Monday 20 January 2014
Enterprise and Environment

Tavish Scott (Shetland Islands) (Scottish Liberal Democrats): To ask the Scottish Government what the definition of “fairer” is in the Minister for Environment and Climate Change’s comment to BBC Scotland that “There should be a fairer distribution of land, communities should have access to land to fulfil their aspirations.” (S4W-19122)

Paul Wheelhouse:

The Scottish Government recognises that the current distribution of land is highly concentrated, given that reportedly just 432 landowners own 50% of the privately owned land in Scotland and that this concentration of ownership may lead to constraints upon fair access to land to enable communities and individuals to achieve their full potential.

The Scottish Government cannot pre-empt the outcome of the final report from the independent Land Reform Review Group, or the outcome of the ministerial-led review of Agricultural Holdings Legislation which are both due to report back later this year. However, our vision is for a fairer, or wider and more equitable, distribution of land in Scotland where communities and individuals have access to land and, where such is lacking, that there is the necessary diversity of tenure. The Scottish Government believe that Scotland needs to ensure communities are empowered to consider how land in their community is used, and that the system allows communities to fulfil their aspirations. This government also believes that land should be available to provide opportunities for new entrants to farming and forestry. Scotland is on a journey to delivering land reform and to enable improvements to engaging with communities on optimising land use. This government believes that the nation’s land should be used to benefit the people and environment of Scotland to deliver sustainable economic growth with due regard for impacts on the environment and upon the health and wellbeing of communities across Scotland.

To fulfil Scotland’s potential, this government believes we need to build a society with greater diversity of land ownership, where communities have access to land to fulfil their aspirations and needs and to support business and employment in rural areas, including in traditional rural sectors, and for provision of community infrastructure, such as housing and green space. This includes community land buy-outs to achieve greater distribution of land to communities, sustainable development and realise increased economic vitality and employment. There are currently just under 500,000 acres of land under community ownership and the Scottish Government is committed to a target of achieving 1 million acres of land in community ownership by 2020. The Community Empowerment Bill will streamline and extend the existing community right to buy contributing to this target to ensure communities have access to land needed for housing, environmental and employment opportunities and the Scottish Government, as one of Scotland’s largest landowners, is active in exploring opportunities for creation of new community ownership projects through appropriate transfers of ownership from the Scottish Government estate.

Image: Black Law Commonty

The task at hand appears overwhelming. To restore the common ownership of the land & natural resources has been a goal of reformers down the ages but it has often met with limited success. Faced with legal frameworks devised and defended by elite interests, the citizen has had little hope of seeing meaningful restitution or recompense … which makes this week’s blog so sweet.

Tonight the representatives of Carluke Development Trust have been told that, after several years of investigation and tactical planning interspersed with long periods of waiting, a small parcel of ancient common land has been returned to the residents of their parish. It is a victory on an incredibly modest scale but it presents important lessons.

It was over a decade ago that I first noted from research that had been conducted by geographer, Ian Adams, what appeared to be an extant commonty (parish common) on the King’s Law north of Carluke in Lanarkshire. (1)


Image: Extract from Statistical Account of 1834-45 for Parish of Carluke

In 2005 I discovered a title to a neighbouring parcel of land (the dark blue in map below) which “a right of common grazing on the hill of commonty tinted yellow”. This was evidence that part of the “undivided common” referred to in the Statistical Account may still be common land although much reduced in extent (the yellow area is 33 acres compared to the 86 acres in the Statistical Account).

Image: Black Law Commonty (yellow)

What was even more interesting was that this parcel of land is in the middle of what was at the time the UK’s largest onshore wind-farm, Black Law, owned and operated by Scottish Power (see map below). They knew all about the land and, having concluded it was a common, decided not to install any wind turbines on it because they didn’t know who could competently sign the lease. Thus a combination of local ignorance of the existence of the commonty and unclear legal status meant that the good folk of Carluke missed out on a potentially lucrative source of revenue.

Image: Black Law Wind Farm showing how installations avoid the common.

In 2011, in collaboration with Carluke Development Trust, we began detailed research on the history of the land with a view to securing ownership for the community.(2) It was clear from the history of the site that it was a common. As far back as 1847, Thornmuir, the farm to the south, was being sold “bounded by that part of the common muir on the top of the King’s Law herein after described … and declaring that the said George Spence should have no right to that part of the common muir which is still undivided.”

