Does Scotland's land reform debate need the Scottish Law Commission's input?

Glasgow Forum for Scots Law: Roundtable Discussion on Land Reform Written by Obiora Godwin Ezike

What better way to end the year than a discussion on land reform in Scotland!

The Glasgow Forum for Scots Law on 7th December organized a Land Reform Round Table. The discussion focused on whether the Scottish Law Commission should have been involved in the preparation and drafting of the Land Reform (Scotland) Bill; and, if so, what difference the SLC's involvement would have made to the whole process. The Scottish Government did not ask the SLC to do any preparatory, however, this roundtable discussion took the opportunity to explore the pros and cons of having the SLC involved. The discussion was led by Mr. Malcolm Combe, an adviser to the Land Reform Review Group. He was joined by Dr. Jill Robbie who gave oral evidence on land reform to the Rural Affairs, Climate Change and Environment Committee (RACCE) in September and Dr. John MacLeod who has also given written evidence to RACCE.

The discussion on the topic was very engaging, as both Dr. Robbie and Dr. MacLeod argued for a more theoretical underpinning and clear policy justification for land reform in Scotland which could have been gained through the Scottish Law Commission’s involvement. Mr. Combe, to a large extent, disagreed. He saw no reason why the Commission should be involved in a politically contentious area, such a law reform.


Dr. Robbie opened the discussion by pointing out the benefits and drawbacks of the Commission’s involvement in the land reform process. She noted that there has been a lack of conceptual framework regarding some provisions contained in the Land Reform Bill, one of which is the issue of land redistribution. She pointed out that this lack of theoretical underpinning has adverse consequences, one of which is that it may lead to a lack of coherence in the law and also limit the impact of the reform process. She drew the audience’s attention to the social obligation norm theory in the US which may be of assistance in giving legal support to land redistribution. However, she also mentioned that some have described this theory to be not sufficiently progressive or robust. However, this theory was said to be conservative and not robust enough.

In continuing the discussion, Dr. Robbie also stressed that the Commission’s involvement may benefit the reform process by prompting a comparative research into land reform in other jurisdictions, with particular focus on the mistakes and successes achieved in those jurisdiction. This would have made the reform process in Scotland more robust and in-depth

Dr. Jill further noted that the Commission’s involvement would have ensued human rights issues in the land reform process were adequately addressed. In this regard, she observed that the Commission has carried out similar research on human rights issues in relation to the abolition of feudal system in Scotland, and that this experience would have greatly assisted in the land reform process.

Aside the benefits of the Commission’s involvement in the land reform process, several drawbacks were also identified by Dr. Robbie.  First, she pointed out that the Commission’s participation may lead to a delay in the completion of the reform process, as gleaned from the abolition of the feudal tenure, a process which commenced in 1991 (with the publication of a Discussion paper) and ended in 2000 (with the enactment of the Act on Abolition of Feudal Tenure).

Dr. Robbie also stressed that the Commission may not have the clear mandate to deal with land reform given that it is a politically contentious issue which is outside the mandate of the Commission. She also noted that the SLC’s involvement may give rise to the possibility of limiting the radical reform or change which is desired in the sector.

Commenting from an inside perspective, Mr. Combe noted the LRRG could have learnt from the style of SLC Reports by having an executive summary/numbered recommendations, and it was wrong not to have such a summary/numbers. He pointed out that lawyers do not always know much about land use and that the Land Reform Review Group (LRRG) made a couple of proposals, such as a cap on land ownership, restricting ownership to entities registered in the EU and absolute rights to buy for agricultural tenants, which are politically related issues and outside the purview of the Commission.

Taking the discussion further, Dr. Macleod pointed out that the LRRG have not shown the capacity of building a bridge between the law and wider political and social areas. He noted that the Group’s expertise was focused more on the ‘policy’ side rather than the way in which such policies were to be delivered. He expressed the view that the Commission  has good methods of delivering policies, and that it may have been suitable for the LRRG to come up with proposals which may then been remitted to the Commission with specific direction to formulate delivery plans on how those policies are to be achieved.

Dr. Macleod further observed that one of the problems in the reform process so far has been that the ‘policy’ argument and ‘delivery’ argument have been heard at the same time. This has meant that the delivery argument has been dragged out, therefore lacking any sense of direction

In response to the point made by Dr. Macleod, Mr. Combe stated that inputs have been received at every stage of the reform process and that the policy side, because it is an ongoing process, may in practice not be deductible from the delivery side.  This point was opposed by Dr. Macleod who stressed that referring such policies to the Commission would have isolated the ‘policy’ process from the ‘delivery’ process.

Comments were welcomed from participants, some of whom expressed disapproval at the limitation of the SLC’s mandate to conduct reform activities in relation to only non-political matters. It was observed that this restraint may be unreasonable as anything can be made a political issue and as such kept outside the Commission’s mandate.

Another participant pointed out that cohabitation and succession provisions may be useful guide and support for the Commission’s involvement in political matters. The SLC, in regard to those matters, had to carry out technical and rigorous reconsideration of cohabitants and their right to succession and thereafter came out with clear principles of law on the issue.

The discussion came to a close with comments on the future of land reform in Scotland, with reference to the new Scottish Land Commission vested with new functions and mandate.

We hope the Land Reform Bill brings about a welcome development to Scots Land Law!

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