As today’s launch of the Yes campaign rolled out, I began tweeting as follows:

“I believe that it is fundamentally better if decisions about Auchtermuchty’s future are taken by the people of Auchtermuchty #yesauchtermuchty”

This is part of my Campaign for Real Local Government and a call for a radical shake up in the way we do democracy – from the bottom-up rather than the top-down. It would involve re-instating the 196 Town Councils that were abolished in 1975 and re-establishing the parish councils that were abolished in 1929 (and perhaps re-naming them communes or municipalities).

Folk like Lesley Riddoch have been making these arguments for a long time. More recently, the Jimmy Reid Foundation published an excellent report called the Silent Crisis which I heartily recommend you read if you want to see what the key arguments look like.

The towns contained in the tweets are those listed in the First Schedule of the Local Government (Scotland) Act 1947 (5.6Mb pdf) OR see in Annex I of Common Good A Quick Guide. These towns governed themselves until midnight on 14 May 1975 when their Town Councils were abolished by the Local Government (Scotland) Act 1973. Popular resistance to their abolition led to the inadequate sop of powerless community councils. Some towns also transferred their common lands into trusts to prevent it being transferred to the new District Councils.

Unfortunately, my tweets were not universally appreciated. Roseanna Cunningham MSP tweeted “he’s being awfully tedious & impressing no-one.”

I didn’t realise that the topic raised such passionate emotions.

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.

10. April 2012 · Comments Off on Human Rights and Scottish legislation · Categories: Democracy, Farming, Land Reform, Land Rights, Legal affairs, Poor had no Lawyers

I am grateful to Lallands Peat Worrier for his comments on a draft of this blog.

A dispute over a farm in East Lothian may be responsible for the second time in two months for the provisions of an Act of the Scottish Parliament being declared unlawful and struck from the statute book due to a breach of the European Convention on Human Rights (ECHR). In a legal ruling which has had little publicity beyond the specialist pages of legal newsletters and the farming press, Lord Gill found that “the appellant’s rights under Protocol 1, article 1 are violated by Section 72 of the 2003 Act”. (1)

The case concerns the Agricultural Holdings (Scotland) Act of 2003 which, among other things, provides tenant farmers who occupy land under “secure” tenancies with a right to buy their farm if and when it is ever sold. (2) For many years prior to 2003, no new “secure” tenancies had been created. and landowners, instead, made new tenants partners in Limited Partnerships (LPs). These LPs were granted the tenancy as “secure tenants” but by stipulating that the LP would be dissolved at a specified date, such a structure was effectively a device for circumventing the provisions of the law providing security to tenant farmers.

When the Bill was going through Parliament, there was anticipation that such tenants would be granted secure status. On 3 February 2003, a date that became known as the “night of the long knives”, around 200 tenants were served with notices of dissolution of the LP – effectively an eviction notice. The next day an amendment was tabled in Parliament to provide retrospective security of tenure to all tenants who had been served such notices. This became Section 72 of the Act.

One such tenant was the partnership of John and Andrew Riddell of Peaston Farm, East Lothian. They were served notice on 3 February 2003. Under Section 72, the Riddells applied to the Land Court in 2008 to be recognised as secure tenants and won their case in 2010. (3) During the land court hearing, Counsel for Alastair Salvesen, the landlord, made clear that he did not seek to invoke the ECHR.

Having lost the case, however, he appealed to the Inner house of the Court of Session and was successful in having breach of Convention rights as a new ground of appeal. The Court has ruled in Salvesen’s favour and found the Agricultural Holdings (Scotland) Act 2003 to be in breach and thus outwith legislative competence. A referral has been made to the Advocate General under Section 102 and the action is likely to move to the Supreme Court.

It was bound to happen eventually – the inevitable consequence of a “supreme” UK Parliament and a “subordinate” Scottish Parliament, a creature of statute and thus constrained by the terms of the Scotland Act. Section 3 of the Human Rights Act 1998 provides that where a court finds that any legislation from the UK Parliament is in breach of Convention rights, it may make a “declaration of incompatibility”. This obliges Westminster to do nothing at all to remedy the breach.

The Scotland Act, by comparison states boldly in Section 29 that an “Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament”. A breach of Convention rights is one example of an Act being outside competence. Thus, on the face of it, the Supreme Court or the Court of Session can strike down an Act of the Scottish Parliament. This happened for the first time in February 2012 (Cameron vs Procurator Fiscal ) when a provision of the Criminal Justice and Licensing Scotland) Act 2010 was struck down. The wider policy issues in relation to the Agricultural Holdings Act are discussed in my previous post.

This unbalanced treatment of laws passed by the UK and Scottish Parliament has always been one of the weaknesses of the devolution settlement. It has been evident, for example, that human rights has all too easily been invoked during the consideration of bills in the Scottish Parliament. A number of land reform statutes, for example, were watered down due to fears of a human rights challenge and the ultimate fate that may thus await any Act that was subsequently found to breach Convention rights. It has resulted in Scottish legal drafting being rather more cautious and timid that might have been the case with any equivalent statute in the UK Parliament.

This dramatic legal development comes at a sensitive time with a recent history of friction between the Scottish Government and the Supreme Court. It is right that human rights are observed and that laws are subject to judicial intervention. Unfortunately in this case, not enough was done early on to prevent landowners circumventing the law. Attempts to do so retrospectively have now proven unlawful.

It is now time for the Scottish Government to decide whose side it is on in the unequal class struggle between landlords and tenants.

(1) Salvesen vs Riddell [2012] CSIH 26

(2) Secure tenants are those whose tenancy is governed by the Agricultural Holdings Act of 1991 and which is heritable and perpetual provided certain statutory obligations are met. Many tenanted farms have been held by the same family for well for over a century.

(3) Salvesen vs Riddell, Land Court ruling

UPDATE 4 OCTOBER 2012 Andrew Riddell died on 2 October 2012. STFA Press Release