Scottish Land and Estates, the organisation that represents some landowners in Scotland, attracted a fair bit of press coverage last month for their claim that potential reforms to Scotland’s agricultural tenancy laws could leave the Scottish Government open to compensation claims of £600 million (see Telegraph, Press & Journal, Herald). (1)

The claim was made in written evidence to the Rural Affairs, Climate Change and Environment Committee on 25 March 2015. The £600 million figure was derived from a study undertaken for SLE by estate agents Smiths Gore which purports to calculate the potential loss faced by landowners were reforms to be enacted.

The heart of the matter, however, is not the quantum of any possible claim. Compensation would only be relevant if there is a breach of the rights to property enshrined in the European Convention on Human Rights (Article 1 of Protocol 1). Moreover, such rights are not the only human rights that come into play when the Scottish Parliament enacts legislation.

As Professor Alan Miller, Chair of the Scottish Human Rights Commission, noted in evidence to the Scottish Parliament’s Rural Affairs, Climate Change and Environment Committee on 3 December 2014,

I am struck by how narrowly framed the debate has been. I am a little embarrassed that the way in which human rights has been interpreted is contributing to there being quite narrow parameters around debate about land reform and community empowerment..” (2)

Professor Miller expanded on this point at a very well-attended Scottish Parliamentary meeting was last week hosted by Michael Russell MSP on the topic of land reform and human rights. In attendance were several MSPs, a Government Minister and more than six civil servants including one from the Crown Office.

The meeting was addressed by David Cameron from Community Land Scotland and Professor Miller. In their presentations and in the discussion that followed, it was evident that convention rights of the sort being deployed by SLE are only part of a much wider spectrum of human rights that Scottish Ministers and the Scottish Parliament have to balance in framing legislation. Section 7(2)(a) of the Scotland Act 1998 obliges the Parliament to observe and implement all international obligations including a wide range of human rights that are not covered by the ECHR such as the Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights.

This perspective is diligently and authoritatively explained in a paper by Dr Kirsteen Shields from Dundee University’s School of Law published in the current edition of the Scottish Human Rights Journal entitled “Tackling the Misuse of Rights Rhetoric in Land Reform Debate”. (download available here) All with an interest in the topic and, in particular, MSPs, would be well advised to read this carefully.

None of these arguments will be new to anyone with any experience of international development where, since 1997, the rights-based approach has been adopted not only by the UN but by Governments and NGOs around the world.

Indeed the UK Government is an enthusiastic advocate of such an approach in its overseas aid programme. The Scottish Government is also bound by the terms of the Scotland Act to do all in its power to further the realisation of international human rights obligations.

The claims by SLE that landowners could be entitled to £600m of compensation is predicated on there being a breach of ECHR. Crucially, SLE has not published the legal advice upon which the £600m claim is based. During the Parliamentary meeting, I called for the organisation to do so and share this with MSPs. I await developments with interest since only by understanding the legal basis upon which any claim rests, can we judge whether any financial consequences might flow. Moreover, as the above paper makes clear, there is more to human rights than the ECHR.

All of which led Cabinet Secretary, Richard Lochhead, to dismiss such claims at the Rural Affairs meeting on 1 April 2015. In response to suggestions that compensation claims might be as high as £1.78 billion, he said,

First, the cabinet secretary is too broke to afford £600 million, let alone £1.78 billion. It would be more constructive and helpful in moving the debate forward if we had fewer silly reports such as that. SLE’s intervention and the figures in its report – which came when we are supposed to be saying that there is unprecedented collaboration and understanding of some of the key issues facing tenant farming – were unconstructive and unhelpful. It escapes me how those figures were arrived at. Given that we have not even published the legislation yet, there is no way for those with a strong view on one side of the debate even remotely to begin to work out any potential figures.”

Now that Parliament has been made aware of the wider human rights context in which it is, by law, required to work, it is to be hoped that such speculative and outlandish claims can be put to rest.

NOTES

(1) SLE is the representative body of 1351 landowners in Scotland who own 29% of Scotland.

(2) A fuller extract of his evidence..

I am struck by how narrowly framed the debate has been. I am a little embarrassed that the way in which human rights has been interpreted is contributing to there being quite narrow parameters around debate about land reform and community empowerment. I will just make a couple of points about the perception of human rights and its relevance to the committee’s consideration of the bill, because I am sure that others have more value to add.

The language that is being used – I heard the term “absolute right to buy” being used again this morning –  is very unhelpful, although I understand why people are using it. The European convention on human rights is not understood as providing a framework in which the legitimate rights of landowners and the public interest are reconciled and a balance is struck, with compensation being paid to the landowner if necessary. The right to buy is a qualified right: there has to be a competing public interest to override the right to peaceful enjoyment by the person who owns the land. Therefore, language such as “right to buy” or “absolute right” polarises the debate in an unhelpful way and does not reflect a clear understanding of what the ECHR contributes to the debate.

The bigger frustration that I have with the policy framework is this: human rights does not begin and end at the European Court of Human Rights in Strasbourg; there is a much broader framework of international human rights that are relevant to the Government and the Parliament, but which are largely invisible.

The Scotland Act 1998 calls on the Scottish ministers to observe and implement international obligations, of which one—but only one—is the International Covenant on Economic, Social and Cultural Rights, which places a duty on the Scottish ministers to use the maximum available resources to ensure progressive realisation of the right to housing, employment, food and so on—that is, it sees land as a national asset, which is to be used for the progressive realisation of what we might call sustainable development.

Therefore, what human rights provides is a broader impetus for land reform, rather than an inhibition, as is suggested in the way that the issue is currently couched—that is, in questions about whether a landowner has a red card that can be used with reference to the ECHR to stifle discussion about different use of the land. That is what is missing from the policy framework.”

 

 

146 Comments

  1. The £600 m or £1.8 bn estimate of claims assumes that landlords have a legitimate claim to 100% of the vacant possession value of tenanted land, which is clearly nonsense.
    A landlord value of 20% of VP would be a more accurate figure, as our arable and pasture fields were hewn from a wild landscape by generations of tenant farmers.
    Those tenants were not allowed to enjoy the fruits of their labour, which all fell to the landlord by rackrenting and eviction.
    Without a workable right to buy for tenants at a time of their choosing, the land reform bill is a waste of breath.

    • Hector
      The figures were assessed on the landlords interest only NOT 100% of VP. Everyone understands ECHR and other rights are a complex field and it’s important to note that SLE aren’t seeking to threaten anyone so comments to that end are misleading. As the rights framework exists it would be nonsensical not to consider what the implications post legilstaive change may be. If legislation increases the risk of a breach of rights then cases are likely. These will be disruptive, costly and not to the benefit of the tenanted sector. A fuller assessment of what alternatives exists to acheive some of the stated objectives of land reform and ag holdings reviews would be beneficial. There may well be more appropriate and less confrontational ways of acheiving those objectives that reduce the risk of a legal stramash.

      • We could do that. Or we could ask landowners to respect two important principles. The first is that the need to limit inequality is in the national economic interest. The second is that the moral duty of government is to create the most good for the most people not pander to the interests of a privileged minority who cannot even claim to have earned their wealth as a fair reward for any work they have done (a fine old Conservative principle, at least when applied to the rest of us).

        If land was infinite we could all have as much as we like. It isn’t, and so we have to share.

        • Landed gentry showing respect…hmmm….. I’m not holding my breath !

