I am delighted to publish this Guest Blog by Douglas McAdam who is chief executive of Scottish Land & Estates. The article first appeared in the Herald newspaper today. It is published here in the spirit of a mature debate and those posting comments should observe this wise counsel. Comments policy is here.

Let’s have a mature debate that does not demonise landowners

Douglas McAdam 28 June 2013

The most ardent advocates of land reform in Scotland went into overdrive when they did not like what they saw emerging from the Government-appointed Land Reform Review Group.

Even though the group published an interim report containing measures that could be seriously detrimental to private landowners’ interests, it was not enough to satisfy the blood lust of those who will only be happy if rural estates are wrenched from their lawful owners, broken up and sold off.

Those in favour of draconian land reform try to claim the moral and emotional high ground. However, we are confronted with a debate about the future of the countryside, communities and rural economies that is not rational. Instead, we have a propaganda war where fact runs a distant second to fiction. To create a more mature and informed debate we should attempt to separate fact from fiction.

Take tenant farming. In a recent Scottish Parliamentary debate, one MSP referred to the terrible “oppression” suffered by tenants who, she said, were operating in a climate akin to the Highland Clearances. The fact is that the agricultural landlord and tenant relationship is already among the most heavily regulated in commercial property arrangements. Around 80% of tenants have virtually complete freedom of use and can pass on the tenancy to future generations. Tenants have unrivalled security of tenure.

The Supreme Court recently ruled, in what has become known as the Salvesen case, that a landowner’s rights were violated by law passed by the Scottish Parliament which prevented the landowner ending what is known as a limited partnership agreement with a farmer. Those in the industry who were aware of the real circumstances did not try to make capital out of the situation and knew this was a complex and technical case. But it was portrayed in some quarters as a charter for landowners to throw tenant farmers off their land, with hundreds facing eviction; emotive, but false. There is no possibility of mass evictions of tenants.

Last week, Richard Lochhead, Cabinet Secretary for Rural Affairs, criticised landowners for not bringing farm land to the market for rent yet 96% of estate land is already farmed under some kind of arrangement, with 70% being let to tenants. Farms do not become available every day to landowners or tenants. Estates are generally fully let but there could be opportunity if older generation tenant farmers retire and also if confidence could be given to the owner-occupier farmers to let land.

Inevitably, the land reform lobby focuses on who owns Scotland and how unjust it seems that anyone should own what is perceived as a lot of land. All too often we hear that half of Scotland is owned by a few hundred people. This is misleading. Yes, there are large-scale landowners but often they own low-quality, fragile land. In reality, the 16 biggest private landowners hold less land than the Forestry Commission. More importantly, the vast majority of people who own rural land own less than 1000 acres, accounting for many thousands of these people.

There is a rich mosaic of land ownership across Scotland. The Government owns land, as do local authorities, charities, communities, NGOs as well as private individuals; quite a healthy mix. The caricature of a few landed gentry exercising complete control over Scotland does not reflect reality.

In one of the few pieces of research carried out into public attitudes towards estates, the public revealed it did not think about estates often, enjoyed the facilities and thought estates should do more to promote their activities -– all perfectly reasonable observations.

A mature land reform debate should be about use and management rather than ownership. It is time for the debate to move forward and concentrate on making decisions, based on fact, that will help rural Scotland. Private rural landowners are a constructive and progressive voice to be heard in that debate.

Image: Commander Chris Hadfield

With kind permission of the West Highland Free Press, this Guest Blog reproduces Brian Wilson’s column in today’s paper.

The back of the envelope duly arrived in Sleat last weekend

Brian Wilson, 14 June 2013

The back of the envelope duly arrived in Sleat last weekend, borne by Alex Salmond.  What was written on it amounted to no more than a headline. But since headlines are his raison d’etre, that will count as a good result.

As pointed out in last week’s Free Press editorial, Mr Salmond’s sociable wee trip to Skye had taken on a different perspective due to the hostile response accorded to the interim report of the Land Reform Review Group and particularly the scathing comments from Jim Hunter, erstwhile member of that group.

