The Scottish Land Commission has partnered with the University of Strathclyde to establish the Land and Human Rights Advisory Forum. The Forum, which had its inaugural meeting on 28 September 2021, will be chaired by Malcolm Combe, senior lecturer in law at the University of Strathclyde.
In its article introducing the Forum, the Scottish Land Commission explains that the Forum has been set up to explore how human rights can be a facilitator for progressing land reform and will advise the Scottish Land Commission on the human rights implications of policy proposals and ideas.
What is the human rights framework in Scotland?
There are a number of strands to the human rights framework in Scotland.
The European Convention on Human Rights (ECHR) forms part of domestic law in Scotland. Section 29 of the Scotland Act 1998 concerns the legislative powers of the Scottish Parliament and provides that legislation is outside the Parliament's competence – and can be struck down – if it is incompatible with the ECHR.
In addition, the Human Rights Act 1998 applies in Scotland, meaning that public authorities (such as the Scottish Government) must not act in a way that is incompatible with the ECHR.
International law, and in particular the Treaties of the United Nations, also contributes to the human rights framework in Scotland. There is movement towards the incorporation of United Nations Human Rights treaties into domestic law - the Scottish Programme for Government contains provision for a human rights bill (as well as a land reform bill, as set out in our previous blog, Land Reform and the Programme for Government) and sets out that the Bill will seek to incorporate four United Nations Treaties into Scots law, including the International Covenant on Economic, Social and Cultural Rights.
What human rights are associated with land reform?
The Scottish Government took a wide approach to human rights in the Land Reform (Scotland) Act 2016. Part 1 of the Land Reform (Scotland) Act 2016 requires the Scottish Government to publish and promote a Land Rights and Responsibilities Statement. Appendix A of the Statement is dedicated to human rights considerations, and sets out that for the purposes of the Statement, the Scottish Government considers that the "relevant human rights" are those within the ECHR, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Elimination of All Forms of Discrimination Against Women.
The ICESCR includes rights such as an adequate standard of living for each person and their family, the right to work and the right to take part in cultural life. In the discussion paper Human Rights and the Work of the Scottish Land Commission examples of community ownership in remote areas were cited as progressing human rights (creation of jobs – right to work; provision of affordable housing – right to housing; provision of green spaces – right to a cultural life).
However, the human right most closely associated with land is the right to property enshrined in Article 1 of Protocol 1 to the ECHR:
"Every natural or legal person is entitled to the peaceful enjoyment of his possession. No one shall be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law"
The right to property is therefore protected in Scotland, though it is not an unqualified right and interference will be compatible with Article 1 Protocol 1 provided that it is in the public interest and proportionate.
There are numerous examples of the Scottish Courts considering the right to property in a land reform context, such as Salvesen v Riddell (agricultural holdings) and Pairc Crofters v The Scottish Ministers (community right to buy).
How can human rights influence the land reform debate?
The Scottish Land Commission has emphasised that discussions regarding human rights should support and not hinder land reform. The views of Professor Alan Miller, a member of the Forum, are put forward in his blog The Tide of History is Lapping Over Scotland's Land (published on the Scottish Land Commission website), where he argues that the human rights dimension of land reform should "develop beyond the perceived "red card" of the private property right under the ECHR".
It is not yet clear how any purported or perceived shift in the rhetoric around human rights and land reform will impact the decisions of the Government or the Parliament when considering whether a policy or law strikes the correct balance between an individual's right to property and the public interest. What is clear, however, is that discussions regarding human rights and the Human Rights Bill will influence the Scottish Land Commission's programme of work in the coming years – and no doubt the newly created Forum will play a key role in that process.