Introduction to Land Tenure

 by Andy Wightman

The land of Scotland comprises the air, sea and inland water within the territorial limits. In addition to its physical dimensions, this territory is also a political concept since it defines the extent of sovereignty and jurisdiction of Scotland's land law.

Scotland's land law establishes the legal framework for landownership, which is a property system embracing the whole country. The principal legal basis for landownership is the land tenure system which, in Scotland, remains feudal. Feudalism is characterised by a hierarchical system of rights, with God and the Crown at the apex and superiors and vassals below them. Title to land under feudalism is therefore qualified by the rights of feudal superiors including the Crown.

The introduction of feudalism is commonly associated with the reign of David I and was originally designed as a system of government whereby the Crown granted rights to the nobility in return for military and financial services. Over the centuries this arrangement has been gradually converted into a system of private property with the Crown now having limited powers. Increasingly, the public interest has been expressed through statute law which, for example, has nationalised planning permissions and certain mineral rights.

Over the years a number of reforms have been made to the feudal system, but its basic framework has remained unaltered. In contrast to other European countries where substantial land reform (usually involving law reform and redistribution of land) has followed political revolutions or autonomy, Scotland's land laws have never been fundamentally reformed to meet the aspirations of a modern democratic society. This is confirmed by the authoritative 19th century observation of Sir John Sinclair that, "in no country in Europe are the rights of proprietors so well defined and so carefully protected."

 

The pattern of landownership

Not only is Scotland unique in the world in still having feudal tenure, but the pattern of private ownership that exists is the most concentrated in Europe. For the past 900 years, around 1500 estates have dominated the ownership of land.

Despite the existence of the Register of Sasines and a newer Land Register which records legal interests in land, it remains impossible to find out easily who owns land in any locality. Studies which have been carried out, however, reveal the following.

Of Scotland's 19 million acres, just under 12% is owned publicly of which the vast bulk (over 10% of Scotland) is owned by the Secretary of State for Scotland, and consists of the Forestry Commission and Department of Agriculture estates. The rest of Scotland (88%) is owned by private individuals, companies and trusts.

Concentration of ownership of private land in Scotland 1995
% of private land No. of owners
10 15
20 46
30 103
40 201
50 379
60 791

This concentration of private ownership becomes even more marked in certain counties:

In the Highland counties as a whole, a mere 100 owners control 3.6 million acres, or over half the land area of the region.

This pattern of ownership stands in stark contrast to other West European countries where, typically, the pattern is around 100 times less concentrated and where communal forms of ownership are commonplace.

 

The impacts of the pattern

Ownership of land confers political and economic power. Since land is fixed in supply, unlike labour and capital, it commands a monopoly position in the economy and, as a result, its value has constantly risen over the centuries. This value, which is at its highest in city centres but which can be just as high in remote areas where developments such as communications masts, superquarries or oil related activity can boost otherwise low values, is captured by the owner of the land. In the absence of any taxation of land values, the burden of taxation falls on the labour and capital employed in any development. With a concentrated pattern of ownership, a small number of people in any community therefore end up benefiting substantially more than others.

Landownership still confers political power with substantial numbers of influential landowners enjoying the right to legislate on land-related matters in the House of Lords. The current (October '96) Minister for Agriculture, Forestry and the Environment in the Scottish Office is not only a landowner but is unelected to any legislature.

Landownership patterns and the power enjoyed by landowners within the current tenure system have profound influence on urban and, in particular, rural development. To quote Bryan MacGregor, Professor of Land Economy at Aberdeen University:

The impact of the land tenure system goes far beyond land use. It influences:

In many areas of rural Scotland, large landowners play a crucial role in local development: they are the rural planners.

Landownership patterns and the character and motivations of individual landowners also play an enormous role in determining how land is used. Given the importance of promoting economic and environmentally sustainable land use, it is vital that local people have the opportunity, both through the ownership of land, and through democratic processes of planning, to influence and benefit from the natural resources around them.

 

The land debate

The debate about land ownership and use has too often been poorly informed and characterised by the shallow politics of envy and outrage. Whilst the media has helped to raise the profile of the debate, it has seldom progressed beyond the reporting of conflicts or the latest bizarre or outrageous activities of some eccentric or mysterious landowner. As Dr James Hunter recently observed, newspaper articles bulge with condemnatory articles about the way in which this or that community has had its prospects blighted as a result of finding its entire future dependent on the whims of the crook, the charlatan or the speculator who has become its laird. Repeated anguish by local and national politicians has done nothing to prevent the recurrence of such cases, as demonstrated by the current situation with the Isle of Eigg.

( Editor's Note - since this was written in October, the islanders have successfully raised the money by charitable donation to buy their island - a remarkable achievement, but not a solution for the nation as a whole!)

Such failure to address deep-seated and long standing problems are a symptom of our collective failure to reform the system. Only when the system is reformed and set within a new legislative basis can the problems begin to be tackled in a systematic way. A Scottish Parliament with appropriate powers is the key to that reform.

 

The powers of a parliament

Both the tenure system and the pattern of ownership which emerges from it are the products of 900 years of Scots land law. A Scottish Parliament will be the legislature for Scots law and will therefore have the power to reform the land tenure system, a process which has already started with the 1991 report of the Scottish Law Commission on the abolition of the feudal system. In addition, a Scottish Parliament will have authority over the way in which land is used and developed through the planning system and the various powers of land use agencies such as the Forestry Commission and Scottish Natural Heritage.

A Parliament will also have the powers to, for example:

The Parliament will be able to legislate in the public interest, free of the influence of landowning hereditary peers. It will be a forum for tackling an issue of vital importance to Scotland.

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Andy Wightman is author of "Who Owns Scotland" from which all quoted figures are sourced.
© Cannongate Books Ltd.(October 1996)