Let’s begin with a story about a man called Lord Rossmore. Rossmore was an Anglo-Irish aristocrat and MP who, in 1820, inherited an estate on the Isle of Arran off Scotland’s west coast through the dowry of his wife, the illegitimate daughter of the eighth Duke of Hamilton. One day, the new patriarch invited the village of Catacol, on his estate, to a party at his residence down in High Dougarie. Rossmore’s benevolence was soon thrown into doubt, however, when his servants barred anyone from leaving the residence early. When the villagers were eventually released, they returned home to find their cottages and runrig farmland had been set on fire and razed to the ground by Rossmore’s agents.
It turned out that Rossmore, who walked past the dry-stone and thatch cottages on his way to hunting trips in Glen Catacol, had found these “blackhouses” unsightly, particularly when in the presence of sporting guests. The point of this excessively destructive operation was to move the villagers into new homes less than a mile away, closer to the coast, without land to till and—more importantly—out of sight of Rossmore’s new hunting lodge. The only thing more remarkable is the fact that Rossmore had acted within the law.
Such stories take on the quality of lore, even legend—they feel so remote from our own day to day reality. And yet, the property regime that permitted Rossmore’s actions in the early 19th century remained largely unchanged until relatively recently: the last vestiges of medieval feudalism were only abolished from Scots law in 2004. The consequences of this long stasis are still evident in the way the land is owned. Fewer than 500 individuals are estimated to own more than half of Scotland; the deeds to some 750,000 acres are stowed away in offshore tax havens; and the majority of aristocratic families in Scotland that owned land in 1872 still do so today.
This patrimonial logic has application that goes far beyond Scotland. Regardless of where they begin in the quest to understand the maladies of contemporary capitalism, economists are increasingly drawn back to the land beneath our feet. Recall Thomas Piketty’s much-discussed insight about the tendency for wealth owned to balloon relative to income earned over the last half-century. Former CBI chief Adair Turner looked through Piketty’s data and concluded that “almost all” of this ballooning ultimately comes down to “rising land values.” Recall, too, the root of the global financial crisis: for all the wizardry of the explosive “mortgage-backed securities,” underlying it was a speculative—and very traditional—scramble to own real estate.
So who owns land, and how, matters to us all. And so does the story of a country that is finally doing something about it, by creating the means for the community as a whole to have a greater say over the land they live on.
The way things have always been
For those lucky enough to own property, proving ownership surely ought to be a simple task—you’d expect written documentation spelling out the boundaries of ownership, establishing when it began, and when the previous occupants’ ended. After all, land cannot “go missing” or be stowed away like gold bullion or works of art, and you’d have thought it was in everyone’s interest to have clarity about where the rights and duties of ownership start and stop.
But such common sense turns out to be an unreliable guide to how Scottish landownership works. Attempts to log who owns what go way back—to the Register of Sasines, the world’s first public land register, established in 1617—but there was no compulsory registration until 1847, some 230 years later. (For comparison, England and Wales’s less-arcane Land Registry was established in 1862, with compulsory registration in 1925). And “compulsory” registration is not what you might think it is. Typically it doesn’t bite until a property is “conveyed,” that is when sold or changing hands. But it is estimated that around 25 per cent of estates over 1,000 acres in Scotland have been in the hands of the same family for more than 400 years—longer than the United Kingdom has existed. Even after Scotland established a modern register in 1981, commitments to have all land documented by 2019 came to little. Some 41 per cent of properties—and a staggering 72 per cent of Scotland’s total land mass—are still missing. (In England and Wales, by contrast, about 17 per cent of land is still unregistered).
[su_pullquote]“What Scotland’s coterie of 500 major landowners choose to do with their property has enormous implications for the rest of us”[/su_pullquote]The upshot is that for many Scottish properties you have to scour the Register of Sasines to discern ownership, but good luck with navigating its arcane, map-free and indexless archive. The carefree approach to registration is not just a bureaucratic detail, but reveals our society’s lack of grip on the matter: for, as a consultant might say, “if you can’t measure it, you can’t manage it.” Like the skewed pattern of Scottish landownership itself, the registration reflects a vague but disabling notion that “things have always been this way.”