        • Noel
          What the government has not yet shown is that the redistribution of land, particularly given that the most productive and strategically important land (high quality farmland and urban land) is already owned by a vast number of people, would help “do the most good for most people”. The failure of the process in Scotland is that it is insufficiently focussed on outcomes. Is it actually necessary to deprive an individual of their property or can the general improvements in wealth and wellbeing be created by other means?
          Its worth bearing in mind that the “rights” that property owners enjoy form part of the legal structures that make us an ordered, civilised and un-corrupt society. They apply to all owners, large and small. If we erode these too far in seeking a balance between the wider good and the confidence the system brings to individuals we may be collectively worse off.

          • “that make us an ordered, civilised and un-corrupt society. ” Do you actually live here?

          • Doug
            Yes I do and by any assessment of nations I’ve seen that’s exactly what we are. That doesn’t mean there is never disorder, or a lack of civility or indeed corruption but I’d suggest it’s far from the norm and when compared with huge parts of the world we are lucky to live where we do. Apart from the weather obviously!!

      • ” that reduce the risk of a legal stramash” This time the poor will have lawyers , bring it on , your case will shrivel in the sunlight.

        • Doug
          You may think that’s a good plan but I don’t. The only beneficiaries will be the lawyers.

      • So if the tenants interest is tranferred to the tenant by ARTB, there is no loss at all to the landlord as he will be paid for his 50% of VP.

        • Hector
          But the landlords interest for a number of farms will be a lot higher than 50% because there’s no successor. There may well be other financial costs to the owner in consequencial loss in value to other properties and enterprises. Who would meet these?
          And as we’re talking about public interest whilst I can see the private interest in your case I’m not clear about the public interest. Any way that’s old ground.

          • So you are now claiming the landlords interest is more than 100% of VP?

          • Hector
            Theoretically possible but not likely. To use an example. The Home Farm on Estate ‘x’ is let on a 1991. It surrounds the main house and includes the park in front of the house. ARTB introduced and tenant exercises. Tenant has no heir or eligible successor. Value of farm assessed at 80% of VP. main house suffers devaluation of £500,000 because loss of ownership of park and surrounding land. Who pays? Tenant does get added value so won’t want to. Taxpayer? Bet they’ll be delighted. In anycase you can see that the “cost” could exceed 100% of the VP of the farm. I accept this wouldn’t occur in most cases but could be other consequential loss claims of small nature.

          • My, you can pick bizarre scenarios. How big is the field in front? 30 acres?
            Even at VP value of £10k/acre, that values the tenants interst at £150k .
            So a deal can be done a long way short of your £500k “loss”.

          • Hector
            I’m not sure I understand your point, if it’s that the owner could buy that field – the park – to avoid the loss on the main house then in theory they could though that pre-supposes that the acquiring tenant would agree. The point remains that the loss to the forced seller can exceed their interest in the holding alone. Academic as it happens as ARTB has been rejected.

  2. I always wondered whether landlords’ employees have a right for compensation after they’ve been put out of their jobs after a community take-over of an estate, such as the Vesteys’ 14 full time employees after the Assynt Foundation buy-out of Glencanisp and Drumrunie ten years ago (the Foundation provides 3 full time jobs, none of the 14 was re-hired). I think there is a strong case that they should have, and this should be enshrined in law.

  3. In any discussion of human rights in relation to the land, health has to feature strongly.
    There has to surely be some consideration of human rights in relation to the effect on health and lifespan, of actions taken to change land use, as in the destruction of smallholdings and farms cultivated over many centuries to make way for sheep, shooting estates, vast conifer forests.Plant based diets are being promoted heavily by world health organisations, international cancer organisations,but access to affordable vegetables and fruit was dramatically curtailed by actions as above.
    The people of Liddesdale were once famed for living to a very old age,and my father spoke of a with a gravestone in Ettleton Cemetery to a woman who died in the 18th century aged 113.Another died aged 109.In the one parish it is recorded in Border Exploits that 3 people had a combined age of 286 in 1812, when the book was published
    Huge acreage of very well worked productive lush farmland was taken out of cultivation at one man’s whim.Signs of tremendous labour to produce crops could still be pointed out in the 1960’s on the hill sides and even on the tops of the hills, great maiden ditches running some for as far as the eye could see.
    The people were evicted, and the plot of land given to them to build houses on, still regularly flooded right through to the main street over 130 years later

    • Scottish life expectancy 1821: 36.6 years. Scottish life expectancy 2010: 78 years.

      • What was the figure in 1800 before the clearances?

      • Reiner you make my point even stronger.This was an apparently very salubrious part of the country.

      • There is a lot of variation between areas still, even in districts less than 5 miles apart.two medical practices I know lying this close had an average age of death 30 years different one year recently.the leafy and the grey

  4. Andrew

    You mention ” it’s important to note that SLE are’nt seeking to threaten anyone so comments to that end are misleading ” .
    In your own words , Andrew , what did you hear Stuart Young , Chair of Scottish Land and Estates Agricultural Holdings Stategy Group and Chief Factor of Dunecht Estate say about compensation to landlords .
    I think that SLE and others with landowning interests were trying out their FEAR FACTOR to totally mislead the RACCE Committee and were caught out big time .
    It is in the recording for all to see .

    • GD
      SLE didn’t create ECHR and it would have been remiss of Stuart not to bring it up. The Government themselves will have poured over it and it would be helpful to understand where the proposals of the review group stand in potentially engaging ECHR. This isn’t about threats. In fact it’s quite the opposite. What is the point of creating an agricultural holdings framework which risks finding itself in the mire of litigation for the next decade. NONE AT ALL. It doesn’t help tenants and it doesn’t help landlords. If everyone else wants to walk blindly into that so be it (in fact I don’t think they do) but I don’t think SLE should be critisised for addressing the matter.
      We should also ask ourselves another question. Given that Europe is probably to most legally stable and sophisticated part of the world it seems odd that Scotland – which professes itself to be a great European nation – should be seemingly hell bent (in this particular field) on creating legislation that risks standing against some of those European principles. The problem seems to be an obsession with the ownership of land and more particularly removing it from a group of people whom the current political class don’t like.

      • Very interesting that you compare scotland to europe, where feudal landlordism and all its followers were “removed” hundreds of yrs ago.
        A radical reform of land in scotland certainly will help tenants, not to remain tenants, but to become owners. It wont help landlords, but who cares about them ? They have had it good for too long.

        • Hector
          You haven’t got feudalism here and in respect of farm leases you haven’t had for heaven knows how long. You have a contractual relationship (regrettably tangled in legislation) between two parties. It’s no more feudal than any other sort of lease.

      • I believe that Andy brought this topic up to illustrate the way that this subject has been hijacked and sidetracked for generations by legal and political machinations.
        Unfortunately for you , the times are changing and it cannot come a minute too soon . My sincere hope is that this issue gets huge prominence in the next few weeks as the more that ordinary folk get to know about the outrageous way that Scotland has been carved up amongst a few landowners will ensure a change .
        All the benefits of land going to a few families has got to be the biggest anachronism in modern Scotland.

        • Doug
          Except that interpretation isn’t the reality. We have the catchy 432:50 moniker but is it in the least bit surprising when you consider the nature of the land and it’s productive capacity in parts of Scotland. If you google the largest landowners in Norway you’ll find private owners will more than anyone in Scotland. Another country with plenty of wild landscape. If you consider who owns the other privately owned half of Scotland it will be hundreds of thousands of people from estates to houses. The anachronsim here is the myth still be pedalled is that Scotland is somehow “carved up”. Probably not been like that in the modern era.

          • I’ve googled. I’ve found one private owner who owns more land than anyone in Scotland. Just one.

          • Andy
            Thats the info I saw. Coverted to acres there is indeed one higher than in Scotland. I expressed myself poorly in the post above. The list shows a lot of sizeable private landowners.

