01. May 2012 · Comments Off on Dividing the commons in 2012 · Categories: Democracy, Environment, Land Reform, Land Registration, Land Rights, Legal affairs, Politics, Poor had no Lawyers

A number of people in the SNP have been trying to persuade me that the Scottish Government is serious about getting land reform back on track. I am prepared to accept this once I see the evidence. Meanwhile events suggest that I may have to wait some time. Take the following, for example.

The Land Registration Bill is currently making its way through Parliament. It’s the first time a democratically elected Parliament in Scotland has ever had the opportunity to debate important questions around how rights in land are recorded and secured. I provided written and oral evidence in an attempt to broaden out what was a narrow and rather legalistic piece of legislation in order to incorporate some important reforms. See previous posts on topic.

The Economy, Energy and Tourism Committee has been scrutinising the Bill and published its Stage 1 Report on 6 March 2012. This was followed by a debate in Parliament on 14 March. Last week, the Scottish Government responded to the Committee’s report and one item in particular caught my eye.

It concerns the Committee’s suggestion that the opportunity might be taken in the Bill to repeal the Division of the Commonties Act of 1695. (1) This Act was passed by the nobility as a means of dividing and appropriating Scotland’s parish commons for themselves. The introduction of feudal tenure led to the legal view that what were originally genuine commons were now the undivided common property of the landowners in the parish and the 1695 Act allowed them to be divided. The Act was simple and straightforward and was extensively used such that today only very few commonties remain undivided.

The argument for repeal is unanswerable. Feudal tenure is dead and these commons should revert to their pre-feudal status. The 1695 Act was passed by a undemocratic Scots Parliament to increase the power and wealth of the nobility.

So what has the Scottish Government said?

“The Scottish Government does not think there is merit in doing so. The Act allows an area of commonty to be divided among the owners either (1) where holding the land as Commonty no longer suits the parties or (2) to allow enclosure and cultivation of the land. In modern common ownership, a similar end may be achieved by an action of division or sale. It is not desirable to remove this right from the owners of Commonty.” (2)

Now, there is a question over whether this Bill is a legitimate place to be repealing the 1695 Act but the Government are not making that case. They are making the case in defence of continuing to allow landowners to divide common land. In other words they are defending the legitimacy of a 17th century statute designed to grab common land from the people. I find that quite astonishing.

The Scottish Government should be repealing such manifestly illegitimate legislation, speaking out against land grabbing and returning what little is left of common land to the people. Instead, it is entrapped by a conservative legal establishment into legitimising corrupt laws the have no place in a modern democratic Scotland.

(1) See Chapter 7 in The Poor Had No Lawyers for further details of what I term the 4th land grab.

(2) para 24a in Scottish Government response.

29. March 2012 · Comments Off on Corrour Estate and tax havens. · Categories: Land Reform, Land Registration, Who Owns Scotland

As the Land Registration etc. (Scotland) bill makes its way through Parliament, those of us who wish to see a crackdown on tax havens being used to record title to land in Scotland might care to recall this story of Corrour Estate which was published in the Sunday Herald on 30 November 2003. The story ran on the back of a major investigation on the topic published on 5 October 2003.

Corrour Estate is now owned by The Corrour Trust.

29. March 2012 · Comments Off on Smart, successful Scotland requires transparent land ownership · Categories: Land Registration, Legal affairs, Politics, Poor had no Lawyers

The Land Registration etc. (Scotland) Bill is currently being considered by the Scottish Parliament. One topic I have raised is the question of beneficial landownership and land held by companies in tax havens (see previous posts on topic).The Scottish Government has made clear (cols 982-985 in Fergus Ewing’s evidence of 8 February 2012) that it is not inclined to entertain any prohibition or controls on ownership by tax havens. In the Stage 1 report of the Economy, Energy and Tourism Committee, MSPs concludes (para 219) that

219. We consider that the Scottish Government should reflect further on options for ensuring that the land registration system reduces the scope for tax evasion, tax avoidance and the use of tax havens, and that the Government should explain prior to Stage 2 what additional provisions can be included, whether in the Bill or otherwise, to achieve this objective.

The Scottish Government’s response to the Stage 1 report was published on 25 April. In response to the above, it responded that,

The Government has reflected on the Committee’s comments. While recognising the concerns in this area, it considers that any proposal surrounding transparency of ownership of land by companies would be difficult to develop, as there is no clear concept of beneficial ownership in Scots law. There are also issues of company law that would be reserved to the UK Parliament under the terms of the Scotland Act.

The Bill provides for the completion of the Land Register. A completed Land Register is the best way to ensure that it is possible to find out who owns particular pieces of land.”

In light of this, I was intrigued to note a question by Stewart Stevenson MSP (now a Minister in the Scottish Government) at First Minister’s questions on 9 October 2003 following an expose of tax avoidance by Scottish landowners in the Sunday Herald the previous weekend.

Land Ownership

4. Stewart Stevenson (Banff and Buchan) (SNP): To ask the First Minister what plans the Scottish Executive has to establish a publicly accessible and complete register showing land ownership in Scotland. (S2F-268)

The First Minister (Mr Jack McConnell):

Scotland has had a publicly accessible register of land ownership since 1617, which is being replaced by a fully computerised and plan-based land register of Scotland. Land registration is organised by reference to the old counties of Scotland and the new land register has been operational in all those counties since April this year. Registration first takes place when ownership is transferred.

Stewart Stevenson: Is it smart that our current land register conceals beneficial ownership of a huge part of our land? Is it successful to allow that concealment to be used to avoid effective tax collection? Should Scotland’s people be able to find accountable owners when they need to? Smart, successful Scotland requires transparent land ownership.

The First Minister: Stewart Stevenson raises two issues. One is about having a complete land register, towards which we are working. The register is added to when land is sold or transferred. In time, that will be a good asset for Scotland.

The second issue is beneficial ownership of land, which the land reform policy group has raised. In the previous parliamentary session, the Executive researched the subject and found that a strong case could not be made for implementing the changes that Mr Stevenson advocates. However, we will keep the matter open for consideration; I am sure that the matter will be discussed in Parliament over a long period.

(Scottish Parliament Official Report 9 October 2003 Column 2540-2541)