The Scottish Government published its annual Programme for Government on 7 September 2021.
Entitled "A Fairer, Greener Scotland", the Programme sets out the Scottish Government's priorities for the coming parliamentary year and session, including recovery from the pandemic, the health care system, child poverty, climate change and building a sustainable and inclusive economy. The programme also includes the legislative programme for the parliamentary year 2021 – 2022.
The programme follows the publication of the Co-operation Agreement between the Scottish Government and the Scottish Green Party Parliamentary Group and the Scottish Government and Scottish Green Party Shared Policy Programme on 1 September 2021.
As we have touched on previously, the topic of land reform can encompass a range of issues and concepts. Whilst a number of the policies in the programme relate to land (including climate change, agriculture, the natural environment, affordable housing and rented housing), there are three policies which touch on core land reform issues - scale and concentration of land ownership, community ownership and agricultural holdings.
Scale and Concentration of Land Ownership
The programme sets out that the Scottish Government will:
" Subject to devolved competence constraints, we will aim to bring forward a Land Reform Bill to tackle the scale and concentration of land ownership across rural and urban Scotland, including provision for a public interest test to apply to transfers of particularly large scale landholdings, with a presumption in favour of community buy out when the test applies."
The timeframe for this work is "within this Parliament" (ie not this parliamentary year, but this parliamentary session). We note that the Scottish Government and Scottish Green Party Shared Policy Programme makes reference to introduction of the Bill by the end of 2023.
The Scottish Government has a clear intention to bring forward legislation tackling the perceived scale and concentration of land ownership in Scotland, albeit it acknowledges the limitations within which it has to operate. The reference to "devolved competence constraints" in this context is likely to refer to the provision of the Scotland Act 1998 which requires the Scottish Parliament to legislate in a way that is consistent with the European Convention on Human Rights (and the protection afforded to individual property rights).
It seems likely that the Scottish Land Commission's recent work on scale and concentration of land ownership, in particular on a public interest test, will inform policy development. We have commented in more detail on this work in previous blogs – Legislative Proposals on Concentrated Land Ownership in Scotland and Concentration of Land Ownership in Scotland.
Community Ownership
The programme contains a number of policies relating to community ownership and the Scottish Government commits to –
- Doubling the Scottish Land Fund from £10 million to £20 million per year by 2026; and
- Reviewing the Community Empowerment Act to consider how local communities can have "more of a say" in how public assets are used.
There is no specific commitment to reforming the existing community rights to buy, or introducing a new right.
Agricultural Holdings
The programme touches on agricultural leases and the rights of agricultural tenants in Scotland, an area which has been the subject of substantial reform over the last 20 years (most recently by way of the Land Reform (Scotland) Act 2016).
There is a commitment to bringing the "remaining provisions" of the Land Reform (Scotland) Act 2016 into force, specifically referring to the enforced sale of a holding and removing the requirement to register a pre-emptive right to buy. It is not clear if this list is intended to be exhaustive - we note there is no reference to regulations bringing the 2016 Act provisions on repairing tenancies or rent review into force.
In addition, the programme sets out new areas for policy development -
- A revised approach to rent reviews (it is not clear from the programme what commitment is being made by the Scottish Government to agricultural rent review – to implement the 2016 Act provisions relating to rent review, to legislate again, or simply to consider the matter further);
- Considering how the valuation for resumption should be assessed;
- Consulting the reform of trust law that enables avoidance of legal obligations like the pre-emptive right to buy for tenant farmers;
- Modernising small landholding legislation; and
- Legislating to ensure tenant farmers and smallholders have the same access to climate change and mitigation measures.
The prospect of discussions relating to resumption and valuation are likely to be of specific interest to agricultural landlords and tenants (in particular, where the subjects of the tenancy have development potential).
Summary
Whilst the legislative programme for 2021 – 2022 does not include a Bill on land reform, it is clear that we can expect discussions on legislation relating to scale and concentration of land ownership within this Parliamentary Session, as well as further policy development on agricultural holdings and community ownership.
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