According to the Scottish Land Fund, estates remain in the same hands for an average of 122 years. Is it merely sour grapes from those of us without heritable property to point out this kind of thing? Not necessarily. The problem is not with landed interests per se, or even the principle of inheritance, but rather the entrenching of privilege at the cost of everyone else. Not all Scottish landowners enjoy the same perks available to the Queen with Balmoral (which unlike Buckingham Palace she owns privately, even though her heirs are able to avoid paying inheritance tax on it). But the broader law and tax regime has always ensured land remains a reliable asset—certain to deliver, as one estate agent boasts, “significant long-term capital gain,” regardless of whether it’s used for commercial enterprise or stately homes. Great news if you own property, but it’s even further out of reach if you don’t.
And it’s not only about private wealth, because land is not like any other kind of asset. What Scotland’s coterie of 500 major landowners choose to do with their property has enormous implications for the rest of us—environmentally and culturally, as well as economically. Consider how, in the early 21st century, 4.5m acres of land in Scotland was reserved for deer hunting and grouse moors. If management of the nation’s land was attuned to the wants and interests of the majority who lived on it, it seems unlikely that such a vast portion would be given over to such minority—not to mention controversial—“sports.”
Property is always power. Questions of who owns the land (and how the land is owned) have been inextricably tied up with how far—or not—the rights of citizens should extend. For centuries, how much land you owned literally determined whether or not you had the vote. “Why should we be beggars with a ballot in our hand?/God gave the land to the people,” goes the old Liberal Party anthem, The Land Song.
When a new Scottish parliament opened in 1999, the long-frustrated question of land reform inevitably shot up the agenda. Many Scots had long wanted a greater say over their forests, woods, marshland and even urban streets. But where could they begin? When things had “always been this way,” what might a “new way” even look like?
The view from the croft
Scotland may have only nine per cent of the population of the UK, but it encompasses a third of its total area—and land has loomed especially large in Scottish history, often in contentious ways. The Highland and Lowland Clearances of the 18th and 19th centuries—of which Lord Rossmore’s pillaging was but a small part—saw thousands of people uprooted over the course of 90 years, often to make way for more profitable sheep pasture. Many of those made homeless headed for the new world, while those who stayed in Scotland were—like the villagers of Catacol—typically given new houses on the coast, often far from home. The expectation was that the people would take up fishing, a practice they had no experience in or feeling for, having mostly been inland farmers. The Clearances have also left their mark in the local lore of the sparse rural communities that did survive, all of whom have their own sad story to tell.
The actions of Lord Rossmore highlight an ancient imbalance of power within Scots law between those with land and those without. The survival of feudal law in Scotland beyond that of anywhere else in western Europe did not persist as a mere historical quirk, like a judge’s wig. Even in this century, up until the end of 2004, the Church of Scotland was still receiving some £30,000 a year in feu duties from its vassals. In some parts of the country, feudalism essentially created a private system of planning, with permission to build on land requiring payment or permission of the feudal superior rather than the local authority. In other cases it meant you could buy a house and own it in effect, but not law, with your feudal superior retaining certain rights as the “true” owner on paper.
Compounding the problem was the fact that Westminster was never much interested in Scotland’s very specific land tenure problems, and of course the landed interests in the House of Lords tilted the scales against reform. Many feudal laws might still be in place today were it not for the reconvening of a Scottish parliament.
But as Donald Dewar—the secretary of state for Scotland who would go on to become Scotland’s inaugural first minister—said during his John McEwen Memorial Lecture on land tenure, in 1998: “We shall have at last the means to legislate in Scotland for Scottish land reform, without risk of our concerns being squeezed out at Westminster.” So umbilical was the connection between political and land reform, that the legislative jostling on devolution went hand-in-hand with ideas about overhauling landownership.
Labour’s 1997 Land Reform Policy Group (LRPG) was chaired by John Sewel, a minister in Donald Dewar’s Scottish Office who helped take devolution through the Lords. (He later gave his name to the “Sewel convention,” which requires Westminster to seek Holyrood’s consent before legislating on devolved matters.) It was Sewel’s recommendations that ultimately shaped the approach of Dewar’s new Scottish executive, who took just 10 months and one sentence to abolish a system that had been in place continuously since the Middle Ages: “The feudal system of land tenure, that is to say the entire system whereby land is held by a vassal on perpetual tenure from a superior is, on the appointed day, abolished.”
Despite Dewar’s sudden death four months after the Abolition of Feudal Tenure Act 2000 gained royal assent, the spirit of his reforms continued. In his McEwen lecture, Dewar had insisted land reform could “involve people with the decisions that matter to them” and bring “a new confidence to our affairs.” The way to achieve this was through a different conception of how the land could be owned, particularly in crofting and rural Highland communities—specifically, ownership by the communities themselves.
