Scotland’s proposed new Rights Act and land reform

Land Commissioner Megan MacInnes looks at the proposed new Rights Act.

At the end of last year – and possibly lost amidst political headlines and the pre-Christmas rush – First Minister Nicola Sturgeon announced a seismic shift for human rights in Scotland, which could have profound impacts for land reform.

The 10th December is International Human Rights Day and in 2018 marked the 70th anniversary of the Universal Declaration on Human Rights. It was also the day on which the First Minister’s Advisory Group on Human Rights Leadership published its recommendations for how Scotland can become an international human rights leader. The recommendations focus on the adoption and implementation of a new Rights Act; a statutory framework for human rights which for the first time would include economic, social and cultural rights, as well as environmental rights.

It is these economic, social and cultural rights which are the human rights most closely associated with land. Therefore, the fact that the First Minister has set up a task force to take the recommendations forward, could mean big changes for progressive land reform and the work of the Scottish Land Commission.

Until recently conversations about human rights and land reform in Scotland focused on how the protection of private property rights were hindering land reform. However, with the consideration of economic, social and cultural rights included first within the Community Empowerment (Scotland) Act in 2015 and then the Land Reform (Scotland) Act in 2016, this relationship has been rebalanced.

As described in the Land Lines discussion paper published by the Commission: “the human rights focus shifted from avoiding human rights violations to actively pursuing positive human rights impacts. This … envisages using, and in some cases unlocking, land in pursuit of the progressive evolution of human rights, particularly ESC [economic, social and cultural] rights.”

Within the economic, social and cultural rights it is the rights to food and adequate housing which are most closely dependent on individuals, families and communities having access to and secure tenure over land, and thus the progress of land reform. Other rights associated with land include the right to physical and mental health, right to education and right to take part in cultural life.

But what does this mean in practice? Referring to human rights can strengthen a communities’ case for improvements in services – the Leith housing project involved tenants becoming aware of and exercising their right to adequate housing as a means to improve their housing conditions. Human rights can also help identify connections between land and wider social, cultural and economic trends. The community acquisition of 17,000 acres of land on the Isle of Harris by the West Harris Trust in 2010 reversed trends of depopulation and seasonal, unsustainable housing and employment opportunities, thereby having a positive impact on economic, social and cultural rights. Conversley, the negative impacts of long-term derelict land on individuals and communities are well documented, restricting their ability to meet important needs – rights – such as affordable housing or cultural facilities.

As a result of this rebalancing of human rights and land reform, human rights support rather than hinder progress. The right to property is recognised as not being absolute and can be limited in pursuit of the public interest and balanced against other human rights. The Land Reform (Scotland) Act 2016 requires Minsters to have regard for economic, social and cultural rights in preparing the Land Rights and Responsibilities Statement and Guidance on Community Engagement, as well as in decisions relating to the community right to buy for sustainable development.

The Land Rights and Responsibilities Statement, published in September 2017 by the Scottish Government, articulates for the first time that along with rights to land come responsibilities; to your neighbours, your community and the wider public. The Statement adopts a human rights approach to land rights and responsibilities with the intention of improving the connection between land (in rural and urban areas) and the Government’s wider objectives of inclusive and sustainable economic growth and social justice.

The Rights Act can bring in to statute the protection and respect for economic, social and cultural rights which currently exist only in policy. What is being proposed is not just a technical but practical and most importantly accountable; it creates a new task force, provides capacity building and introduces human rights-based indicators for our National Performance Framework. This highlights the importance of human rights in Scotland’s future and enables public bodies like the Land Commission to place them at the heart of our programme of work.

Like the Advisory Group, I will end by handing over to Eleanor Roosevelt, the key architect of the Universal Declaration on Human Rights; “Where, after all, do universal human rights begin? In small places, close to home ….. so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm or office where he works.” What can be closer to home than the rights to having food on the table and a roof over our head? And land is critical to both.