The notion of land reform is as old as the hills itself, or at least as old as we humans have been attaching a bundle of rights to land and calling it real estate.
I have been fortunate during the pandemic to live on a farm, with space around me, and access to a high degree of breathing space and amenity (not to ignore the responsibility that goes along with it). But it has made me reflect on what those rights are, and what stands between the rights I have, and the wider community in relation to what I call "my land". Although I may regard it as "my land", it is only that because the wider society attaches certain rules and regulations - property law - to allow me to have it, and to determine what I can do with it.
This bundle of rights is, if you like, a legal fence around the property, and society decides how high and porous that fence will be, and the extent of my freedom to do as I wish within it. Society also determines who may pass through that fence – utility companies or public access, for example - and in what circumstances..
The point is that society decides what those rights will be, and those rights will inevitably change over time as society changes. Land is fundamental to people's feelings of place, whether it's ancestral tribes marking out hunting territory, or the titles going on the new Land Register today. These rights have been evolving since the earliest laws, and that continues today.
We should move away from seeing land reform as purely a discrete political event, to acknowledging its place in the inevitable development of policy and law. Sometimes that progression will be smooth and gradual; other times it will jump forward with a fit and a start.
What has changed though in Scotland is the pace and proximity of land reform. Since the establishment of the Scottish Parliament, we have seen the abolition of the ancient feudal system, the progression of the new Land Register and significant changes to the types of burdens and conditions that attach to land. We now also have the Scottish Land Commission, with a particular focus on land reform.
We had our first significant new laws on agricultural holdings for around 50 years in 2003, followed by further adjustments, and again significant new legislation in 2016. The Scottish legislative process also changed the nature of the consultation process and increased accessibility to policy makers.
However, this pace of change brings some challenges with it. Many aspects of the agricultural holdings legislation, as an example, have proved problematic, or poorly drafted in practice. Some parts of the legislation, although enacted, are largely unworkable; some have been struck down by the courts; and some have no known specific timeframe for implementation.
Undoubtedly the proximity and immediacy of the legislative process in Scotland has made the process more exposed to the politics of the day in a way that it may not have been previously.
Our newly created Land Reform hub, containing insights and analysis from our experts, aims to help you keep pace with these developments.
It takes a wide perspective of land reform, recognising that ownership, occupation and use of land rests on that 'bundle of rights', which come in many shapes and forms.
Many policy levers and economic influences shape land reform. It is more than just property law in its purest sense, and in particular taxation has a strong influence on land ownership, succession and use of land.
Land Reform will also come from other directions too; as we see agricultural policy change in Scotland, and across the UK, and as the climate challenge shapes environmental law, both in terms of how land is used, and what value is put on the ability of land to store and capture carbon. These are rapidly developing areas, and undoubtedly tensions will emerge between social or community objects, food production, and climate change. We will be tracking those developments and trying to make sense of these in a legal context.
Law and property is what we deal with every day, and the opportunity to share our perspective, and bring it together in an accessible way under the Land Reform hub, is something our team is committed to doing.
We're also launching this initiative with a short survey , to gather your views on land reform and how it is influencing your land decisions. That in turn will help inform our areas of focus. We look forward to sharing some of the trends that the survey reveals in due course.
Contributor
Partner
