Land Matters

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Signed hardback copies dispatched post free to the UK together with a free one-month subscription to www.whoownsscotland.org.uk for all orders placed by 17 September 2010.

The Poor Had No Lawyers provides a fascinating and in depth account of how Scotland’s vast commons were converted into private ownership through a variety of legal devices. It examines the legacy of Robert the Bruce, the Reformation and municipal corruption. It exposes the motives behind the laws of land registration and prescription. Over 32 chapters, it explores everything from the story behind the Cuillin sale, the scandal of agricultural subsidies and the use of a non domino titles to legal reforms of succession law, the ongoing struggle to protect remnants of Scotland’s commons, the muddle that is the community right to buy and why the current SNP government has done so little on land reform. Along the way it provides authoritative statistics on who owns Scotland today and reveals the remarkable story of how the ownership of every corner of Scotland was mapped and documented in 1910.

A critical, detailed, engaging and shocking account of how Scotland came to be so ill-divided.

Well, today’s the day.

Exactly 450 years ago the Scots nobility sat down in Parliament in Edinburgh and passed a series of acts which neutered the power of the Catholic church and ushered in the Reformation. Two years ago I visited Wittenberg in Germany and spent some time in the Luther museum there. My visit convinced me that Luther was one of the great European revolutionaries. More recently, on a cycle trip round Normandy, I read Harry Reid’s Reformation. The dangerous birth of the modern world. It is a gripping and well written account of the events surrounding the momentous events in 16th century Europe that transformed power relations and society across the continent.

The one very big problem I have with Harry Reid’s analysis is his view that the central factor that made the Scottish reformation possible was the intervention of Queen Elizabeth I in sending a naval force which defeated the French forces. I agree that in practical terms that was vital and that, without it, there would certainly have been no reformation (at least not in 1560) since Scotland was in effect a colony of France. But what Reid fails to highlight in the book is the real reason why there was pressure and a military force backing the reformation in the first place (and in support of which Elizabeth’s intervention proved so critical). The reformation would never have taken place had it been left to John Knox and his followers. It was a religious revolution of course, but they simply did not have the power to push such reforms through Parliament.

The key to understanding the speed and success of the reformation is the role played by the Scots nobility in the 40 years leading up to 1560 (and up to and beyond the Union of Crowns in 1603). The reformation was made possible and indeed driven forward by Scottish nobles in order to secure for themselves the ownership of the extensive and valuable lands of the church. The reformation was the culmination of a massive land grab and it was to protect that plunder and secure their ill gotten gains that the nobility forced through the reformation. In the process they destroyed John Knox’s plans for the reformed church and ushered in the laws that form the underpinning of Scotland’s concentrated pattern of private landownership.

This topic forms a chapter in my forthcoming book, The Poor had no Lawyers. Who owns Scotland (and how they got it) to be published by Birlinn in October.

Having had time to digest the recent decision to refuse the right to buy to the Machrihanish Airbase Community Company (see post of 13th August) I am astounded at both the decision and the implications. It has become very evident that over the course of the past 6 years, applications to register an interest in land by communities under the community right to buy provisions of the Land Reform (Scotland) Act 2003, have been thwarted in too many cases by a systematic bias in the way civil servants have discharged their duties. Put simply, if there is even a hint that a landowner might challenge a registration, then every effort is made to pore over the application and reject it on a technicality. Where such concerns do not arise on the other hand, no such thing happens and applications which are in many cases technically invalid end up being registered.

In the case of Machrihanish we now have the same logic applied to the actual right to buy process. The Machrihanish Airbase Community Company decided to proceed with the right to buy when the MoD put the airbase outside Campbeltown up for sale earlier this year. It then held a ballot of 5945 electors who voted 97.4% YES on a 67.35% turnout to proceed with the buyout. So what happened?

Well, Scottish Ministers decided that such enthusiastic support was to be quashed by refusing to consent to the right to buy on the basis that there had been technical breaches in the ballot. These are spelt out at length in the Refusal Notice. They are, frankly, bizarre. For example, the fourth point is that the community body failed to ask an accurate ballot question since it suggested that the “people of Kintyre” were being given the opportunity to acquire the airbase. Wrong…! As the land reform police at Victoria Quay are quick to point out it is not the community that is being given the right to buy it is the community body - Machrihanish Airbase Community Company. The distinction is of course important but also utterly irrelevant.

But the fiasco does not stop there. Disappointing as this is for the community in Kintyre, the decision reveals an aspect of the Act that has as yet escaped my attention and which renders the law something of an ass.