It was not only the vacuous nature of that document which attracted comment but the inherent redefinition of land reform which it contained.   In effect, this had been reduced to a discussion of “community ownership” which, in turn, had been reduced to the level of Third Sector jargon, rather a part of any broad, reforming strategy.

Mr Salmond’s speech, and his subsequent comments, need to be measured against that unpromising backdrop.  Did he reassert the need for Scottish land reform – to address what he once declaimed against as “a problem, a question and a scandal in every part of Scotland” –  and recognise that a whole range of weapons will be required to address it?  No he did not.  Quite the contrary, actually.

The headline sought and obtained was about “a target” of one million acres under community ownership by 2020.  Targets are useful devices for politicians, especially when set at such a safe distance.  But to have any credibility, they need to be accompanied by a route-map which gives at least some clues as to how they might be reached.

Sadly, there was no room on Mr Salmond’s hastily scribbled envelope for such detail – leaving no more than an empty assertion which duly became the headline in the Scottish media which, in general, neither knows nor cares enough about these matters to explore beyond the press release handed to it.

At present, there are roughly half a million acres under community ownership, the vast majority of them in crofting areas and particularly the Western Isles. Much of the low hanging fruit has already been picked, thank goodness. And of course, there were the Stornoway Trust’s 63,000 acres already in the bag before the modern wave of buy-outs began.

So where are the next 500,000 acres of buy-outs to come from?  If Mr Salmond had the slightest clue about the answer then he declined to share it.  Take a number, double it and you have your headline. No need for anything more, First Minister.

The only other announcement was an extension of the Scottish Land Fund until 2016 with another £3 million in the pot which will now mean £9 million over five years instead of £6 million over three.  Anyone who thinks they are going to change Scotland’s land ownership structure with that budget is seriously deluded.  It is far less than the previous Scottish Land Fund operated with a decade ago.

Also, I can’t say that I am terribly impressed by how the new Scottish Land Fund has interpreted its role so far.  As I pointed out at the time, there was a danger in the remit of supporting the purchase of “land and land assets” – the latter term being capable of covering just about anything.  And so it has started to prove.

The early subjects of grants made by the Scottish Land Fund include a lighthouse in Moray, a village hall in the Borders and a smokehouse in Assynt.  I do not for a moment question the worthiness of these projects – but the idea they have anything do with land reform is a joke.  There has so far been no significant award which shifts the ownership balance by one acre, far less 500,000.

I also notice that the maximum grant which can be applied for to the Scottish Land Fund (Mark Two) is £750,000. This makes it unlikely that there will be any more buy-outs on a South Uist or North Harris scale within that constraint.  So once again I ask, what is the substance behind the “one million acres by 2020” target – and the answer is absolutely none.

But community buy-outs can only occur, even hypothetically, where there are viable rural communities. That generally means in crofting areas where a specific legal framework creates a rationale for collective acquisition. But most of rural Scotland is not under crofting tenure and much of it has been reduced to minimal populations under the existing system of land management.

From both Mr Salmond’s remarks and the Land Reform Review Group report, it would appear that these vast acreages have already been written out of any land reform agenda. Indeed, Mr Salmond and his colleagues have been going out of their way to offer that reassurance to the Scottish Landowners Federation as I will continue to call it.

In a BBC Alba interview last Friday, Salmond ruled out compulsory purchase on the grounds that “if we tried to compulsorily purchase land, we would end up for generations in the European Court of Human Rights”.  This is patently untrue and “blaming Brussels” for one’s own lack of action is a well-established refuge for political scoundrels.

If the option of compulsory purchase is ruled out in this cavalier way, then we will stay exactly where we are now – with no effective sanction against even the most extreme abuse of land ownership and control.

What is urgently needed is a clear setting-out of both options and constraints in terms of substantial land reform, open for comment and discussion –  not an ex cathedra assertion from the First Minister which has no obvious basis in fact and which, if accepted, would close down a crucial option for driving change.

