Image: Badinloskin, Sutherland

This is the Keynote Address by Professor James Hunter given to the Community Land Scotland Annual Conference, New Drumossie Hotel, Inverness, 21 May 2015.

James Hunter

In September 2009, the best part of six years ago, I was opening speaker at a Community Land Conference held in Harris.

The people there – some of you here today – were mostly from localities – from islands and estates – that, since the early 1990s, had been bought by the folk living on them.

We recognised in that a big achievement.

Our purpose, though, was not to celebrate success.

But, in a way, to do the opposite.

That’s clear from my own words that day in Harris.

I spoke, of course, of what had been accomplished.

More homes. More jobs. New businesses. Locally controlled renewables. Rising populations.

And above all else, what’s always seemed to me by far the greatest gain that comes from effort of the sort you’ve been, and are, engaged in.

What, at that Harris gathering, I called: ‘The boost community ownership gives to the self-esteem, self-confidence, of everyone involved with it.’

‘All this you know,’ I said then, ‘and I don’t propose to dwell on it.’

What I said next was this.

‘What I want to focus on is the public policy environment in which community ownership has taken off and prospered.’

‘For while community ownership,’ I said, ‘could not have succeeded in the absence of the tremendous efforts made by groups represented here, neither could it have succeeded without support from government and its agencies.’

‘It’s my belief,’ I said, ‘that, since the present Scottish government took office, this support, which grew steadily under previous administrations, has lessened very markedly.’

The government I spoke of was the SNP administration that took office two years earlier.

And since, let me be clear, I’m an SNP member, I wasn’t motivated by hostility to that party.

I was, I think, expressing what was then a common worry in community land circles.

A worry that, while in the early years of Scotland’s restored parliament, land reform, community land ownership, had been way up there in bright lights, those things – politically at any rate – had somehow ceased to matter.

That’s why, I guess, that Harris conference was called.

To work out what was needing done to put community land ownership, the wider cause of land reform, back on the Scottish government’s agenda.

Well that, for sure, ain’t something that need worry us today.

With a Community Empowerment Bill well through the Scottish Parliament …

With a Land Reform Bill being published in the next few weeks …

With all of that going on right now at Holyrood …

If anything, you wonder – now that land, and who controls it, is so central to our politics – just how the Scottish government’s got time for other things.

Why exactly this has come about is a big question.

It’s bound up, very clearly, with the wider politics of Scotland – with the way that, over the last year or two, for reasons we all know about, there’s been far more engagement, than for several generations, with where Scotland should be headed.

And not just constitutionally.

What’s been, what is, central to the thinking of an awful lot of people who, this last year or two, have got involved in what’s been happening … is something that goes way beyond where sovereignty’s located.

That something is, I think, a feeling that unfairness, inequality have of late become so glaring, so destructive … that this unfairness, inequality, need one way or another reining in.

This feeling’s not peculiar to Scotland.

Nor is concern about the damaging effects of inequality confined to people on the left.

Over the last year or so, there’s been growing recognition, in very many quarters, that extreme concentrations of wealth are not just damaging the world’s poor.

They’re hampering development across the board … by undermining the effectiveness of every capitalist economy.

Gobally, that view’s repeatedly expressed now by, for instance, International Monetary Fund president Christine Lagarde.

More locally, here in Scotland, to repeat, demands for greater social justice are increasingly bound up with politics of the sort that brought about the electoral drama that unfolded just two weeks back from today.

What, down the track, might a socially just Scotland look like?

Well, I’ve no exact idea.

But it wouldn’t be a Scotland, I believe, where half the country’s privately owned land is controlled by just 432 owners.

A lot of folk think likewise.

And that, I reckon, is one reason why the cause of land reform has of late been getting the attention that it has.

But it’s not the only reason.

Another one is you – Community Land Scotland.

From that conference in Harris, there emerged one main conclusion.

That the community land sector – the individuals, the local groups involved in it – had somehow to get organised.

The sector, it was thought, required a means of working out, and getting over, its collective – and distinctive – point of view.

A means of influencing public agencies and politicians.

