In the second of our series of blogs on the Scottish Government's Consultation on Land Reform in a Net Zero Nation, we are considering the theme of accountability.

Why does the Consultation contain measures relating to accountability and where would they apply?

The Consultation contains two main measures which relate to accountability of landowners and how their day to day actions and decisions as managers might be monitored and regulated – Strengthening the Land Rights and Responsibilities Statement (Part 5) and Compulsory Land Management Plans (Part 6). The Consultation states that the two measures are aimed at "tackling the issues associated with scale and concentration of landownership".

The proposed measures would not, however, apply to all landowners – they would only apply to the owners of large scale landholdings (LSLs). The definition of a large scale landholding is considered in the Consultation, and we have commented on the definition in a previous blog. In short, the Scottish Government proposes that specific criteria will be taken into account when classifying landholdings as LSLs, including (but not limited to) a fixed acreage threshold of 3,000 hectares.

Measure 1 - Strengthening the Land Rights and Responsibilities Statement

The Land Reform (Scotland) Act 2016 empowered the Scottish Government to publish a Land Rights and Responsibilities Statement (LRRS). In 2019, the Scottish Land Commission launched the Good Practice Programme, which sought to provide "straightforward guidance" on the practical implementation of LRRS, including protocols. The protocols include Community Engagement in Decisions Relating to Land, Negotiating Transfer of Land to Communities and Transparency of Ownership and Land Use Decision Making.

The proposed new measure involves firstly, a legal duty on owners of LSLs to comply with the LRRS and, secondly, a legal duty on owners of LSLs to comply with the associated protocols. There would be a statutory process to adjudicate on alleged breaches of non-compliance and a Commissioner would investigate and report publicly on their findings. There is reference to enforcement powers, which could include financial penalties and enforcement powers.

A legal duty to comply with the LRRS

It is proposed that there should be a legal duty to comply with the LRRS (going beyond a duty simply to have regard to the LRRS). The Consultation does not explain how this is intended to work in practice.

The LRRS contains a vision and six principles. Its stated aims are to inform the development of Government policy; to encourage and support others with significant responsibilities over land to consider how decision making powers could contribute to realising the vision in the statement; and to encourage the people of Scotland to recognise our responsibilities.

The 2016 Act describes the LRRS as a "statement of principles" – not legal duties and the LRSS principles are in broad terms. For example Principle 4 is that:

"The holders of land rights should exercise these rights in ways that take account of their responsibilities to meet high standards of land ownership, management and land use…".

Seeking to impose a duty on the owner of an LSL to comply with such a principle raises questions about the rule of law (which requires laws to be certain and precise) but also about how the duty could be enforced.

If the intention is to impose a legal duty on the owners of LSLs to comply with the LRRS, it seems likely that a detailed review of the content LRRS would be required.

A legal duty to comply with LRRS protocols

The Consultation proposes statutory Codes of Practice/protocols although it is not clear whether or not the current Good Practice protocols would be intended to be put on a statutory footing.

The Consultation refers to the current framework established by the 2016 Act in relation to tenant farming. The 2016 Act created the Tenant Farming Commissioner (TFC), with the power to publish and promote Codes of Practice on topics relating to tenant farming (Codes of Practice). We have highlighted below some differences between the current tenant farming framework and the proposed LRRS protocol framework.

  • The TFC does not have the power to apply penalties for failure to conform with the Codes of Practice – they can impose a penalty only where a person has failed to comply with a statutory request to provide information. The Consultation makes reference to possible enforcement powers for the LRRS protocols, including financial penalties or cross compliance penalties.
  • The TFC operates within the sphere of agricultural holdings. There is a clear existing legal relationship between the landlord and tenant, and the Codes of Practice seek to encourage good relations between them. Whilst the Consultation is clear that it does not envisage "members of the general public" having rights to complain about an alleged breach of the LRRS protocols, it proposes that organisations within the remits of community, charitable or public service would be able to make a complaint, provided that they have a connection to the local area. There is no suggestion in the Consultation that the organisation need be directly affected by the alleged breach of LRRS protocol.

Measure 2 - Compulsory Land Management Plans

The Consultation proposes that the owners of LSLs should prepare and publish a management plan. The plan would need to include specific information, including how the owner will implement the principles set out in the LRRS, how land will be used to manage land for sustainable management, contribute to net zero and nature restorations; and how the owner will engage with local communities. The proposal relates to transparency (another theme explored in this series of blogs), as well as accountability. The Consultation contains a link to the SLC's template for management plans.

The Consultation proposes that the requirement to publish a land management plan would be enforced by way of cross compliance measures (ie it would be tied to the receipt of public funding for land based activity). However, the proposed enforcement relates to the requirement to publish a plan – not a requirement to implement it. The Consultation does not contain reference to any mechanism to report breaches of a land management plan.

Conclusion

Both proposals reflect suggestions made by the SLC in 2019, and again in 2021. These earlier publications provide further insight into the specific policy objective – namely, the introduction of mechanisms seeking to address the perceived risks and consequences of concentrated landownership. As the detail of the proposed measures develop, no doubt the discussion will continue as to what these measures can achieve and how that should be balanced against further requirements being imposed on owners of LSLs. 

Contributors

Kate McLeish

Partner

Chloe Wales

Senior Associate

Ros James

Associate