For Scotland’s legal profession, however, my research was by itself inadequate since I am not a professional legal searcher. So a further sum of money had to be found to pay a “qualified” searcher who, knowing nothing of the law relating to commons, adopted the default legal view that there is no such thing as common land and that someone must own it. Two possible candidates were suggested from the 18th century (the same two that I had identified) and some effort went into working out who might be their successors. A deed was drawn up and submitted to the Keeper for her consideration. Then followed a long silence as her staff undertook the detailed research to validate the case we had argued. Eventually, last year, she agreed that no-one had a legitimate claim to own it but that the Queen’s and Lord Treasurer’s Remembrancer (a department of the Crown Office) would have to be informed. Since the Crown has a legal claim to any land that is “bona vacantia” (ownerless property), the Keeper wanted reassurance that the Crown did not wish to exercise its possible rights. (3)

Image: Black Law Commonty

At this point things became quite sensitive and complex. To convince the Keeper to register the title, we had to show that nobody had a legitimate claim of ownership. The Crown, however, wanted us to eliminate the possibility that any of the potential ancestors of the owners identified in the 17th and 18th century could legitimately make a claim before they (the Crown) would be able to consider whether they in turn wished to do so. Suddenly we were now being asked do the precise opposite of what we had spent two years convincing the Keeper of (that no-one owned it) to now showing that someone did own it (but they did not wish to claim it) which, in turn opened the possibility of the Crown claiming it and selling it! This bizarre scenario was eventually resolved in a manner which it is not prudent to publicise.

And so, last week, a title was granted by the Keeper to Carluke Development Trust. Which is, we think, a cause for some celebration.

It does, however, raise some urgent questions.

There are many more remnant commons across Scotland. One recent example I have been investigating concerns a 400 acre common in Perthshire that four landowners recently appropriated and split up among themselves without anyone in the parish knowing about it. It caused much resentment but nothing much can be done without spending considerable time and money (which nobody has) on a legal challenge. Another one in the Borders is on the verge of being grabbed by the owner of a large landed estate. Again, locals are nervous, unwilling to speak out in public and have limited funds to challenge. Many more such cases litter the Scottish countryside.

This is why, during the Carluke investigations, as a new Land Registration Bill was being debated in the Scottish Parliament, I argued that commons should be afforded legal protection by means, in the first instance, of a “protective order”. This would “freeze” any claims until a proper and impartial investigation could be carried out into the legal history of the land and avoid any land grabbing. Unfortunately, Fergus Ewing appeared to take exception to this idea and, like other proposals I made, he admitted having spentspent zero minutes and zero seconds studying the issue”.

This was typical of the Scottish Government’s approach to the Bill which appeared to be solely focussed on the need and wishes of the legal profession, property professionals and the Keeper. Even a modest proposal that the 1695 Act that allows commons to be divided be repealed (being an act passed by the landed class to appropriate common land) was rejected by Ministers on the grounds that “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”.

This was stunning. A government in 21st century Scotland was defending a law devised in the 17th century to steal land.

We were aware, of course, that in claiming the Black Law commonty, we were deploying exactly the same methods as the landed class. The difference, of course, was that we were doing so to pursue the goal of restitution rather than personal enrichment. Which is why, in addition to overcoming the complexities of making much a claim, providing a means to register protective orders, and repeal the 1695 act, we also need a land restitution act to recover land that was once held in common.

Finally, this tale emphasises the fact that community ownership of land is not, as some would argue, a novel or new notion. It is a very old one in Scotland’s parishes and burghs. It it just that the landed class, their lawyer friends and successive Parliaments of property owners have conspired (through Acts such as the 1695 one which is apparently of such great importance today) to rob us of our collective inheritance.

Which is why this 33 acre piece of moorland high in the Lanarkshire moorland may represent a small but significant turning point.


PS We also submitted an application to register a title in the loan running up to the commonty (a loan is a public way that is itself common land). The Keeper rejected this claim on a legal technicality. Here is a photograph looking down the loan from the common.


(1) This is the same commonty referred to in Chapter 22 of The Poor Had No Lawyers. Ian Adams’ research on Scottish commonties (Directory of Former Scottish Commonties) was published by Scottish Record Society in 1971.

(2) I would like to share this report with you but like many others I have written, it belongs to my client, Carluke Development Trust and it contains details of our secret methods.

(3) Bona vacantia is one of a number of Crown property rights that are devolved to Scottish Ministers.