          • But some of this ‘wild landscape’ you refer to, formerly supported a large population, so must have had very good productive capacity.John Byers writes that over 150 farms were named in the Rent -roll of the Lands of Liddesdale drawn up in 1541. Evidence given to a House of Commons Committee in 1858 by a local farmer said that there were 35000 acres in the parish which were capable with very little effort of being fit for any agricultural purpose, much of which had been previously worked by plough, ‘bearing in some instances to the extent of 60 imperial bushels per acre’.

            John Byers (1952) Liddesdale :Historical and Descriptive John McQueen and son, Galashiels

          • Iain MacKinnon

            I am dubious about whether Andrew’s comparison between the size of private estate holdings in Scotland and the size of holdings in Norway is valid. He brought it up in relation to the 432:50 statistic and seems to be suggesting he has information which shows that this kind of unequal distribution of land (432:50) is not abnormal and that the largest private landowner in Norway, for instance, owns more land than the largest private owner in Scotland.

            A few facts (from the Encyclopaedia Britannica on-line):

            The territory of Scotland is approximately 30,000 square miles in size

            The territory of Norway is approximately 150,000 square miles in size

            Therefore, the territory of Norway is around five times larger than the territory of Scotland.

            The population of Scotland is slightly larger than the population of Norway.

            Now I am no statistician but, in terms of the 432:50 statistic, which is the statistic that Andrew seeks to undermine, wouldn’t these facts mean that, for the landownership structure to be ‘carved up’ in a comparable way in Norway as it is in Scotland, the largest private landholder in Norway would need to own five times the holding of the largest private Scottish owner; and this largest private Norwegian landowner would need to be followed by tens – possibly many hundreds – with holdings larger than the largest holding in Scotland? According to what Andrew and Andy are both saying, this doesn’t seem to be the case and so it seems that the current ownership pattern in Scotland is anachronistic when compared with Norway, at least.

            PS Andy can you please put my e-mail on the notification list for new blogs on this site? I thought I had signed up to it but I’ve not been getting them. Thank you.

  5. Andrew

    Please Answer the question .
    In your own words .

    What did Stuart Young say about compensation for landlords ?.
    SLE have obviously discussed this at great length within the SLE Agricultural Holdings Strategy Group which he is Chairman . He looked very reassured with himself when he was speaking about the subject .

    • GD
      I wasn’t there so I have only the written report to rely on. So I’m not sure what question you’re expecting to be answered.

  6. I may vote tory this time, they are going to abolish the human rights act. They say it is being abused without taking account of the effects on wider society.!!!
    Come on the tories!!!!!!!

  7. SLE have form on the misuse of human rights law. During the passage of the last nature conservation bill at Holyrood they terrified the Scottish Government into abandoning any prospect of a statutory deer management scheme using the ECHR. The SNP gave in – despite a legal opinion suggesting it was a blustering, bullying intervention, paid for by Scottish Environment LINK. Two things struck me at the time. (1) Deer are wild animals and, very specifically, have no owners. They are res nullius under Scots law. (2) These are the very people who are demanding the abolition of the UK Human Rights Act!! I suppose we can conclude that (3) the rich have lawyers.

    • Andy
      I’m not clear that any body is misusing anything. I’d be very surprised if all the parties in the Ag Holdings review process haven’t either considered, or taken advice, on the potential ECHR consequences – if indeed there are any. And it’s not a black and white subject so people can’t take definitive positions. However as I’ve said before if it looks likely that proposed legilsation might engage ECHR based on the rights and case law then it would be pretty daft not to consider whether that might disrupt the implementation of any Act (to no ones benefit) or whether there are other ways of acheiving the public policy objective that don’t engage (or risk engaging) ECHR. This is a threat it’s a perfectly reasonable expectation of the proper preparation of policy.

      • It certainly makes sense to perform due diligence with legislative proposals – but this all sounds boringly familiar in terms of SLE brandishing human rights as a weapon to prevent any change at all. When they want to prevent any change they run to their expensive lawyers and start to throw their legal weight about. Frankly, it’s pretty cynical and disgusting and it’s about time that the lairds started to engage in the real debate on land reform with a view to developing modern forms of shooting rather than blindly defending their Edwardian nonsense practices.

        • Andy
          You might expect me to say this – I am a Director of SLE – but I think the characterisation of SLE’s position in the latter part of your post is unfair. SLE has tried to play a positive role in both the land reform and ag holdings review process in the latter case suggesting a number of reforms to the existing legislaion to improve the position of tenants. SLE and it’s members do engage all over Scotland in the debate and in some cases the debate itself will have caused reflection about local community relations etc. It’s handy to characterise landowners as tweedy toffs – makes good politics etc – but the reality is considerably less Edwardian than that.

          • Do you accept that the £600m figure is predicated on there being a case to answer under ECHR in the first place? If so, will SLE publish its legal opinion so that we can all assess the validity of the claim?

          • Unless I’m missing something in your question you’d need an infringement to make the potential payment of compensation a live issue. Its premature at this case to start publishing legal advice and in fairness I think the review group or SG should lead on that. My point remains that where engagement of ECHR looks a possibility it would be sensible for that issue to be aired at the earliest opportunity. That’s not about threatening anyone just trying to avoid potential paralysis later.

          • But it is SLE that has made this claim. I think MSPs and others are entitled to see the basis for such a claim so as to properly assess its validity and credibility.

        • Absolutely agree, publish the legal opinion , if it exists.

  8. Unfair? It describes SLE perfectly.
    SLE are not playing a positive roll at all, they are fighting a rearguard action of damage limitation.
    That is damage to their wallets and the salaried positions of those who defend them.

    • Hardly Hector. Have you read our submissions? Is SLE’s promotion of it’s members interests any less honourable than that of STFA or NFUS? You can agree or disagree with a position but I trust you accept the right of a body to put those views?

      • You have every right to put your views, but dont pretend you favour any sort of reform except the type that ruth davidson espoused the other day, ie freedom of contract in farm letting “sweeping away legislation”.
        Who put those words in her mouth? SLE i would bet.

        • Hector
          If you read our submission you will see we did NOT call for freedom of contract. Many members would welcome it but we have to work with political realities. Although a devolved issue I happen to think it’s helpful that Ruth Davidson espoused a different view. There is a risk of no opposition in Scotland and a descent into an unchallenged left of centre statist governmental approach. Whether you think that sort of government is good or not is up to you but it would be unhealthy not to hear a counterview. I thought it was therefore regretable that she was castigated in the way she was particularly when the approach she raised has had more success in freeing up land to let in England than anything we’ve conjured up with our collective wisdom here!

          • Depends if you view “freeing up land to let ” as a good thing.
            Let land and lairds belongs in the victorian age, along with slavery and denial of voting rights for ordinary people.
            Farmers should own their holdings, end of.
            The landlord tenant system is the greatest scheme of organised theft ever devised, the wholesale acquisition of tenants improvements by lairds to be squandered on mansions and london living has been and remains scotlands shame..

  9. Andrew

    After not answering my first question let me ask you another .
    Were you or are you involved in the SLE Agricultural Holdings Strategy Group of which Stuart Young is Chairman ?.

  10. OK. This discussion is looking like it might be another 250 comment thread on the merits or otherwise of the landlord-tenant system in Scottish agriculture. We’re just missing slurrystirrer.

    This blog is about the emerging understanding of the human rights based approach to development and the legal framework surrounding human rights in the Scottish Parliament.

    Please stay on topic.