A means of pressing the Scottish Parliament, the Scottish Government, to recognise that the need for land reform, for more community land ownership, had not at all been satisfied by what had been accomplished in the Parliament’s first session.

Important though that was.

Well, that means of getting over a community land sector viewpoint, it isn’t missing any longer.

You, to repeat, are it.

And I reckon you’ve been doing pretty well.

For starters, you’re encouraging, assisting, continued effort on the ground.

More and more of it – and this is heartening – in parts of Scotland where community land ownership is new.

Which is not to say that things are at a standstill in the areas where community land ownership – as we know it here in Scotland – first began.

In the Outer Isles, for instance, the most endangered species isn’t any more the corncrake. It’s the Hebridean landlord.

But like six years ago in Harris, it’s the politics of land reform I most want to touch on – what I called, back then, the public policy environment.

The institutional back-up to community land ownership.

The stuff that doesn’t of itself take more land, more resources, into local, and community, control.

But the stuff – like legislation, public agency support, the cash that’s needed for land purchase – the stuff that makes it easier for people to take charge of what’s around them.

Community Land Scotland’s made a difference – a big difference – in that area.

The arguments you’ve developed, the contacts that you’ve made, the influence you’ve managed to exert – all that’s helped greatly to re-energise the land reform process – a process that, six years ago, we felt had almost stalled.

In doing what you’ve done, if I may say so, you’ve been helped by your leadership.

And not least by your chairman.

He told me that on no account was I to say this.

So I reckon that’s my dinner out the window.

But David Cameron, I believe, has helped enormously to get community land ownership to where this cause now is …

Some milestones:

First, the Scottish Land Fund.

It’s re-establishment was something we called for in 2009.

Now it’s back.

And with more money. Not enough of course. It never, ever is enough. But that the Land Fund’s up and running once again is evidence that progress is being made.

The same’s true of the setting of a target of one million acres – nearly twice the present total – in community hands by 2020.

Still more significant was the setting up by government of the Land Reform Review Group.

With which I had a brief connection.

And which, after I left … and I hope the one thing didn’t follow from the other … and which after I left produced a report that’s both a good analysis of what wants doing and a pointer as to how it might be done.

From that there’s followed legislation.

The Community Empowerment Bill owes quite a bit to Land Reform Review Group recommendations.

The Land Reform Bill will owe a great deal more.

A word now about that Bill.

Uninformed, I stress, by any inside knowledge of what it might, or mightn’t, look like.

But informed by the consultation paper that was issued late last year.

And especially by what I think is the paper’s key suggestion.

In its Chapter Two.

Where you find what’s called a Draft Land Rights and Responsibilities Statement.

‘This [draft] statement,’ I quote, ‘ proposes a vision and a set of principles to guide the development of public policy on the nature and character of land rights in Scotland.’

I leave aside, for present purposes, the vision.

And of the consultation paper’s seven principles, I’ll touch on only one.

The first and – I believe – the most important.

It reads: ‘The ownership and use of land in Scotland should be in the public interest and contribute to the collective benefit of the people of Scotland.’

By way of underlining that, a borrowing from Donald Dewar.

When, in 1998, he introduced the Scotland Bill – the devolution Bill – he read out its first sentence:

‘There shall be a Scottish Parliament.’

Donald paused then for a moment, and said, ‘I like that.’

‘The ownership and use of land in Scotland should be in the public interest and contribute to the collective benefit of the people of Scotland.’

I like that.

Because it makes the point that ownership of land is in no way absolute.

What owners do, or don’t do, with their land, that statement says, is not, and can’t be, wholly up to them.

It’s contingent on the agreement, the consent, of the society, the community of which they’re part.

In some ways, to be sure, there’s nothing new about such thinking.

Although Scotland’s never experienced land reforms of the sort that long ago rid other European countries of the concentrated ownership that we alone still have, more limited reforms have several times been put in place.

Reforms made in the public interest.

Like giving crofters security of tenure in the 1880s.

Like giving tenant farmers similar – though less generous – security in the 1940s.

But reforms of that sort have had specific, limited and clearly stated purposes.

As did the Scottish Parliament’s Land Reform Act of 2003.