The Scottish government’s community ownership initiative was partly inspired by two successful and pioneering bottom-up buyouts that had been pulled off against the odds in the 1990s—to the west on the Isle of Eigg, and to the north in Knoydart, Sutherland. The Land Reform Act of 2003 meant that all communities were given the right to have “first dibs” when their land went up for sale. This might sound like a modest change, but it upended the traditional mindset, and offered real—if incremental—practical potential. Moreover, there were resources to help with purchases through grants given by the lottery-backed (and latterly government-funded) Scottish Land Fund.
To secure such funding, communities must set up a community or heritage trust. Typically, the board of this trust will be composed of a community-picked residents’ association, plus the local council, conservation charities or other public bodies. The residents’ association will always have the majority of board seats, effectively flipping the power dynamic towards the people who are most directly affected: public bodies are present to advise and facilitate, not to thwart or dilute, the residents’ wishes.
The North Harris estate in the Outer Hebrides became one of the earliest buyouts to take place under the auspices of the Scottish government’s own reforms going through parliament. From its initial community purchase of 62,500 acres in 2003, the North Harris Trust (NHT) has expanded since to encompass all the land on North Harris. At the request of the local community, it bought the adjacent Seaforth estate in 2006, followed in 2013 (with Scottish Land Fund support) by the island of Scalpay. Within the Trust’s land is An Cliseam, the highest mountain in the Outer Hebrides, plus Harris’s main settlement of Tarbert—all now owned on behalf of the 1,000 or so people who live there.
Calum Mackay, chair of the NHT, recalls that the bid for community ownership emerged after years of decline in the area, with a lack of affordable housing, few jobs and young people moving away. The people of North Harris were disempowered, and “did not have a say in what happened,” he recalls. But “a number of people within the community felt that the option of owning the land would give them the opportunity to have more control.”
They were right. Among the many things the trust has achieved since its first buyout—including a Community Development Fund which supports local businesses—Mackay is quick to mention the importance of housing and building works. “NHT purchased two houses along with the land, which were rented to local young people,” he says. “Since then we have built another four houses and are currently in the process of building another two.” These may be small numbers but they make a difference in a small community. They have also built several new business units, plus an eagle observatory, a new caravan site and visitor centre to support tourism. The trust’s expanding presence also makes it a powerful local voice, leading to a successful campaign “to persuade Hebridean Housing Partnership to build more social rented houses.”
Perhaps the biggest effect of the buyout, however, is something that Mackay says “cannot be measured: it has given the whole community a boost and has acted as a catalyst.” Plenty of residents have come forward to fill the trust’s board. The 200 crofting tenants who live across the estate also “appreciate having a team of staff at a local level to deal with any issues they may have.”
The next frontier
Today, over half a million acres of land in Scotland is owned and run by over 400 local community groups like the NHT. Since the initial act of 2003, successive Scottish governments of different stripes have updated and amended the scheme to include greater environmental protections, opening it up to larger communities (from an original threshold of 3,000 people or less), with a new right-to-buy mechanism for derelict or disused land, as well as expanding buyouts into urban spaces, the first of which took place in 2017. The next frontier could involve reforming the land under Scotland’s towns and cities, where the economic stakes are far higher given the price of such real estate.
“Our general concern was that the population of Portobello was increasing against the backdrop of a loss of community and public amenities,” says Ian Cooke, the company secretary of Action Porty, the trust behind Scotland’s first urban buyout of a closed church, on Bellfield Street in eastern Edinburgh. Commercial developers were already looking into buying the building—having bought another closed church nearby—and the Church of Scotland declined Action Porty’s initial offer. But the trust answered this refusal by registering for a community right to buy. Cooke says that while the “process is not easy, particularly when you are trying to complete it against the clock,” local support spurred him on. Eventually, people power overrode market forces. Until the pandemic put everything on hold, the venue was running sustainably—hosting private functions, artists’ talks, festivals, ceilidhs and music performances. An emboldened Action Porty plans to expand into a larger “anchor organisation” for the suburb of Portobello.
Mapping the way ahead
Assuming Covid-19 doesn’t scupper the timetable, there will be a significant election in Holyrood this May. Whatever the result, it’s clear that 22 years of devolution has established land reform as a perennial theme—a mantle taken up by various parties and under varying parliamentary arithmetic, passing from Labour-Liberal Democrat coalitions to SNP majorities. It has survived the Conservative Party’s caricature of a government-sanctioned, “Mugabe-style land grab,” as well as the landlords who decried it as an act of “Leninism.” The success of community ownership alone has helped instil a popular consensus around land reform as a worthwhile and positive endeavour.
