Land reform: through the looking glass

An awkward admission: by far the biggest hurdle to "radical" land reform in Scotland is the European Convention on Human Rights.

In terms of traditional political loyalties, we're through the looking glass here. Tweedy landlords, conservative estate owners and land agents may vote Tory to back the established order -- but if Gove is permitted to strip Convention rights out of Scots law, those self-same property owners would find themselves entirely at the mercy of a democratic majority in Holyrood hell bent on a substantial rejigging of the territorial map.

They may not give a ha'penny toss for many of the freedoms the ECHR enshrines, but their right to property -- well, that's a different story. Without it, they would quickly discover that their vaunted rights at common law aren't all they're cracked up to be. They'd find Magna Carta mum. People inclined to defend your Convention rights, by contrast, find themselves stymied again and again by Article 1 Protocol 1, and the right to property it enshrines. This right to property isn't absolute. States enjoy a broad margin of appreciation within which they can raise taxes, regulate property and so on -- but the right has real teeth. Fans of cognitive dissonance, eat your heart out. The basic text of the Convention reads as follows:

(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 

(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

For many land reformers, our history of a strikingly unequal distribution of landed property is a nightmare from which they are trying to awaken. Our situation recalls the well-known joke about the tourist in Ireland, seeking directions. "Well if I were you," a local replies, "I wouldn't start from here." But ownership is, inevitably, backwards looking. Without a revolution, we don't begin at year zero, with a clean slate. It isn't a matter of hitting reset and redrawing the maps. 

History also teaches us that the landed interest have the wealth and willingness to go to law where they believe their rights have been violated -- and win.  The first Act of the Scottish Parliament to be struck down by the courts on human rights grounds concerned a challenge by a landowner to the rights of one of his tenant farmers.  The owner won; the farmer killed himself shortly afterwards. These strictures aren't to be sniffed at and they aren't all that easy to get around in a systematic way. 

Although the text of the Convention doesn't expressly require the state to pay compensation to people whose property it expropriates, it has been interpreted in that way by the European Court. For example, in James v. The United Kingdom, judges made clear that the state must give fair compensation to those whose property is taken or transferred:

"... under the legal systems of the Contracting States, the taking of property in the public interest without payment of compensation is treated as justifiable only in exceptional circumstances not relevant for present purposes. As far as Article 1 (P1-1) is concerned, the protection of the right of property it affords would be largely illusory and ineffective in the absence of any equivalent principle. Clearly, compensation terms are material to the assessment whether the contested legislation respects a fair balance between the various interests at stake and, notably, whether it does not impose a disproportionate burden on [property owners]."

Compulsory purchases can be justified in the general interest -- but kicking the lairds out of their castles and estates without stumping up cash is doomed from an ECHR point of view. As a result, finding a mechanism which (a) effectively redistributes and rebalances land ownership while (b) working within the current owners' right to property ain't easy. 

In the Land Reform (Scotland) Bill, we find the Scottish Government's latest attempt to do so. You'll find the most controversial provisions in Part 5 of the Bill, which sets out a revived right to buy.  That right will only be exercisable by community bodies or a third party which they nominate -- and with consent of Scottish Ministers. Ministers must not consent to the transfer of the land unless all four of the following criteria are met. And the criteria to be met are pretty ferocious.

1. The transfer of land is likely to further the achievement of sustainable development in relation to the land, 
2. The transfer of land is in the public interest, 
3. The transfer of land - (i) is likely to result in significant benefit to the relevant community  and (ii) is the only practicable way of achieving that significant benefit, and 
4. Not granting consent to the transfer of land is likely to result in significant harm to that community.

The third and fourth conditions are particularly onerous. Perhaps reflecting this, if would-be purchasers fail to secure consent, Scottish ministers will foot the bill for their application. If the community body does get the nod, however, the Scottish government will appoint a land valuer, who will independently assess the market value of the land, giving the parties the opportunity to contribute to the deliberations on fair compensation. The government will foot the bill for these valuations too, and if the owners or purchasers are disgruntled, they'll be able to go to the lands tribunal and air their dissatisfaction. Once the decision has been taken, owners will not be allowed to foil the process with a quick fire sale or sneaky transfer to their preferred purchaser. 

The land lobby have predictably attacked these criteria as vague and undefined, crying Mugabe, land grabs and bloody murder. They are nothing of the sort. The language of the legislation is necessarily impressionistic, allowing ministers to apply broad principles to different situations and applications from across the country. But surely the landowners are - also characteristically - protesting too much here. A thick vein of (understandable) caution runs through these proposals. As politicians and property owners shadow box, enjoying the mutual recrimination and batting at phantoms, a property lawyer friend summarised the reality more pithily.

"This Bill is not as radical as claimed by Scottish Government (given the thresholds for use of power to sell). Not as awful as claimed by landowners (for similar reasons). Basically, making something like this ECHR proof means they can't do something revolutionary."

There's a lesson somewhere in here for Tory enthusiasts of human rights repeal. When you're through the looking glass, you should be careful what you wish for.