The new Land Reform Bill, if it includes a Land Rights Statement of the sort set out in last year’s consultation paper, will signal the arrival of a different approach.

One that opens the way not just to one or two particular measures but to an ongoing and evolving programme of reform.

A programme predicated on this powerful notion:

That the ownership and use of land in Scotland should be in the public interest and contribute to the collective benefit of the people of Scotland.

So how might a long-run programme of reform be developed?

Well, December’s consultation paper gives a steer on that as well.

Where it suggests that, in line with a Review Group recommendation, the Scottish government should establish a Land Reform Commission.

Which will have the job, presumably, of working out exactly what, beyond next month’s Reform Bill, will still need tackling if the public interest is to be secured.

Which is why the Land Reform Commission, if indeed we are to have one, has got to be got right.

This from Andy Wightman:

‘Key to the success of any such Commission will be its structure and remit. Clearly it needs to be autonomous and independent … [Members] also needs to be free of vested interest and [be] able to respond to a clear statutory remit without compromise.’

What might that remit be?

Well, I offer this from guidance given to the first Scottish Land Fund.

Not the present Fund. But the Fund launched in 2001 and afterwards – inexcusably – wound up.

One of that Fund’s objectives was simply this: ‘To diversify the pattern of land ownership in Scotland.’

Beyond that lay a recognition we need now to get back to.

A recognition that to have half of our privately owned land in the hands of 432 owners is, in itself, plain wrong.

 

Which is why a Land Commission needs to test, to scrutinise, each land-related measure to see if it’s …

Contributing to the collective benefit of the Scottish people … AND …

Helping to diversify the pattern of land ownership.

One more thought.

Arising from my having gone, on a Saturday in mid-April, to Glenfeshie.

Where Dick Balharry, who did so much for nature conservation, was being presented with a Geddes Medal by the Royal Scottish Geographical Society.

The day was, weather-wise, spectacular.

Some sun. Some cloud. Near perfect visibility. Snow still on the high tops that separate Glenfeshie from the upper part of Deeside.

The place a place of beauty. Seen that day at its best.

Which was good.

Because Dick, whom I’d known for a long time, was dying.

And just days later would be dead.

What Dick had meant to say that day was said for him by his son David.

There was media coverage of Dick’s message.

And if you didn’t catch it, you should maybe look it up. Because that message is important.

It has to do with how we might restore and rehabilitate environments and habitats that have been desperately degraded by misuse.

Evidence of just such restoration was all around us that day in Glenfeshie.

I hadn’t been around there for maybe 20 years.

And what I saw was truly heartening.

The rebirth of a native pinewood that, despite it’s having existed for millennia, appeared, until quite recently, to be headed for extinction.

Because of the priority given for ages in Glenfeshie – the priority given everywhere on properties like that – the priority to keeping up deer numbers.

With the outcome, in Glenfeshie, that no scots pine seedling there had reached maturity for at least a hundred years.

That the Glenfeshie pinewood’s now returning – without planting, without fencing – is down to stringent deer culls.

Conducted by a management team led by Thomas MacDonell – a local, Badenoch, man.

This team advised by Dick Balharry.

A team in place there in Glenfeshie because it’s owner is Anders Holch Polvsen – now in charge of more of Scotland than any other individual – except for the Duke of Buccleuch.

Mr Polvsen’s objectives are: ‘To purchase wild land to protect it against exploitation and to preserve as much wild nature … as possible for future generations.’

What might our prospective Land Reform Commission make of that?

Will what Mr Polvsen’s doing be judged to be, or not to be, ‘to the collective benefit’ of Scots?

I don’t know.

What I do know is that putting right the past misuse of Highland land requires more subtlety than seems to be allowed for in attempts to map what’s wild.

Not long after my trip to Glenfeshie, I was in Strathbrora.

I’ve been there quite a bit of late because, as David mentioned, I’m writing something presently on Sutherland.

My destination was a place called Ascoilemore.

Whose community, I think, I’ve got to know a little bit.

Which is a wee bit odd, I guess.

Because no-one’s lived in Ascoilemore for the best part of two centuries.