  11. What are the human rights implications of the following case? A small company buys for 225.000 pounds a 4 acre plot from another company in a West Highland village in order to develop a business that previously lost around 100.000 pounds per year. A community-backed company gets involved and demands a share of the new business. The two parties fall out. The community-backed company, backed by Highlands and Islands Enterprise (HIE), offers to buy the land for 235.000 pounds. The owners turn down the offer. The community-backed company writes to the owner that it “would not be very rewarding” to run a business on the site without the community’s involvement and proceeds to form a community development company. The latter proceeds to apply for a Community Right to Buy (CRtB) order. The Scottish government grants the order and commissions a valuation. The valuation comes up with a figure of 85.000 pounds. The owners refuse to sell for that price which would mean they would take a hit of over 150.000 pounds. This happened five years ago. Since then, the land – a prime site in the village – has effectively been sterilized. Now, the community development company gets guidance from the Scottish government to extend the CRtB for another five years. Development gain: zero. Would you be able to make an assessment from a human rights perspektive, Andy? It obviously involves the right to enjoyment of one’s property under ECHR as well as more lofty community aspirations.

    • The Land Reform (Scotland) Act 2003 was passed by the Scottish Parliament after having been signed off by the then First Minister, the Presiding Officer David Steel, and the Advocate General in the UK Government as being convention compliant. It is open to any party, of course to challenge this but the only challenge to date has been under Part 3 which was found by the Courts to be compliant.

      • You are avoiding an answer, Andy! You say in your introduction, “there is more to human rights than the ECHR”. That sounds to me like a novel interpretation of European law for a signatory country that has embedded it into legislation, but however this may be, do you think the case that I described above comes under this wider umbrella where perceived economic, social or cultural rights should override the convention protocol 4.1, Article?

        • I am not in a position to comment on individual cases. It’s important to note from Dr Shield’s paper that the only human rights that the Scotland Act 1998 expressly states any legislation must be compliant with are ECHR ones. Those are the rights which the Presiding Officer etc has to be satisfied any legislation complies with. The vital point, however, is that in making such a judgement, other human rights which the Scottish Parliament is bound by the Scotland Act to observe come into play – that’s the balance that is involved.

          • The ECHR overrides the Scotland Act, or any other domestic legislation, that’s the whole point of it, so it’s not a question of balance. But I added, “should”, and I can’t see why you refuse to give a clear answer to a clear case. You are not a politician, are you?

          • I am not refusing anything. You asked me for an assessment – I am not in a position to provide one. It might well come under this wider umbrella but it is the Act that needs to be challenged if there is any such basis.

    • No-one has been deprived of their property in your example. The owners received a good offer and a poor one, and they appear to have fallen out with a community on which their business depends although its hard to judge who (if anyone) is behaving unreasonably based on such limited information.

      Personally, the ECHR looks like a bad route to take to challenge Scottish land reform. It explicitly puts the public interest above the interests of private property:

      “No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law

      “The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest

      Fundamentally this is not a legal battle over human rights. It’s a democratic, political battle. Support for any particular point of view must be won by arguments made in the public sphere rather than a court of law and the outcome will be decided by the electorate voting for the party which they think has the best policies.

      • Noel, the point of the ECHR is that it stands above politics. It enforces standards so that there will never be a recurrence of something like the appropriation of Jewish property by the Nazis, often cloaked as enforced sale in the public interest, or of the seizing of estates and farmland in East Germany. The public interest which can admit the taking of land by the state is generally understood to mean an overriding public necessity, such as an electricity pole on your land or, on a larger scale, building a road or an airport, however always with full compensation. There was one political violation of the principle, again in Germany, when the then chancellor Helmut Kohl agreed not to admit claims by East German farmers who had fled to the West for their requisitioned land, in order not to endanger the agreement to unite the two countries. This went unresolved through the European Court for many years. I must say, I lost track and don’t know what the final outcome was.

      • Noel
        Its certainly better to resolve the balance between public interest and private interest in policy making which gets the balance right rather than through the courts but the courts are there to address situations where governments, including such governments as Norway, get that balance wrong.
        Although the public interest trumps as it were, and nation states are given wide scope on what that means there are qualifications. It needs to be proportional, the losses of individuals addressed (if their rights infringed) and a demonstration that other measures to acheive the same objective were considered. Clearly this is a laymans interpretation but I think it’s the broad gist.
        My concerns certainly lye in the proportionality and whether alternatives are given full consideration. The land reform process seem to lack some of this rigour and suffers from too many policy makers of the same view who are not challenging their own thinking nearly enough.

  12. What about the tenants human rights to ownership of improvements carried out by himself or previous relatives?
    Houses and building were built by tenants or they paid for by them through extra rent. Land was drained and cleared at great expense, yet the lairds claim ownership of all.

    • Hector
      Protected by current law whcih is likely to be enhanced further in next Act

      • Tenants Improvements are not protected by current law, they are being charged rent wholesale all over scotland.
        Thousands of tenants have been diddled out of them being persuaded to sign a new lease or where a full 91 act tenancy was changed to limited partnership many years ago.
        Tenants improvements in england pass automatically from lease to lease, but our scottish land(lord) court allows them to disappear with a stroke of their pen..
        Without tenants capital and unpaid labour in improvements, scotland would be a barren wasteland,

        • Hector
          Attempting to keep this thread about “rights” your case is that in the instance of improvements they are not being protected. I’d contest this. There is a legal framework to address what should happen if a tenant wishes to carry out an improvement to a holding and the compensation that will be provided. Clearly the parties need to understand and implement the law and in some cases they won’t have. So, in response, SLE proposed an amnesty to address past failures to follow the law even where the tenant may have been at fault. The law can only provide the necessary protections. If some choose not to follow it and are therefore not protected I don’t think that is a “rights” issue. If one party seeks to thwart the law then the law should be enforced. The “rights” are therefore protectable and wider interest for agriculture of a tenant being able to invest is protected.
          There are checks and balances in this particular legislation, for instance addressing the landlords right to do the improvement himself or decline in specific circumstances. The question for land reform legislation and forthcoming Ag Holdings legislation is whether the necessary checks and balances are, or will be, in place.I’d argue there is a serious risk that the blinkered pursuit of landownership change without proper consideration of desired outcome or alternative solutions will mean the balance will not be correct with the result legilsation will be at risk of challenge with the disruption that causes to other parties decision making right across Scotland.
          The reform process risks creating an adversarial atmosphere in rural areas which is not good for long term investment and maximising potential. Perhaps finding solutions which are focussed on encouraging partnership would be more productive and less costly?

          • Your amnesty idea is useful but does not cover cases where a lease has been renewed and the cunning land agent has conveniently “forgotten” to mention that improvements must be carried through by letter or they disappear in a puff of smoke.

            Such cases are fraud, pure and simple.

          • One thing is sure, the balance is not correct at the moment, and the reform will correct it hopefully.
            Long term investment and potential is seriously hampered in our feudal landscapeand is a fraction of what it could be post ARTB.

  13. A big Like! to Andy’s comment above “This discussion is looking like it might be another 250 comment thread on the merits or otherwise of the landlord-tenant system in Scottish agriculture. We’re just missing slurrystirrer.” (Although SS’s comments are often the most persuasive on landlord/tenant.)

    So to bring this back to topic of people who make claims on the basis of evidence they are not willing to publish and share, could I, once again, challenge Andy to publish and share the data which backs up his claim that 432 people own half of Scotland’s privately owned land? Or if he cannot do so, to explain why not?

    • Hear! Hear!

    • What data would you like to see?

      • I imagine you must have a spreadsheet with a list of properties, owners and acreages totalling up to a figure that is half of the privately owned acreage.

        • No – the data is held in a database associated with a geographic information system. But is this all you seek? How do you know that landowner No. 346 in the list owns the xxx acres I attribute to her or him?