The other issue on which there is now nothing but silence is the right of tenant farmers to buy their land – one of the most important means of changing the pattern of vast landholdings and feudal power structures in many parts of rural Scotland.  Is Mr Salmond saying that this too is forbidden by the European Court of Human Rights – or simply by his own anxiety to keep sweet with the landowners?

One observer present at the Community Land Scotland conference in Sleat described his speech as “going through the motions but without any indication of his heart being in it”.  That sounds about right.  But if that is the case, then the certainty is that nothing much is going to happen because in order to drive a land reform agenda there has to be belief and sustained commitment to overcome the powerful forces both externally and within Government.

It is both a tragedy and a warning that no such belief or commitment exists among those who currently hold power in Scotland.  The empty rhetoric of the past has been replaced with the conservative inertia of the present and, if we allow it, the future.

Image: Jane Lawson, London (Doctors’ Commons) : Judd & Co., 1881

We are pleased to publish this Guest Blog from Professor James Hunter, Emeritus Professor of History at the University of the Highlands and Islands. From 1998 to 2004 he was chairman of Highlands and Islands Enterprise and between 1985 and 1990 he was the first director of the Scottish Crofters Union, now the Scottish Crofting Federation. Until April 2013, he was a member of the Scottish Government’s Land Reform Review Group. The article outlines a radical way forward for reform of agricultural land tenure by moving to a more European model of owner-occupation and freedom to contract in the leasing of land. It makes eminent sense and could be the bold initiative that breaks the current impasse in the debate over agricultural land tenure.

This article was first published in the Scottish Farmer on 15 June 2013 and is reproduced here with its kind permission.

Time for a Lochhead Act?

Professor James Hunter 14 June 2013

In October 1900, Britain’s then Prime Minister, Lord Salisbury, made a fellow Conservative and fellow aristocrat, George Wyndham, Chief Secretary for Ireland – all of it, at this point, still in the United Kingdom. Three years later, Wyndham took through the UK Parliament the legislation that resulted in easily the most far-reaching land reform the British Isles have seen.

By enabling virtually all of Ireland’s tenant farmers to buy their farms and by advancing cash to help them do so, the Wyndham Act, as that 1903 measure is still known, eliminated big estates from Ireland and made the entire country, both south and north of the present border, a place where farms and smallholdings are overwhelmingly owner-occupied.

Might the review of agricultural holdings announced last week by Richard Lochhead, the Scottish Government’s Cabinet Secretary for Rural Affairs and the Environment, do for Scottish tenant farmers what the Wyndham Act did for their Irish counterparts?

To get the answer, it won’t be necessary to wait for the outcome of Mr Lochhead’s promised review. All that will be needed are details – to be revealed shortly – of how the review is to be conducted.

If the Cabinet Secretary opts for a review group representative of all the divergent interests with a stake in this key issue, it will immediately be apparent that a tenant farming right to buy (something that long ago transformed not just Ireland but lots of other European countries) has been ruled out for Scotland.

That’s clear from the record of the Scottish Government’s already established Tenant Farming Forum (TFF). The forum can only deliver on matters on which its members reach consensus. Since both landlords and tenants are represented on the TFF, and since they’re at odds over what’s best for them, the forum has so far delivered little.

A better model for Richard Lochhead’s agricultural holdings review would be the Land Reform Policy Group set up by the late Donald Dewar in 1997. The group, which paved the way for the land reforms enacted during the Scottish Parliament’s first session, consisted not of competing interests but of senior civil servants with the ability to draw as necessary on external (and non-aligned) expertise.

Most critically, the Dewar group was chaired by Lord Sewel, the Minister responsible in the pre-devolutionary Scottish Office for what’s now Mr Lochhead’s portfolio. Lord Sewel made clear what he and colleagues wanted by way of reform – and the group’s task was to work how how these reforms could be delivered.