But for all that has changed in Scots law, for one of the most influential voices, we’ve only just got started. Andy Wightman has spent decades scouring the Register of Sasines, documenting who owns Scotland in books and maps, and sits as an Independent MSP in Holyrood (having recently parted company with the Scottish Greens). While a new parliament giving Scotland “full power” over its land laws was the essential “prerequisite” for action, he believes that “the opportunity for fundamental reform has not been fully embraced by any Scottish administration yet.”
Wightman draws attention to how contemporary community landownership still operates on the private side of the old public vs private divide—to be eligible for support, community trusts must be registered as either a Scottish Charitable Incorporated Organisation or a Company Limited by Guarantee. “This kind of market-assisted land reform will never tackle… concentrated… private landownership… since the opportunities for acquisition and the grossly-inflated values will always frustrate community endeavours,” he tells me. “It should not be left to communities operating in a global property market to fix or reform Scotland’s land problems.”
[su_pullquote]“The success of community ownership alone has helped instil a popular consensus around land reform as a worthwhile and positive endeavour”[/su_pullquote]Indeed in spite of the reform and buyouts, ownership of Scottish land overall remains grotesquely concentrated. Tax breaks still reward private companies more than councils or communities in managing the vast job of reforestation, and offshore havens shelter other land at the expense of the public coffers—and so the public good. As for urban centres, 29 per cent of households in the capital are still living in poverty solely due to housing costs, according to a recent report by the Edinburgh Poverty Commission. “There is clearly a lot of—and a growing—interest in community ownership within urban communities,” Ian Cooke says, “although not necessarily using the [existing] mechanism.” He believes specific reforms to deal with the particular challenges in the urban context are needed.
As Wightman outlines in his book, The Poor Had No Lawyers, truly progressive reform should transcend the old binaries of ownership—my land or yours, private or public—and perhaps move towards a model of land that is not “owned” in the way we’re used to. We could start thinking again in terms of the great, expansive “commons,” an ancient concept steadily strangled by the legal systems that enshrined private property. “We must remember that community ownership is not new,” Wightman says. “Scotland’s Royal Burghs received grants of common good land from the Crown as early as the 12th century, and by the end of the 16th century fully half of Scotland was held in some form of common ownership or use.”
Things have not “always been this way.” And for Wightman, the future of land reform “lies with a much-expanded concept of community ownership by extending municipal, co-operative and crowdsourced models of ownership” to cover “assets including forests, energy and infrastructure.”
And herein lies the rub with Scotland’s supposedly “radical” land reform journey. The measures so far have not transformed the big picture: some have merely dragged Scotland’s anachronistic land laws into the 20th century as the rest of the world has entered the 21st. Most changes have worked within the old paradigm, treading carefully—maybe even neurotically—around established property rights.
But the reforms are nonetheless profoundly important for disrupting an order that once seemed immovable. After 400 years, the old laws began to take on the same inevitable quality as the landed estates they helped to preserve. They became ossified traditions rather than working social mechanisms. The very act of abolishing or updating them changes the terms of debate: what was once immovable is not only possible, but real, and the old excuses crumble in turn.
Scotland today, tomorrow the world
This small nation’s land reform story has necessarily been shaped by its distinct historical problems; few other countries will have to contend with overturning feudal ideas like “vassal” and “superior.” But Scotland’s direction of travel clears a path for others to follow suit, where costly and over-concentrated landownership are problems—in truth, most developed economies.
The politics looks promising too. The popularity of community ownership, like devolution itself, has shown that any loss of faith in politics today is, as much as anything, alienation from power that feels remote. Put it another way: when you offer people the chance to have a greater say over how their locale is run, even when it is tied to bureaucracy and form-filling, it turns out that a large number will take it up—and with few regrets. To date, no land has “fallen out” of community ownership.
Many small communities, long oppressed by the way Scotland’s property was owned and regulated, have found they can achieve mastery over their own affairs by taking ownership of the land that their families might have trodden for hundreds of years. The reforms invite Scots—and anyone looking on from elsewhere—to think of land law, and to some extent even property rights, for what they should always have been: not practices to entrench a privileged elite, but rules that all of us can be invested in, if they give us a shot at the freedom that ownership can confer. More than that, the reforms reveal that these rules are something that should be socially negotiated—and something we have the opportunity to change through the democratic process. Today, even if Scotland’s landownership remains heavily concentrated, the law governing it belongs to us all—and who knows where that might lead.