          • I’m just looking for a list of 432 names with their respective properties and acreages against each. I’m not expecting you to publish the data that justifies that no. 346 does indeed own xxx acres as opposed to xxy.

          • I will consider your request. This data has taken many years and a lot of time, effort and money to generate. I don’t publish lots of data freely without thinking carefully about the consequences.

  14. the figure of 432 is sometimes 435 or even 500. Someone somewhere must have details of who the landowners are, their landholdings etc. Andy if you can’t produce this who can?

    • Argueing over 432 or 500 is irrelevant, even if it was 1000, it is still too small a number.
      And the subject is human rights remember.

  15. It is not an argument about the number Hector. The question is who are they?

    • Thats the dificuilt bit, but you can be sure grand cayman and bermuda will feature in their postal addresses.

  16. I am sure that Andrew can help here being highly involved with S L E for so many years .
    If not , I am sure he knows who does .
    Membership for Scottish Land and Estates will probably be on a per acre payment with no maximum .
    Easy to work out ?.

    • GD
      SLE does not have as members all landowners so clearly not a complete picture but vast majority of members are UK residents, UK companies etc. Overseas domicility would definitely be the exception rather than the rule.

  17. Who they are is almost irrelevant, especially since most will be impossible to nail down to one person, ie the buccleuch estate, “owned ” by a company of 4 edinburgh lawyers each with £1 share.
    The point is that only 0.25% of our population own any land, while in ireland the figure is 3.5%.
    Ireland has 13 times the landowners that scotland has thanks to ARTB 120 yrs ago.

  18. I think it is important to have information and facts to hand when considering Land Reform the figure of 432 is banded about but can anyone actually say who they are & what percentages they own?

  19. The point here is double standards. Andy calls upon SLE to publish their legal advice to back up their human rights assertions while at the same time refusing to publish the data backing up his 432/50 assertion. It’s just not credible …

    • Hear! Hear!

    • So the only reason you want to see the list is because you don’t believe the results of my research?

    • Neil you’ve made your point but I’m not sure if it would be reasonable to pursue this any further in a blog post specifically devoted to the legal implications of human rights legislation on land reform.

      As far as I know, information on land ownership is available to anyone via the Land Register and the Register of Sasines. Research will involve some time and expense of course and any research which you complete will be yours to do with as you choose.

      Now, back on topic 🙂

  20. Neil

    432 – 500 must be a good ball park figure because it seems to have rattled some members of ” THE ESTABLISHMENT ” .

  21. There is a big difference between SLE hiding an opinion and the private results of andys research.
    Andy has no vested interest and is not threatening the govt with legal action, inlike SLE who are guilty on both counts.

    • Hector
      SLE is threatening no one with legal action. The point is that if legilsation is developed which looks likely to engage ECHR provisions then it’s sensible to address this as early as possible. SLE could not be a claimant. It does not wish to see legilsation passed which may well contravene ECHR because it could disrupt the sector for some considerable time. Whilst this may not concern you it will concern many others

      • But you admit the vested interest?
        Sle are threatening sco gov with claims running potentially to over a billion pounds. How else will they achieve this except through the courts?
        SLE does not want to see legislation passed which may force them to return stolen tenants assets .

        • Hector
          To repeat. SLE is not threatening anyone. They have said that, based on current proposals there may be a material risk of breaching ECHR. If so the potential compensation liability could be very susbstantial. It would be for individual property owners to take a view as to whether there has been a breach or not and pursue the case – through the courts. I imagine that one or two cases would form a test for the sector.
          My point, made repeatedly, is that we should try and avoid that by producing legislation that is unlikley to breach ECHR thus avoiding the cost and disruption. That doesn’t appear to me to be a controversial statement.

  22. Any research worth its salt is being peer reviewed and publicly accessible. That’s the point of research and science. Andy publishes results that have not been peer reviewed, nor is his methodology open to scrutiny. The figure he quotes has gained wide currency. Perhaps it is accurate, perhaps it is not – how are we to know? It’s not about “believing” or “not believing”. It is about knowing, or not knowing.

    • Generally speaking, books are not peer-reviewed and in academic papers, the research is never replicated. Its only the methodology that is scrutinised. But my findings have been cited in a number of academic publications that have been subject to peer-review.

      Publishing the list would do nothing to improve knowledge on whether the statistics are accurate or not – it’s merely a list. You would have to replicate the research to ascertain whether the figures are accurate. Given that the data that underlies the findings are all in the public domain in the Registers of Scotland, anyone is free at any time to conduct their own research and see if it matches my findings.

      • Science is underpinned by a simple idea: “trust, but verify”. I really don’t understand why you are so reluctant to put your data in the public domain. I don’t want to compare you to anyone, but one person whom I recall as similiarly reluctant was Andrew Wakefield whose research on MMR vaccination and autism was widely believed at the time. It was, for a while, on everybody’s lips, It was even published in the Lancet (peer reviewed by people connected to him, if I remember rightly), It led to loads of parents withdrawing their children from vaccination. It became part of a middle class belief system. But it was plainly wrong. In the end, the General Medical Council condemned his research, and the Lancet had to apologize. I don’t want to put you in the same bracket at all, but your figure is so much part of present day Scottish mythology (or, perhaps, reality) that it needs scrutiny. Otherwise, it has to be dismissed.

        • “I don’t want to compare you to anyone..” and yet you went ahead and did it anyway. I guess everyone is allowed to change their mind but please forgive me if I’m surprised to see that happen in mid-sentence.

          Should we not get back to human rights? It’s seems unreasonable to keep banging on about this when it’s not relevant to the topic.

  23. It is unfortunate not to have the full details of who the 432 are. For instance how many are charities eg RSPB , National trust for Scotland; how many are British individuals or companies;how many are EU individuals or companies; how many are non British individuals or companies etc ;is any government body one of the 432? What percentage does each own?How much land does each own? I do not understand the reluctance to produce this information. Such information will assist the debate about Land Reform. As the information is unavailable we all tend to assume that the major landowners are people such as the Duke of Westminster (or his holding companies) but perhaps that is not the case??

  24. The only conceivable reason I can think of for being so coy about publishing data which must surely be easily extractable into a spreadsheet of fewer than 440 rows and half a dozen columns is that to do so would make available freely information which normally has to be paid for via a subscription to Andy’s “Who Owns Scotland” website.

    I am fortified in this suspicion by the fact that Noel Darlow is leaping to Andy’s defence here and the WOS website says it was developed by Andy and Noel jointly. If my suspicion is wrong, then please just say so and explain why the list of the 432 can’t be made public.

    I am a paid up subscriber to WOS (and intend to keep renewing my sub for the foreseeable future) so I can’t be accused of trying to wheedle something for nothing by asking for the list to be published. I do not doubt for a second the good faith or the diligence and thoroughness in/with which the information about properties (area etc.) has been compiled. I do however have some reservations about the claims being spun out of that raw data and also (if it’s possible to have reservations about something one doesn’t know!) the methodology for compiling the list of the 432 – for example, have community owners like Storas Uibhist been included and are they counted as one out of the 432 or by their number of members or directors etc.?

    I don’t think publishing the list of the 432 would devalue a subscription to WOS. On the contrary, I think it would be quite a good marketing tool to pique folk’s interest to subscribe and find out more about their holdings (maps etc.) and also about other owners who aren’t in the 432.

    So come on Andy (and Noel), how about it?

  25. Let’s imagine that you are a reasonable person who wants to talk about human rights and land reform. Let’s also imagine that you are the kind of serious, thoughtful sort of chap who would cut off his own moustache rather than resort to crude, rhetorical devices like whataboutery.

    I have faith Neil. I know you can do it.

    • Noel,

      1) Am I right in my suspicions why Andy is taking such a long time to consider whether to publish the list of the 432?

