How does the Land Reform Bill shape up to international land rights standards?

Megan MacInnes – independent researcher and Land Advisor for Global Witness

Two weeks ago I was a witness on the Rural Affairs, Climate Change and the Environment Committee’s hearing on the human rights aspects of the Land Reform (Scotland) Bill. This Bill contributes to achieving the Scottish Government’s vision for a stronger relationship between the people of Scotland and the land of Scotland, where ownership and use of the land delivers greater public benefits through a democratically accountable and transparent system of land rights. This vision will help Scotland move closer to a number of its existing human rights obligations, but of particular importance are new guidance on the governance of land – the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Forests and Fisheries (called the VGGTs for short).

Obscure as they may sound – these VGGTs are an extremely important new development for anyone working on land rights across the globe. They are the only agreed inter-governmental statement on how the governance of land tenure and human rights interact and they reiterate the importance which secure land tenure plays in enabling other human rights to be respected, such as the right to food. They also remind us that protecting and respecting human rights is not just the job of the State, but everyone – particularly companies and that if they fail to do this, Governments should step in.

Since the adoption of the VGGTs in 2012, community groups and the organisations supporting them (the equivalents of Community Land Scotland) have been raising awareness of the importance of the VGGTs, applying the Guidelines in their own work, as well as working with Governments to implement them formally. For example the VGGTs are one of the underlying principles behind a new global call to action to protect indigenous and community land rights, due to be launched in early 2016 by organisations including Oxfam and the International Land Coalition (to which Community Land Scotland is a member).

But the VGGTs are not just relevant for the Global South, they are also an important guide for Governments, communities, in fact anyone involved in land issues in the developed world, such as here in Scotland. For those of us working on land rights internationally, Scotland is a paradox – on the one hand is its regularly repeated most concentrated pattern of land ownership in almost any developed country; only 432 landowners account for half of all Scotland’s privately owned land. On the other hand, the “community right to buy” model so successfully implemented here is extremely progressive, in fact the provisions placing an obligation on the owner to sell land to the community when it comes on the market (if they have registered an interest in it), is said to be unique.

The high ambition of the Scottish Government’s land reform process has certainly caught the headlines. But how does this rhetoric compare with what would be considered progressive land reform internationally? To begin to answer this very large and complex question, I have done a short analysis which compares key sections of the Land Reform (Scotland) Bill, with relevant parts of the VGGTs.

At an overarching level, the Bill and Policy Memorandum move Scotland closer to implementing the VGGTs; for example they aim to ensure an effective system of land governance, address barriers to sustainable development, improve transparency and accountability in land ownership, and manage land and rights in land for the common good. Some elements of the Bill and existing Scots Law, such as the community right to buy, already go far beyond what’s in the VGGTs.

However, despite this good start, there are some elements of the Bill which could be strengthened with regard to the VGGTs and Scotland’s wider human rights obligations. The vision for land reform and human rights in the Policy Memorandum is not reflected in the Bill itself. This could be amended by explicitly recalling the Scottish Government’s obligations relating to the right to food and adequate housing, as well as the VGGTs at the top of the Bill (for example in the proposed statement on “land rights and responsibilities”).

The section on disclosing information about who controls land in Scotland may not improve either the transparency or the accountability of land ownership unless the Bill is strengthened to require this information to be public at the point which the land is registered with Scotland’s Land Register, rather than through the voluntary basis currently proposed. What is really needed to reveal secret off-shore land ownership is to require that the registered owner be a “natural person” (a human being rather than just a “shell company”) and the addition of the requirement that only companies registered in Europe would be able to buy land in Scotland (as recommended by the Land Reform Review Group).

In order for the guidance proposed in the Bill for how land owners should engage with communities to be in-line with the VGGTs, two amendments are suggested. Firstly, this should be a binding requirement on land owners rather than voluntary, and secondly the Bill should detail concrete sanctions which will come into force should community engagement not be undertaken, or the results of it ignored.

The degree of commonality between the Bill and the VGGTs show just how far Scotland has moved the land reform agenda forward. With a small number of further amendments, the benefits could be substantial and in essence ensure that the Government’s aspiration outlined in the Policy Memorandum is transferred into the concrete reality of the Bill itself.