If a commmunity is given the right to buy (sorry, I must remember that communities cannot be given the right to buy - it is community bodies) and fails for whatever reason to conclude the sale within 6 months, then the right to buy is extinguished and their registration of interest is deleted (section 56). This is quite correct and logical.

If, however, as in the case of Machrihanish, the community body is refused consent to buy then the Act is silent on what happens to their registration. That being the case, therefore, the registered interested remains (since there is no provision in the Act for it to be deleted). But that leads to an interesting and crazy situation where the MoD is prohibited from taking steps to sell the airbase without providing the community body with an opportunity to exercise its right to buy. Having been turned down the first time, let us suppose that the community body decides that it will have another go. It organises another ballot and sends the results of this to Scottish Ministers. They then find that one voter has been omitted from the ballot (echoes of the British Airways cabin crew strike ballot here) and refuse to consent to the right to buy. But the MoD is still prohibited from selling and, when it decides to put it on the market again, the community body decides for a third time to exercise its right to buy. Ministers again refuse.

This could go on forever. Such a situation is, I should stress, particularly unfair on the landowner whoever they might be. It is only reasonable I suggest that a community body be given one chance to acquire land and, if consent is not forthcoming from Scottish Ministers, the landowner should be free to sell. Instead we have a situation of potential stalemate.

The case emphasises once again why, as many have argued, there should be a thorough review of how the community right to buy is being implemented. Scottish Ministers have consistently refused to agree to this. Might this be because such a review would expose the inadequacies and inequities in Ministers’ own decision making processes?

I am now in the final stages of editing and proof reading of my next book to be published by Birlinn in October. Titled ‘The Poor had no Lawyers. Who owns Scotland (and how they got it)’, it seeks to analyse how the millions of acres of Scotland’s common lands disappeared into private ownership. It also provides detailed discussion of a whole range of topics related to land in Scotland. There are chapters on everything from the reformation to the community right to buy, from the Crown Estate to landownership and the education of the Edinburgh bourgeoise and from Gordon Brown’s failed economic policies which led to an inflated runaway housing boom to the SNP government and the death of land reform.

I will shortly be promoting a pre-publication offer for the book - details shortly. Meanwhile, if you are interested in a copy, let me know and I will make sure you are on the list.

Scottish Ministers gave notice on Wednesday 11 August of their refusal to consent to the application by the Machrihanish Airbase Community Company to acquire the redundant Machrihanish airbase in Argyll. In a long and detailed Refusal Notice, Ministers explain their grounds for refusal. I make no comment on whether this decision is right or wrong but it does emphasise once again the complexity of Part 2 of the Land Reform (Scotland) Act and the role of civil servants in detailed scrutiny of applications. I say, once again, let’s simplify this legislation so that it truly empowers communities instead of enmeshing them in a quagmire of fine legal arguments.

For Argyll, the online newspaper provides a useful background to this story.

Following the confirmation by the Treasury Committee that the Crown Estate Commissioners (CEC) do not own the seabed around Scotland (Scotland has always owned the seabed though it is “administered” and “managed” by the CEC), a key question arises - how much is it worth? If the Scottish Parliament were to abolish the Crown rights in the seabed what kind of revenues might be anticipated? What might a Scottish marine renewables sovereign fund look like?

I don’t have access to the rental agreements signed by the CEC but I found a report in the Times in 2008 in which industry insiders claim that the sums could be around £100 million per year - and that’s for offshore wind alone. It does not include wave, tidal, carbon storage or subsea cabling. The Scottish share of wind is probably only 20% or so according to this map from CEC but including the other developments, we are talking about hundreds of millions of pounds.

The Daily Mail claimed earlier this year that plans for gas storage under the North Sea are being delayed because of “excessive demands” from the CEC.

I have been contacted by an SNP MSP who describes my criticism of the Scottish Government as “not fair” and that the CEC is “work in progress”. I don’t buy this. Back in March 2008, the SNP’s Westminster Energy spokesperson Mike Weir was complaining that the fees generated by the CEC represented a “clear power grab” which the “SNP will oppose tooth and nail”

But that was 2 years ago and since then, Alex Salmond and his government had been cosying up to the CEC when they could, instead, have abolished these Crown rights and stand now to set the terms of this marine bonanza that will make Scotland “the Saudia Arabia” of renewables. What’s more, all the evidence and facts were set out in December 2006 when the Crown Estate Review Working Group published its authoritative report.

I don’t know much about Saudia Arabia but I bet all the revenues from their oil deposits don’t head off to Tel Aviv or Cairo!