      2) If I’m not, do you know the reason why it takes such a long time to deliberate on whether to publish?

      Both of these questions admit of Yes or No answers.

  26. I’m new here, but as i see it there is nothing in the ECHR that prevents right to buy let alone assignation of secure tenancies as these measures are in the general or public interest.

    Some appear to say otherwise and have hinted there could be legal issues. Fair enough, can any of you explain your justification for this view?

    • The potential issue is that the owner of the property would be either deprived of it completely or deprived of any real expectation of having it back to manage / run themselves. Whilst I’m sure some sort of case could be made that said this was in the public interest (and the nation state has some flex in what that means) the action also needs to be proportionate to the issues being addressed, other avenues be discounted and where appropriate compensation for loss of value paid. If you look at recent ECHR cases yu will see that it is entirely foreseeable that ARTB or assignation might over step the mark.

    • In the ECHR, the rights of individuals to “the peaceful enjoyment of their possessions” are asserted but then immediately taken away if they are in conflict with the wider public interest:

      “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

      “The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

      Let’s ignore the obvious case of a government failing to act in accordance with any applicable national or international laws since there’s not much scope for argument there.

      What it then comes down to isn’t really about legal arguments but rather who has the best moral argument. Provided that ministers could demonstrate a non-trivial public interest, any court would surely have to rule in their favour.

      Any attempt to challenge the Scottish government based simply on the assertion that the right to property is unassailable would be doomed to failure. That is explicitly rejected by the convention.

      A successful challenge would have to demonstrate that the government was not acting in the public interest and it wouldn’t be sufficient simply to, for example, present a right-wing political argument against a left-wing policy. In a democracy both views would be valid and it’s not the court’s job to rule on policy choices which should be decided at the ballot box.

      To this non-expert layman, I just can’t see anything which takes land reform out of the realm of legitimate policy and into that of human rights abuse. So far, the Scottish government appears to have been very cautious and considerate with lengthy periods of review and consultation and there is a powerful moral argument to be made for land reform, if they wish to make it.

      • Noel
        I am not arguing that the public interest can’t over ride private rights but this is a legal matter not just a moral one because ECHR exist as does the ability to test those rights and protections in court. Case law suggests that the court does not provide the state with the right to ride roughshod over private rights based on a public interest case. The legislative measure has to be proportional to the objective, a consideration of alternatives undertaken and compensation where necessary. If you lose land for a road in the public interest you are compensated. Why would the principle be any different in the case of ARTB or permanent loss of control through, in effect, perpetual assignation / succession. That’s where the large bill might arrive at the door of the Scottish Government. It’s a while since I read it but I think some of this is played out in Lindheim v Norway where owners of long lease residential sites for second homes lost control of their future use and the right to charge a market rent. From memory pertinent to Scotland.
        As an example of an alternative idea not sensibly considered in my view – if the objective of assignation for value is a pay off for the outgoing tenant (opening up by the way the prospect for premiums + ongoing rent for farms) why aren’t we using a retirement scheme which could be means tested and targeted at genuine retirees not any tenant. Hector will lambast me I’m sure but many tenants are not in need of a payoff to retire so the policy is poorly directed. In fact the wealthiest tenants will tend to occupy the best of farms which will attract the highest bids. A selective retirement scheme could be aimed at those in need. And potentially cheaper with no risk of ECHR stramash and the confidence impact on the sector that some of these proposals will have. But it’s not been considered fully because it doesn’t fit the political objectives of some of the main players in this saga.

        • So you would rather get the tenants off the land with a charity payout from govt, so leaving your landlord employers carte blanche to rentrack the incoming generation to ruin, and a lovely uplift in value to vacant possession levels to send more young lairds to Eton.?
          Get real.

          • Hector
            a. assignation wasn’t my idea – I think you’ll find it was promoted by tenants. I was simply illustrating that other options may not have been given full consideration.
            b. I’m not going to respond to the other statements given they’re legally incorrect and we’ve been over it so many times.

        • Sorry but I have researched the law myself and i see no reason for why ARTB would fall foul of the ECHR.

          It is not for the Court to decide on the relative merits of the measure, it has often been shown that the Courts’ view is that it if for the politicians to take those decisions. All the courts appear to be interested in is whether the measure is fair and proportionate.

          The case of James V The United Kingdom 1986 found that the Lease Reform Act 1967 which gave long leaseholders (tenants) the right to buy the freehold (ownership) at less than market value did not breach the ECHR. That case seems fairly relevant given that with ARTB we are talking about giving long term agricultural tenants the right to buy their farms.

          In this case the Court made the following statement –

          “Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken… Here as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.”

          This reinforces that it is for the relevant state to decide what is in the public interest. In this particular case the Court went on to find that the aim of the Leasehold Reform Act 1967 – greater social justice in the sphere of housing – was a legitimate aim in the public interest. Therefore greater social justice in the farming sector or rural economy would seem to be a legitimate aim in the public interest as well.

          James v The United Kingdom also dealt with compensation. Article 1 of the ECHR does not guarantee a right to full compensation in all circumstances: Legitimate objectives of ’public interest’, such as are pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value.

          The Court went on to find that the requisite fair balance had been struck in this case, although the estate of the Duke of Westminster did not receive the full market value on the transfer of ownership to the tenants. The Court noted that the tenant paid approximately the site value, but nothing for the buildings on the site. This clearly favoured the tenants, but because of the money he (or his predecessors) had paid for the lease (a capital sum) and money spent over the years on repairs, maintenance and improvements, the tenant or his predecessor in title had in effect already paid for the property. Accordingly, there had been no violation of Article 1 of Protocol No. 1.

          – This sounds like a very similar set of circumstances to long tenanted farms where the tenants improved the land, paid rent, carried out repairs etc etc.

          As I said above, if anyone is so sure of the fact that ARTB would breach ECHR then by all means show us your legal basis for this position. Unless you do this I have to say I don’t think you have a valid argument.

          • I’ve read that case too. There are more recent cases where, as a layman, I’d suggest the interpretation of the law has provided more direction as to the practical consequences of the infringement of private property rights in the public interest. Those tests are set out at the start of this blog.
            At this stage no one knows how the courts would address a claim arising from the implementation of proposed AHRG policies but it does not seem unreasonable to ask whether the risk of challenge has been considered and what the consequences may be in terms of cost and disruption.
            As a personal view, and setting aside the case law, I think that forcing one individual to sell to another against their will is morally wrong especially when one considers that such a blunt policy tool would take no account of the individuals circumstances, how the lease came into being and whether any “genuine” public interest benefit would arise. But then this isn’t about the public interest it’s about removing land from a group of people (usually incorrectly defined as toffs and absentees) because the current political elite doesn’t like who they perceive them to be or what they perceive them to stand for.

          • Its also worth bearing in mind that ARTB isn’t actually proposed so the “price” received by the owner is not relevant. It is possible that the changes proposed to Ag Holdings legislation infringe the owners rights whilst offering no compensation at all. That is where there maybe exposure even if a public interest case is made.

          • “Setting aside the case law” er, i dont think you can do that.
            Case law thankfully trumps your personal opinion.

        • To pick up on your point that many tenants do not “need” a payment to vacate, that opens up a whole new ballgame if “need” is to be the deciding factor.
          Does the duke of up the hill manor really “need” forty farms, forty farmhouses and 160 cottages?