This being one of sixty-two Stathbrora townships destroyed in the course of the Sutherland Clearances.

There were eight, nine, ten, eleven dwellings there in Ascoilemore.

Now reduced to little more than squared off undulations in the turf.

I don’t know which of these vestigial ruins were once part of the house that – until Thursday 31 May 1821 – was home to a woman by the name of Jessie Ross.

I do know something of what happened there when, at two o’clock that Thursday afternoon, the house was entered forcibly by around a dozen men.

Those men, headed by a sheriff-officer called Donald Bannerman, were there to evict this young mother, her two small daughters, aged five and three, and her two-month old baby girl.

They were also there to empty the building of everything the Rosses owned.

Jessie’s baby, whose name was Roberta, had been born less than a year after another baby, a boy who hadn’t lived.

So Jessie Ross, then 27, had gone through, in twenty months, two pregnancies – one of which had ended tragically.

Unsurprisingly, she wasn’t in good health.

To Bannerman and his subordinates, this mattered not a bit.

They began by ordering out the little girls, Elizabeth and Katherine.

Their mother, unwell and hoping to safeguard the family’s belongings, refused to join them.

‘She would not leave … until the furniture was off,’ it was afterwards explained.

On Jessie Ross also refusing to help move the wooden cradle in which her baby was sleeping, one of the party, William Stevenson, picked it up – angrily it was said – and made to carry both cradle and baby outside.

Perhaps, as was later alleged, Stevenson was drunk – he and his colleagues having got through ten bottles of whisky the previous night and another three that morning.

Or perhaps he was just clumsy.

At all events, he somehow ran the cradle up against the house’s door or doorframe.

The baby, though not tumbled out, was badly shaken – and started crying in alarm.

She was still in distress when her cradle was set down in such shelter as a nearby dyke provided from a chill wind out of the north-east.

Here Roberta was found by someone by the name of Mary Murray – on her way to offer help to Jessie.

Like Jessie, Mary was a nursing mother.

Doing something we’d think unacceptable – but which, from the way it was reported, must have been common practice then – Mary Murray lifted the crying infant and quietened her, as a bystander put it, by ‘giving the young child a suck’ at her own breast.

The older Ross children weren’t so readily comforted.

Not long after the evicting party got to work, Elizabeth, the five-year old, was struck in the face by a piece of planking thrown from the house – Stevenson again responsible.

Elizabeth began to cry and, her injuries aside, neither she nor Katherine, her sister, could have been anything but traumatised by what was happening to them.

Both were said to have ‘looked cold’ and to be ‘trembling’ or shivering – their misery compounded by the fact that they already had, or were incubating, whooping cough.

Now rare, whooping cough was once a common childhood illness.

Its symptoms – a fever and the drawn-out cough from which the infection got its name – were always unpleasant, sometimes severe, occasionally fatal.

So what happened to Katherine Ross, might arguably have happened anyway.

But when, some three weeks later, the little girl died, it’s understandable that her father, Gordon Ross, unavoidably elsewhere when Ascoilemore was cleared, should have attributed her death to what he called the ‘inhuman treatment’ she’d experienced when the Rosses’ home was taken from them.

That, then, is how Strathbrora got to be the way it is.

From the hillside above Ascoilemore, the middle reaches of Strathbrora are laid out in front of you.

Devoid of habitation.

But awash with indications of there having for a long time been a lot of people here.

A mile or so away, at Kilbraur, another of the strath’s cleared townships, you can pick out the remnants of a broch.

From perhaps two thousand years back.

And in the shape of hut circles and the like, there are plenty signs of older settlements nearer hand.

Which is to say that, out of the last fifty centuries, this part of Strathbrora’s been lacking people for just two.

In relation to what went before then, Strathbrora’s present emptiness is very, very new.

And being new, might it not also, in the end, prove temporary?

Getting a new community, or new communities, established in Strathbrora, and the many places like it, will be more challenging than getting pines back in Glenfeshie.

It won’t happen this year.

Or next year.

It might not happen this century.

But my plea to Aileen MacLeod, who’ll be speaking here tomorrow, is this:

Don’t let any Wild Land Map close off that possibility.

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.”