Wild Land News no 52, Spring 2001

COMMENT: Land Reform - The Draft Bill Article

The long-awaited Draft Land Reform Bill was launched at Aberfoyle in late February by the Deputy First Minister, Jim Wallace, and the (then) Environment Minister, Sam Galbraith. In reality this is three bills in one - Access, Community Right-to-Buy, and Crofting Community Right-to-Buy.

Access

The Access part of the draft bill is to be read in conjunction with a separate Draft Scottish Outdoor Access Code. In the event, the timing of the launch could hardly have been more ironic, coming only two days after the first confirmed case of foot-and-mouth in Britain. The public debate on the bill, though intense and acrimonious, was short-lived as the spread of the disease rapidly dominated the thoughts of land managers and widespread access restrictions were quickly in operation.

Although it contains worrying elements not included in the original Access Forum's recommendations, the Access section is probably the most robust part of the draft bill. Particular concerns will inevitably focus on the provision for police involvement which introduces an unwelcome element of criminalisation, and on the powers of land managers to suspend access rights for a period of time.

Nevertheless, it does indeed enshrine the right of access to all land, enclosed and unenclosed, and to all non-tidal inland waters. There are numerous exceptions such as those to protect residential privacy and public safety. Certain commercial developments would be out of bounds, as would plantations of vulnerable young trees and land on which crops are growing.

The draft bill specifically states that grassland is not to be treated as a crop and is therefore not out of bounds. Remarkably, the ensuing public debate became bogged down in the definition of "grass". In a move rightly described as "risible" by the Herald newspaper, farmers' representatives insisted that grass must be treated as a crop. The ludicrous implication is that we would be committing an offence by treading on grass while walking in the countryside.

It will be interesting to see how the access debate proceeds once the foot-and-mouth epidemic is over. After a long period of absence, walkers will be in no mood for further restrictions or the emergence of a "Keep off the Grass" culture in the countryside. Neither will the tourism industry which has been desperately hard-hit by the crisis. This appalling epidemic has at least demonstrated the extent to which the rural economy is dependent on recreation, especially on rambling and hillwalking. If people can't get out and about once they travel to the countryside, they won't spend their money going there. No doubt Parliament will take heed as the bill runs its course.

Community Right-to-buy

It is astonishing that such a flimsy piece of legislation as the community right-to-buy should form the centrepiece of the Executive's land reform strategy, and the draft bill appears to incorporate the weaknesses of the 1999 White Paper.

The earlier consultation document "Identifying the Solutions" stated that the right-to-buy "Would greatly empower communities" and "Would effect rapid change in the pattern of land ownership". To say the least, such statements are grossly over-optimistic. The process, after all, has to begin with a decision by a landowner to sell - hardly "empowerment" as there is nothing in the draft bill to act as an incentive for him to put land on the market.

Once the decision to sell is taken, however, the community has to purchase the land as lotted by the seller. If they only want a few acres but the whole estate of, say 10,000 acres, is for sale as one lot, they have to buy the 10.000 acres or forget it. Rather hopefully, the preamble states "there is clearly scope for a mutually agreeable solution to be negotiated between the parties". This is not "empowerment" - if such good a relationship exists between seller and community, there would be no need for legislation to give pre-emptive rights of purchase to the community in the first place. It seems far more likely that landowners will be hostile to legislation which they perceive as an intrusion, and will be less likely to co-operate.

Furthermore, valuation is to be based on open market prices, which in the case of Highland estates are often hugely inflated by their romantic appeal to rich dreamers from anywhere in the world, in search of a private kingdom. How are communities to match such prices? Where will the money come from?

It was the Land Reform Policy Group which claimed that the right-to-buy "Would effect rapid change in the pattern of land ownership". Yet its Deputy Chair, Isabelle Low, was reported to admit at a seminar in Thurso a few months later that "there probably is not going to be a huge number of communities waiting to buy land". The two statements are obviously incompatible, and in the light of this draft legislation the latter one seems far closer to the mark.

If the present Government is to be remembered for its land reforming initiatives, it needs to do much better and much more than this.