as a “commentator in the public eye”.

        So that’s Holmehill. Are there other examples of Ministers having “abused” their powers under Part II? (I know you don’t have time to give chapter and verse, so just name the cases so we can check them on the RCIL.)

        • “NIMBY”ism was part of Ministers decision as 39(3)(c) where they specifically refer to the petition pages that were never part of the application. There is a lot more material on the Holmehill case that is not in the public domain. In particular the written judgement did not accurately reflect much of the detail since there was no court transcript. The full story including why Scottish Ministers attempts to silence me are yet to be written up though they probably never will be due to lack of time and resources. I am not twisting any facts or abusing my position. Other cases included Neilston, Seton Fields, Kinghorn, Fairlie.

          • Yes, I see the NIMBYist elements of Holmehill did enter the decision – I stand corrected in that regard. The logic seems to have been that they wouldn’t have prejudiced its chances had Holmehill been a timeous application but prevented it surmounting the higher bar for a late application. But the NIMBYism didn’t affect the outcome, of course, as the application failed anyway for lack of good reasons for being late.

            There would be grounds for suspecting malpractice if the civil servants had egged the applicants into including the NIMBY stuff deliberately to sabotage its chances. But that’s not what happened. I’d guess that Messrs Gray and/or Bennett misunderstood the nature of any “agreement” one of them believed to have been reached. (After all, it’s not the only aspect Mr Bennett got wrong – he said you contacted him whereas your evidence was that you “thought” he contacted you.) Perhaps Mr Frew misunderstood the “agreement”. Whatever, this is cock-up not conspiracy and does not merit your loaded language of “using information against” applications and “abuse of powers”.

            You say “the written judgement did not accurately reflect much of the detail since there was no court transcript”. Are you implying the sheriff forgot some of the evidence between the proof and writing his judgement? Or something more sinister? Don’t say you don’t have time to answer that question!

            I don’t know anything about Neilston (except I believe they’re now the owners of the bank concerned). At Seton Fields, the SMs were guilty of nothing worse than dealy which is not exactly news. From what I can gather about Fairlie, the SMs entered litigation to uphold the registration (correct me if I’m wrong).

            Thank you for drawing my attention to Kinghorn. Mr Brewster’s submission to the LRRG is masterful and deserves their very careful attention. His measured, eloquent and sympathetic articulation of the KCLA’s frustrations with the Act made me sit up and take note. He managed that without having to bandy around unsubstantiated histrionics like “corrupt practices”, “abuse of power”, “using information against” or “attempts to silence”. That sort of stuff just destroys your credibility Andy.

            Finally, I absolutely insist you DO tell all about the SMs attempts to “silence you”. You can’t drop these hints without following up. It’s just too thrilling. Surely it wouldn’t be too much of a drain on your time and resources to write a blog entry about it?

          • I stand by my claims of abuse of process. There has been, for example a wildly inconsistent approach to different applications – the case referred to in my Review is but the most extreme. Factors were taken into account in assessing applications (such as likelihood of legal action by the landowners) which have no statutory basis. Holmehill revealed the existence of a “hidden policy” of Ministers etc. Indeed, somewhere I have a short story called Kafka and the Land Reform Police written by one of the members of the public who attended court. Seton Fields was treated differently by SE precisely because Turcan Connell wrote threatening letters to them and they panicked.

            I dont propose going into the SE attempts to silence me – this is what ended my relationship with the Scottish Executive.

            The Sheriff did not reveal much of the detail in his written judgement and made a number of errors in his recollection.

            I refute your allegation of “unsubstantiated histrionics”. I see no evidence of my credibility being destroyed by the use of such accurate language to critique the administration of the Act.

    • The name of the orang/red map site is Seton Fields.

  3. My point is that you throw out these highly loaded allegations like “abuse of power”, “attempts to silence” etc. but don’t back them up with facts so that the public can judge.

    Occasionally, when I press you hard, you very reluctantly (it seems) offer a tiny bit more information but more often refuse altogether by hiding behind the “I don’t have time” defence. Can’t you see that, by doggedly resisting backing up your allegations with facts, people might wonder how true the allegations actually are?

    What was the “hidden policy” of the SMs? revealed by Holmehill?
    Give me two examples of errors in the sheriff’s recollection?

    I expect you’ll tell me you don’t have time to answer but even if I profoundly disagree with your quality of journalism, I thank you for the debate. In attempting to research myself the answers to questions you don’t answer, it’s led me into some very interesting leads (e.g. the KCLA) and aspects of the LR Act I was aware of before.

    • It is you who are interrogating me on questions relating to issues 5-6 years ago. I am not volunteering these observations for public consumption (other than the fact that these comments are open to the public viewing this website). I will thus be even more restricted in my responses because the answers I provide lead to more demands for information. To answer these questions means finding the records, reading and digesting them and responding (thus opening myself up to a further round of questions). You are right – I do not have the time to devote this much effort to satisfy your curiosity. I am not hiding behind this as a defence – it is a simple fact.

      But I will answer your hidden policy question. This came out under cross-examination of Richard Frew when he announced that there was a “hidden policy” of supporting the commercial land market. This was one of many claims made by the Scottish Executive that had no basis in the legislation or the guidance and this particular response let the Sheriff to comment that the situation was Kafkaesque. One day I may write this all up and you will be in a better position to judge. Meanwhile, you might be interested in 3 case studies that were submitted by Caledonia Centre for Social Development to the LRRG. They are on the webpage with the submissions. The Seton Fields one will explain more about the Seton Fields case and why it was about a lot more than an administrative delay.

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