          • Hector
            We’re not going to agree on this. You don’t appear to see any benefit in a let sector nor in the protection of property rights – at least not over an undefined level. I don’t share that view. If someone owns 40 farms and lets them out then I have absolutely no objection to that if they do so in a way which discharges their responsibilities as a landlord. Their rights should be protected in the same way as those for someone who owns one farm. Differentiating between the two, or at some other such artificial level, would be a legal and practical quagmire and .
            I would remind you again that it is not I who is suggesting that a payment is needed to encourage tenants to retire. I happen to think the reasons they hang on is more complex than need.

          • You are right, i dont believe in a “let sector” as it is currently. I do believe in protecting the property rights of tenants.
            I want to see all tenants becoming owners as soon as possible and confine landlordism to the dustbin of history, as europe did hundreds of years ago.
            You are right that is more complex than just money, we tenants get attached to our land and make it our HOME. To you we know it is only a spreadsheet but to us it is a living, breathing thing which we embrace every day of the year, come sun, rain or snow.
            Why else would we struggle on paying unpayable rents while keeping the creaking infrastructure farm together?

          • Hector, why do you think farmers are a special case? You say, “I want to see all tenants becoming owners as soon as possible and confine landlordism to the dustbin of history, as Europe did hundreds of years ago.” That certainly is not so, in particular as far as housing is concerned. House ownership in Germany is far smaller than in Britain. Many tenants get attached to their houses and make it their HOME, to use your capitals, just as you might get attached to your land. They still don’t want to become owners. They are quite happy with their landlords having to pay for improvements and upkeep. There are strict safeguards against evictions. Even if I wanted to use a house that I owned for myself or a family member, I couldn’t just turf the tenant out. Tenants have a right of first refusal to buy at market value if their landlord sells their house. There are pretty tight restrictions on rent increases. If you were talking about improvements to the legal framework of the tenant sector, there could be progress, and no ECHR violations would even have to be contemplated. But your radical agenda would just not stand up. You don’t seem to accept that landlords have rights, too. You just see them as bastards. But that’s just not good enough.

          • Hector
            This is about ECHR so I will resist the temptation to respond to all your points save that you don’t have a monopoly on attachment to the land. Tenants rights, more than any other type of tenant I can think of, are comprehensively protected already and it’s a nonsense to suggest otherwise.
            Interestingly one of Andy’s other blog posts critiques Scotland for it’s low level of let land so clearly the market in Europe has identified a need. So even if you got what you wanted letting would re-emerge quickly, probably on a short let basis initially.

          • How can a landlord have an attachment to farm he hasnt set foot on for 30 or more years? To compare a farmers attachment to his land to a landlords distant relationship with it is laughable and also insulting.
            And your belief that tenants improvements are protected is also laughable.
            If they were, why are you proposing a limited amnesty?

  27. If the duke of buccleuch lost a few properties, would he even notice? Does he even know where they are?

    • And if you only owned 1 property, as some landlords do, you’d notice it very much. Handy for you to continually light on the Duke of Buccleuch but the vast majority of let farms are owned by small landlords – but then that’s not such a sexy message is it Hector?

      • A small landlord with only one farm may perhaps have a case in ECHR, but the vast majority of let land is with big estates which must be broken up by ARTB.

  28. The circumstances we have here are sufficiently similar to those of the James case that it would appear that whether ARTB is in the public interest or not is not in issue. It clearly is with the increased social justice and rejuvenation of the agricultural sector that would result. We are talking in many cases of farm tenant families who have been on the land for decades, if not over a century. In many cases the farm tenant family has a longer connection with the holding than the landlord and as Hector has said the tenants have built the holding and improved the land. Without the tenants some landlords would own nothing but bog and heather.

    That leaves us with considering if the measure is fair and proportionate. The Court has suggested that if ARTB is implemented in an even handed way that affects all landlords of secure tenancies the same way then it passes these tests.

    As far as any arguments about value go, as far as I am aware are not talking about no compensation here. Tenants who buy (not all will) will pay the landlord for the holding. The way of calculating this compensation may be up for discussion but that is something that can be dealt with. It would be debatable what a landlord is actually losing when all they have ever done is collect rent and in some cases they have never even set eyes on the land.

    The other difficulty the opponents have is that we have the crofters right to buy to consider. There are many similarities with the ARTB proposal and crofters right to buy has never, as far as i am aware anyway, been challenged successfully.

    As said before, if you disagree then by all means then show why. I think I’m right that when the £600 million figure was mentioned a legal opinion was referred to. It would be useful if everyone could see it.

  29. Reiner, housing is a bit of a diversion, and i am guessing you are german?
    What penalties are there in germany for a landlord who illegally evicts or puts the rent up too much?
    I see the merits of your arguement, but the UK is not germany, and therefore ARTB is the aim.

    • And i dont see landlords as bastards, i know they are.

      • ARTB is a distraction here in that it isn’t proposed so I won’t go over old ground save to say that the fact the government could put a public interest justification is not the same in my view that there is a genuine public interest case. Just stating that owner occupation is better and that landlords have never done anything is simplistic and wrong but that’s a discussion for another blog.
        That aside the work SLE referred to looked at the potential impact of the proposals put forward by the AHRG such as wider succession rights and assignation foir value. These proposals potentially impact on a landlords property rights and ability to manage their asset. As no compensation is proposed to address any loss of value there appears to be a risk of exposure. I agree that with ARTB there is a price in the tenant purchases although I’d draw your attention to my earlier comments above that the value the tenant might be expected to pay may not reflect the wider losses to the landlord.

        • So if there is no “wider loss” to the landlord, you wouldnt oppose ARTB?
          The tenants will pay 50% of VP less their valuation of improvements. Any wider loss i am sure can be discussed. Now lets get on with it.

          • Of course I don’t support it. My point above made that clear – I think it’s morally wrong. I’ve no evidence of even the flimsiest public interest case – statements by you and others that it would improve productivity come without a shred of substantiated evidence – that such a move would provide wider public benefit. Plenty of private benefit to the tenant who gets to exercise but no wider public benefit.
            Anyway we’re off topic so we’ll get told off if we’re not careful.

      • And I bet they think highly of you Hector!

  30. The public benefit of ARTB is the wider ownership of land, which is a legitimate govt aim.
    We have all witnessed the massive jump in investment and jobs after tenants buy out the landlord, those of us without blinkers on anyway.

    • Hector
      It may be a government aim but that’s not the same as being in the public interest and as for your claim about jobs and investment I can show you hugely successful and diversified business based on tenanted farms and some awful ramshackle owner occupied ones. But like your claim it proves nothing. Are you aware of any proper studies or reports on the matter? You also have to consider the wider potential benefit of having a functioning let sector for the agricultural sector full stop in providing flexibility, cheaper access to land etc etc. Its lazy of proponents of reform to just state these things are in the public interest when there’s not stated end game in terms of land use strategy, outputs etc and no proper examination of whether land ownership is in fact the important issue some like to think it is.

      • So the govt aim of wider land ownership is not in the public interest? Hilarious.
        Dont you mean its not in the landlords interest?
        Anyone with a pair of eyes and half a brain can spot the blighted tenanted farms in any part of scotland.
        We have not a functioning let sector for about 50yrs, it has been disfunctional, far better to scrap it.
        And the let sector just got a whole lot smaller thanks to your chums withdrawing seasonal grass lets from the market.

  31. The first reason why i have focussed on ARTB is that the comments by the politicians during the last rural committee session made it quite clear that ARTB may have been dismissed by the review group but it was most certainly not off the politicians radar. They are not bound to implement the report word for word and can go further if they wish.

    There would be a clear public interest benefit from ARTB and the way you merely dismiss this because of your ideas of what is moral or not tells a story in itself. If you opened your eyes and visited places such as the former Panmure Estate where tenants bought their farms and have ended up going from strength to strength, bringing huge economic benefits to the surrounding area, you would see that these former farm tenants were being held back by their landlords before they became owner occupiers.