In the first session of the Scottish Parliament between 1999 and 2003, a total of 12 Acts were passed in relation to land reform – 20% of the 61 Acts passed in the first four years of devolution. There was much debate about many topics and the media took a great interest. The film above was made by the Australian Broadcasting Corporation (in 2002 as far as I can tell) and is interesting for a number of reasons. It was made by a foreign broadcaster so shines a fresh light on the debate. It contains claims and assertions as to the impact of land reform legislation that can now be examined in the light of what has happened in the intervening ten years.

But it is also very interesting because a couple of the key contributors are speaking from the Strath of Kildonan in Sutherland. Earlier tonight a special commemorative service was held in Kildonan Church as part of the two-week Translocation Festival which is being held on the bicentenary of the eviction and clearance of the population of the Strath in 1813. The BBC reports that exactly 200 years ago today, 96 people left Helmsdale on a ship bound for Canada after being forced from their homes in the Strath of Kildonan. (1)

Now many people take the view that the Highland Clearances should form no part of any debate about who owns Scotland today. At one level this is a perfectly reasonable point of view. But at another it is profoundly misguided. Places like the Strath of Kildonan cannot be understood today without understanding the circumstances and events that shaped them. It is also instructive to compare Scotland at this time with other countries like Norway which also experienced mass emigration. The different is that Norway, unlike Scotland was not owned by vast estates and occupied by a tenantry with no legal rights. It was a country which, one year after the Kildonan clearances adopted a constitution that forbade the creation of any new nobles and empowered the peasantry giving Norway one of the most democratic systems of government in Europe. Seven years later, the aristocracy was abolished.

So understanding history matters which is why it is very educational to hear the likes of Sir John Nutting, owner of the 23,000 acre Achentoul Estate opine on how and why the private ownership of his estate is an essential ingredient of the Sutherland economy and why he doesn’t live there because “I have to earn my bread in the south” (at 3:30).

Achentoul Estate (from

This is of even greater interest since were any of the crofting tenants that still occupy the coastal areas of Sutherland to make a similar argument and be absentee crofters (by living more than 32 km from their croft), they would have to apply for consent to be absent from the Crofting Commission and, were this to be refused, could be subject to legal proceedings that could see their tenancy terminated – a situation highlighted recently by this crofter who claims he is the victim of a new Highland Clearances.

But Sir John Nutting can rest easy. The complex legal framework of crofting law is designed for those whose property interests are limited to a tenancy of a few acres of bog and rock. For a man in his position as the owner of 23,000 acres of land cleared of its human population 200 years ago, there are no such restrictions or conditions.

Which is why it is well worth watching the 15 minute film which includes local crofter Sandy Murray, a descendant of crofters cleared from Sir John’s Achentoul Estate in the Strath of Kildonan argue eloquently why, in his view land reform is a rather good idea.

It is also why it is worth posing questions as to whether landowners like Sir John Nutting have any place in a modern Scotland. His views on the current debate on land reform are available here and make interesting reading.

Suisgill Estate (from

Meanwhile, if you would like to purchase the 16,523 acres of Suisgill Estate in the Strath of Kildonan neighbouring Sir John to the south (and from where many of the tenants were evicted 200 years ago), it is available for sale via Savills at offers over £7 million (sales brochure here – 3.9Mb).

The sales brochure reports that “The Strath of Kildonan has supported an active population since the Stone Age….Great changes in the way of life of the people in Kildonan took place in the early 1800s when Cheviot sheep were introduced into the Strath.”

Great changes indeed.

Don’t worry, no-body will ask you any questions. You don’t have to submit yourself for the approval of the Landowning Commission, you can even conceal your identity in Grand Cayman or some such place and you certainly don’t have to live in the Strath of Kildonan.

I am informed that Sir John will be at the famous Lairg sheep sales tomorrow. If you see him, say hi from me.

PS – Oh, and the film is also interesting because it features David Cotton. He claims that the threat of land reform back in 2002 caused two ghillies to emigrate to Canada. He and his colleagues also threatened me with legal proceedings in 2002 for a statement I made to a Scottish Parliament Committee. I can picture the letter. It is in a plastic wallet with a Recorded Delivery stamp on it. I must find it.

(1) Professor James Hunter, who is currently writing a book about the Sutherland Clearances contacted me to say that, in fact, “they left in June and sailed from the Bay of Stomness”