So why doesn’t Richard Lochhead now set up and chair a similar group of high-ranking officials (drawing on external academic or other expertise as required) whose job will be to tell the Scottish Government how a tenant farming right to buy could be made to work in Scotland? A review group constituted on this basis might investigate:

  • Giving a right to buy to all farmers with secure (so-called 1991) tenancies;
  • Helping purchasing farmers by giving appropriate government backing to mortgage arrangements to be negotiated with banks;
  • Possibly extending similar right to buy opportunities to other (non-1991) tenants.

These measures would ideally be taken forward in conjunction with other land reforms already under consideration, such as expanding the area in community ownership, the overall aim being greatly to diversify Scotland’s land ownership structure by reducing the number and size of big estates and putting an end to the current ownership of more than half the country by fewer than 500 people.

But as well as exploring how to get farm tenants out of the ‘feudal time warp’ (as it’s been described by the Scottish Tenant Farmers Association’s Chair, Christopher Nicholson) in which they’re presently stuck, Mr Lochhead’s review group should look at the possibility of a right to buy for existing tenants being quickly followed by:

  • The repeal of all agricultural tenancy law.

This would create a situation where farmer-to-farmer rental arrangements (whether for a field for a year or an entire farm for ten years) would be on exactly the same basis as, for example, the letting of premises for a shop or some other business.

In the post-reform Scotland, which (like Ireland, Denmark and many other European countries) would be largely owner-occupied, then, there would be complete freedom of contract in respect of letting of land – just as there is with regard to other forms of commercial letting.

This would have the effect, among others, of making it easier for new entrants to get into farming. But the Cabinet Secretary and his review group might also consider helping new entrants further by investigating:

  • The formation of a farmer-led co-operative which would buy agricultural land with a view to establishing on this land a network of differently-sized starter units (of different farming types) which would be let (for five, ten or more years as appropriate) to new entrants renting under freedom of contract arrangements.

Such a co-operative might be pump-primed financially by government – but would thereafter be dependent on its letting income both to cover its costs and to generate an annual surplus sufficient to enable it to add to its landholdings and thus aid, over time, a growing number of new entrants.

Subsequent to getting rid of the plethora of legislation that’s been keeping lawyers and the Court of Session’s Lord Gill & others so busy of late, the one regulatory measure that might be required would be an upper limit on the area of farmland that can be owned by any individual or company – other than the farmer-led co-operative mentioned above.

This upper limit would vary in accordance with land quality. It would have the effect of dismantling and returning to individual farmers some of the bigger in-hand operations which have recently been taking shape on some estates. And it would prevent the re-emergence of something approximating to the sort of estates these reforms would be designed to remove from the farming scene.

There might, however, be no ban on the amount of land an individual might rent on a freedom of contract basis – thus enabling the formation, as appropriate, of large-scale farming enterprises.

And what of the barrier allegedly put in the way of any meaningful land reform by Article One, Protocol One (A1P1) of the European Convention on Human Rights (ECHR)? In fact, A1P1, which has to do with ‘peaceful enjoyment’ of property, need be no barrier at all. As Lord Gill commented in December, when ruling on measures that give crofting communities an absolute right to buy crofting estates, such reforms are perfectly in accordance with A1P1 – provided the Scottish Parliament takes care to ensure that the case for reform is made on clearly stated grounds of public interest.

Over, then, to Richard Lochhead. While it’s clear that his review group, if it were to have the sort of remit suggested here, wouldn’t have an easy job, it wouldn’t (as is shown by the experience of other countries) have an impossible one either. And all that’s required, in the first instance, is for the Cabinet Secretary (who pushed strongly for a tenant farming right to buy when in opposition) to launch the sort of review that shows he’s still committed to the one thing that’ll truly help a group of people who, though they include some of Scotland’s most go-ahead farmers, have for far too long had a really lousy deal.

Politicians holding office can opt simply to administer their departments – which means they’ll have a quiet life and quickly be forgotten. Or they can choose to promote game-changing legislation to which, as in George Wyndham’s case, their name will long after be attached. Time, then, for a Lochhead Act?