Malcolm Combe

This is a blog post about the new land and human rights forum, which is a partnership between the Scottish Land Commission and experts who hope to bring academic insights or practical knowhow to the work of the commission. It is not, however, the first blog post about land and human rights, as can be seen in this recent ‘Land &’ blog post for the commission by Professor Alan Miller. Professor Miller also happens to be one of the eight members of the forum, with other members detailed in this story on the commission’s website.

Land reform and human rights – the Scottish setting

Let’s take the relevance of human rights as a given for the time being, and concentrate on why this might be a particular moment for land and human rights in Scotland. With the parliamentary arithmetic at Holyrood and the (draft) shared policy programme of the Scottish government and the Scottish Green Party it is all but certain there will be another – a third – Land Reform Bill in this term of the Scottish Parliament.

In addition to the initial declaration that there would be “wide-ranging consultation on land reform proposals”, this is what the Scottish government (SNP)/Green agreement had to say about the specific land reform measures:

• “Recognising that devolved competence constrains what we can do, we aim to deliver legal mechanisms to tackle scale and concentration of land ownership in rural and urban Scotland. This will include a public interest test to apply to transfers of particularly large scale land holdings which will include a right of pre-emption in favour of community buy out where the public interest test applies.”

I’ll come back to the devolved competence point below. Other points are also mentioned beyond that big-ticket proposal.

There is agreement “that every opportunity should be taken to ensure that Scotland’s people are able to live and work sustainably on our land and that communities benefit from the land use changes necessary to address the twin environmental and climate crises, and support a just transition” and “that rural repopulation is a vital objective, alongside nature-based solutions.”

There are also commitments relating to housing and for the introduction of a fair mechanism for capturing, for public benefit, a share of the increase in land value that occurs when development is supported through the planning system.

These are clearly important and relate to land more generally. For present purposes though, it is the measures relating to a public interest test that are perhaps more worthy of analysis.

How can we design a new statute catering for a public interest test that works, both in terms of Scotland’s human rights aspirations, but also in terms of being within the scope of what the Scottish Parliament is legally allowed to do?

Land and human rights – the legal framework

Human rights matter, and human rights law matters. This has been the case in the UK for quite some time, but certainly since the passage of the Human Rights Act 1998. That statute threaded an existing international human rights instrument into UK law in a novel way, by giving (in the words of its preamble) “further effect to rights and freedoms guaranteed under the European Convention on Human Rights”.

1998 was also a landmark year for Scotland, with the passage of the Scotland Act 1998. This 1998 statute also catered for that Convention, by ensuring the Scottish Parliament and Scottish Ministers it introduced were constrained and unable to act in a way that encroached on the Convention’s provisions. The Scottish Parliament at Holyrood is separately constrained by provisions which reserve power to the UK Parliament at Westminster.

It is not the place of this blog post to explain all of the rights and freedoms guaranteed under the Convention or the ins and outs of devolution (although it might be useful for people completely new to the topic of human rights to look at some further information on the Equality and Human Rights Commission’s website). It is necessary in this blog post to explain briefly what this has to do with land.

Article 1 of the First Protocol to the Convention provides protection to everyone in relation to the peaceful enjoyment of possessions (including land). This is important in and of itself, but owing to the devolution settlement in Scotland it is especially important. Any law made by the Scottish Parliament can only be valid where any “deprivation” of property (that is to say, compulsory taking) it provides for occurs in a manner that is in the public interest and in a manner that is (for example) non-arbitrary and suitably proportionate towards those it ultimately affects. There are similar rules around “controls” of property (where the existing owner remains in place, but the ownership right is somehow denuded). Challenges have been brought in court against Scottish legislation under Article 1 of the First Protocol, including a successful challenge in relation to agricultural holdings law reform. Challenges can also be threatened long before any court action could be brought, in a way that influences the legislative process.

None of this is improper. Like I said, human rights law matters, and any new reform measures need to cater for human rights. This is not new news, but it is also not the end of the story. Existing work for the Scottish Land Commission, such as this paper from Dr Kirsteen Shields, quite properly considers other human rights instruments beyond the Convention. Instruments such as the International Covenant on Economic, Social and Cultural Rights are now adverted to in Scottish legislation (owing to reforms in the Community Empowerment (Scotland) Act 2015 and the Land Reform (Scotland) Act 2016)). Scotland’s Land Rights and Responsibilities Statement was also influenced by human rights.

Whilst human rights do not begin and end with the Convention, it cannot be denied that the Convention has a certain primacy in the devolution settlement. It must also be acknowledged that recent attempts to rebalance certain human rights provisions in relation to children’s rights became unstuck in a UK Supreme Court case. That judgment – which was unfortunately handed down a week after the first forum meeting, and thus we were unable to discuss it – might have some implications for the proposed incorporation of further relevant human rights instruments into domestic Scots law, but it is not a complete bar to incorporation happening in a way that complies with the ruling.

The potential incorporation of the aforementioned International Covenant on Economic, Social and Cultural Rights – something else that the SNP/Green partnership has committed to do – could have a real impact on how Scotland approaches land and human rights questions in the future, and perhaps feeds into discussion about what is in the public interest when that is at issue.

This article first appeared on the Scottish Land Commission website