    The second reason for bringing up ARTB, is that the landlord’s lobby have gone all out to attack the watered down assignation proposals put forward by the review group by making so far unfounded claims that they would breach the ECHR. They have also tried to stare down the Scottish Government by threatening them with huge compensation claims that appear to have no basis in reality. It is therefore worth putting forward the argument that if ARTB can be easily justified in the general or public interest, there is not a chance that these weak assignation provisions would fail on this point and therefore that the landlord’s lobby’s position is most likely flawed.

    The final thing to say is that my commenting on ARTB and how it would not breach the ECHR is entirely on topic. The blog is about people misusing ECHR arguments to justify their opposition to land reform. My demonstrating that in fact ARTB would most likely not breach ECHR and your failure to provide a rational argument and instead using your own personal opinion as a justification for your position appears to be what this blog is about. If on the other hand you do have a credible legal opinion to prove your argument then by all means put it in the public domain. The longer this goes on the more your opponents will suspect that the much vaunted legal opinion may not be all it is cracked up to be. Playing chicken with the Scottish Government without a decent case behind you could seriously backfire.

    • What I said was that I have not seen a public interest case made for ARTB. It just gets stated as a given – which you and hector have repeated. You have cited an example in Panmure which of course happens to be some of the best ground in Scotland and was occupied, at least in part, by some very successful farmers before they purchased their ground. If my memory serves me correctly at least one was a significant owner of land elsewhere. We can all trade annecdotes until the cows come home but what remains absent, so far as I am aware, is a formal review or assessment of the claim that increasing owner occupation would benefit Scottish agriculture and the wider public interest.
      I accept that my personal opinion is neither here nor there. It is however being taken out of context in that I was simply asserting that my own opinion, regardless of the ins and outs of ECHR, that forcing one individual to sell to another is morally wrong. I wasn’t for one minute suggesting that opinion somehow trumps the law as it is interpreted. That of course is a matter for the courts
      In the meantime if any body should set out it’s view on ECHR compliance it is the government. SLE does have an opinion as I’m sure does the government. It is not using it as a threat but perfectly responsibly pointing out that if there is a risk of contravention or challenge it’s as well considered now rather than later.
      You have asserted in your opinion that ARTB would not breach ECHR – your opinion being OK, mine less so perhaps – which is quite an assumption. The James case provides some guidance but there has been a number of further relevant cases which suggest the situation is at least complex and potential difficult. If that’s what the government believes then it will make it’s decision. However the idea that wouldn’t be challenged seems unlikely with all the disruption that brings
      I think this subject has now been done to death so I will leave you all to it.

      • Andrew

        The fact that you have decided to stomp off like a petulant child when the weaknesses of your argument is exposed speaks volumes.

        The thing that you do not seem to understand is that the Court takes the view that it is for the relevant legislature to decide whether a measure is in the public interest or not. It is not for the Court and it most certainly isn’t for you. James v UK is still referred to as an existing authority in current legal textbooks such as Private Law and Human Rights: Bringing Rights Home in Scotland and South Africa edited by Elspeth Reid and D. P. Visser.

        Finally here is a section from the judgement in James v UK that spells out the point I have been trying to make and that you have refused to accept.

        “3. Whether the leasehold reform legislation complied with the “public interest” test and the remaining requirements of the deprivation rule

        (a) Margin of appreciation

        46. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken (see, mutatis mutandis, the Handyside judgment of 7 December 1976, Series A no. 24, p. 22, para. 48). Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.

        Furthermore, the notion of “public interest” is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgment as to what is “in the public interest” unless that judgment be manifestly without reasonable foundation. In other words, although the Court cannot substitute its own assessment for that of the national authorities, it is bound to review the contested measures under Article 1 of Protocol No. 1 (P1-1) and, in so doing, to make an inquiry into the facts with reference to which the national authorities acted.”

        Seems very clear to me. Unless the decision of the national authorities is manifestly without reasonable justification the Court will not challenge it on the basis of it not being in the general or public interest.

        The longer the landlord’s lobby withhold their legal opinion the more it looks like what we have here is a bunch of wealthy landowners trying to face the Scottish Government down with threats of legal action. This tactic doesn’t surprise me as the landlord’s favourite go to tactic is to try to intimidate their tenants into compliance, but to try to threaten the Scottish Government in the same way seems very foolish to me.

        • No one has stomped off anywhere like a “petulant child”. I was not unreasonably making the case that we were going round in circles and whilst you may have the time and inclination to argue the toss I do not. I have read the James case, thank you, first having done so some years ago. I’ll also remind you that the point at hand is not about ARTB but the impact of other legilslative changes to the relationship between landlord and tenant where to date no mention has been made of compensation to the landowner. There are plenty of other cases than James determined by the Cts which lead me to conclude that your confidence in a smooth path for these changes is potentially misplaced. The fact they won’t acheive their stated objective is another good reason for reconsidering them but then I don’t suppose anyone will because debate has nothing to do with the health of let sector and everything to do with being an offshoot of the land reform debate.
          This time I won’t be responding – taunts or otherwise. This discussion has become polarised and further tooing and froing is going to shed no further light on the subject.

          • The only ones who can shed light on this are SLE , by publishing their legal “opinion” on ECHR violation.

  32. Andrew I think what is probably at the back of ARTB is that it is not morally wrong to force someone to sell land that they have never purchased as it was probably immorally accquired. My opinion is that any landowner large or small with a written proof of purchase showing the money paid should be excluded from ARTB.

    I think you alluded to this when you said that rents should not be linked to a return on the value of land which bares no relation to its agricultural value today but which is often brought up at rent reviews by land agents on land that has never been paid for.

    For the record I understand that your approach to the grass lets situation this year is a very fair one. It is a pity your example is not followed by others.

    • That is quite an interesting view, which might work, and i would add that if the landlord can demonstrate that all the improvements made on the land have been fully compensated, he may get a higher price, but no more than 50% of VP.

    • Once the word “moral ” is introduced, by mr howard, it opens a whole new ballgame as A tenant says.
      The way all these estates were obtained was largely immoral, whether by conquest or bought with drug money/ slavery/ piracy, or by the application of laws of entail to “legally” rob smaller landowners/leaseholders. Then there is the totally immoral aquisition of tenants improvements in more recent times

    • There’s been a seperate discussion on the ins and outs of how some owners got their land. In fact the majority will have purchased it. Some have crown charters and the like but even they may well have been subect to transfer and creation of a new more recent title. I fear it will be an unproductive mire to start making subjective judgments now about how land was original aquired given incomplete knowledge of the cicumstance, no knowledge of the original victims (if indeed there were any) and will no sensible ECHR compliant route to differentiating classes of owners – see Salveson. It would be just as difficult to distinguish between those tenants who got a secure tenancy post 1949 when the landlord knew he was granting an indefinite tenancy, from those who took on a term tenancy pre 49 and got one by default and those who had a seasonal grazing let and decided to claim a secure tenancy. I think the only sensible thing that can be done is to start from where we are with the facts as they are known today.

      • But the minority with the ownership of the largest areas will never have paid money for it in return for backing the King or leader of the day centuries ago.

        • The only sure way not to breach ECHR is that all landlords of secure agricultural tenants get treated the same way. Therefore ARTB should apply in all circumstances where a secure tenancy is in place irrespective of how the landlord got the land.

      • You are right, there is no way to differentiate between moral owners and immoral ones, so apply ARTB for everyone.

  33. The latest news from Scottish Land and Estates in relation to publishing their legal advice that there is a potential ECHR issue is

    “We have not yet reached a decision on whether to publish the advice at this stage but are keeping the situation under review.”