Land Reform Bill

The Scottish Government has introduced its Land Reform Bill to the Scottish Parliament. We welcome publication of the bill, which seeks to address the concentration of land ownership that is a core driver for land reform in Scotland.

The bill draws on significant research and analysis published by the Scottish Land Commission and this work is available to everyone with an interest in the bill.

Key publications from the Commission are summarised below.

Scale and concentration of land ownership

The Commission investigated the issues associated with scale and concentration in Scotland’s pattern of land ownership. The investigation found that the core public interest issue is the concentration of power over local decision making, and the risk of localised monopoly.

The Commission made recommendations to address the risks associated with localised concentration of power and the impacts on communities and local economies including:

• Introducing a public interest test at the point of transfer of significant land holdings
• Giving more statutory weight to the Land Rights and Responsibilities Statement
• Introducing an obligation for significant land holdings to engage on and publish a management plan

The recommendations were also informed by research into international practice in interventions in land markets. This found it is normal in many countries to set some public interest parameters on who can own how much land.

One such mechanism is the French SAFER system. Our research into how this has evolved and operated over the past 60 years provides valuable insight and lessons on the political and legal acceptability of such land market interventions in the context of a modern European economy.

In light of the increased number of off-market transactions in Scotland’s land market, the Commission has also recommended the introduction of prior notification for sales, so that local communities and others are aware of the opportunity of land coming to the market.

Scotland’s rural land market

The Commission has developed improved reporting and information on the rural land market, including insights and data reports for the years 2021-23. The insights reports draw on interviews with land agents to understand what is happening in the market, the motivations, trends and direction. The data reports seek to develop a methodology for regular reporting using Registers of Scotland data.

The reports provide information on the value, location, area and type of transaction as well as key trends such as the implications of natural capital value, and the extent of off-market transactions. The findings show less than 1% of Scotland’s land being sold annually, with on average 93% of sales being for areas less than 500Ha.

The reports identify policy implications in relation to:

• The risk of further concentrating land ownership
• Limited opportunities for communities and individuals to participate in the market
• Challenges associated with natural capital investment
• The risks of ownership and decisions where land is acquired primarily as a financial asset

Human Rights

Land reform in Scotland reflects the Scottish Parliament’s ambition to realise economic, social and cultural rights as well as the framework of established property rights. We published a discussion paper by a leading King’s Counsel (KC) on ‘balancing rights and interests in Scottish land reform’ that looks at current human rights law and its implications for new proposals addressing land ownership.

This work notes that, within the constraints of the devolution settlement, Parliament has broad discretion in identifying what is in the public interest. It explains the key issues that courts will consider when legislation is applied in individual cases. It concludes there is no obvious barrier to introducing measures such as those proposed in our advice on concentrated land ownership provided the law is clearly stated, procedures are fair and transparent, and that each use of powers is rational and justified.

In 2021 we set up our Land and Human Rights Advisory Forum, an expert forum that discusses the relationship between property rights and wider economic, social, and cultural rights. The Forum brings together leading legal thinkers with expertise in land, property and human rights, from academia and practice, to provide independent, impartial advice to the Commission on the human rights implications of policy proposals and ideas.