Reform Scotland Research Articles

The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam

In 2003, the Scottish Parliament enacted the Land Reform (Scotland) Act, which, among other reforms, grants to “everyone” a right to access virtually all land in Scotland for a wide variety of purposes, including recreation, educational activities, and even some commercial or for-profit activities. Legal recognition of this broad-ranging “right to roam” comes after more than a century of debate over the public’s right to access privately-owned land in the Scottish Highlands. This paper is the first historical account of the origins of the remarkable Scottish right to roam. It sets the debate over the right to roam with a clash between two different visions of the sporting life: One, older, rooted in the Victorian and Edwardian periods, viewed the sporting life as one of hunting, aided by the use of modern technology — rifles and such — and much older technology in the form of dogs and horses. The other vision is of more recent vintage. It is a vision of contact with nature through walking, hiking, and similar forms of unmediated interaction with nature. Curiously, both visions of the sporting life claimed the mantle of preservation and conservation. The paper argues that the culture of unmediated contact with nature ultimately prevailed as a democratic culture became more entrenched in both politics and society.

The Land Reform (Scotland) Bill and Human Rights: Key Points and Recommendations

This paper supports the view that human rights can be utilised as a progressive force in land reform in Scotland. Due to unprecedented levels of inequality in Scotland, the Scottish Government is obliged to take action to address the present situation of poor human rights for many in Scotland. Understanding land as a national asset is key to progress in this respect. Obligations to support human rights for all through land reform emerge from both the International Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights. Key recommendations to strengthen the Land Reform Bill in compatibility with international human rights standards are presented.

Beneficial Interest and the Land Registration Act of 1979

The Land Reform (Scotland) Act 2016 provides for the creation of a public register of controlling interests in the owners and tenants of land. The idea, it turns out, is not a new one. Forty years ago the UK Government came close to introducing a legislative provision which sought to achieve much the same ends. The existence of clause 4 of the Land Registration (Scotland) Bill of 1978 has hitherto been unknown. On the basis of a study of the relevant Government files, this paper considers why the clause was thought to be necessary and why it was discarded just before the Bill entered the public domain. Clause 4 was a response to a growing demand for information as to the ownership of land in Scotland. In a path-breaking book, Who Owns Scotland?, published in 1977, John McEwen attempted to list the owners of all estates of over 1,000 acres. On McEwen’s figures, around half of Scotland was owned by 546 individuals or companies. Far from satisfying public curiosity, McEwen’s book only served to increase it. As it happened, the then Labour Government was preparing a Bill for a new map-based system of land registration. The new register would show who owned the land. The purpose of clause 4 was to show who owned the owners of the land by requiring any company or trust seeking to register a title to disclose who held the ‘beneficial interest’ in the company or trust. Clause 4 was championed by the Ministers in the Scottish Office but resisted by civil servants. Having overcome that resistance, the Secretary of State for Scotland, Bruce Millan, was unexpectedly defeated by the refusal of the Lord Chancellor, Lord Elwyn Jones, to allow to be introduced for Scotland a provision which he considered unsuitable for England and Wales.

Regulatory Reform (Scotland) Bill

Regulatory Reform (Scotland) Bill

Give Scottish GPs their own general medical services contract, urges think tank

A Scottish think tank has called for the UK-wide GP contract to be ditched, in favour of a separate contract for family doctors in Scotland. In its latest report , published earlier this week, Reform Scotland says that the devolution of healthcare from Westminster and diverging health policies across the four UK countries mean that a specific Scottish general medical services (GMS) contract should be negotiated.1 Currently, the GMS contract, under which 87% of general practices in Scotland operate, is negotiated on a UK-wide basis, but Reform Scotland’s director, Geoff …

Review: Financing Scottish Government

The debates about the financing of Scottish devolution are not just politically highly charged and fast moving, but have also become deeply disjointed. Much of the debate has been driven by politics, with the SNP government arguing for 'fiscal autonomy', and unionists accepting the desirability of some more limited measure of tax devolution. The Caiman Commission's fairly limited recommendations were further diluted by the Labour UK Government in its November 2009 white paper Scotland's Place In the United Kingdom, but while that white paper no longer represents UK Government policy, the Caiman Commission's recommendations are still the lodestar for London thinking. Meanwhile, the lobby for much more extensive fiscal devolution has grown, taking an institutional form in the 'Campaign for Fiscal Responsibility' embracing such business figures as Jim McColl and Reform Scotland, as well as academics. But the Scottish debates are only one element in the mix: there are concerns expressed from various quarters, but most vocally from Wales, about the amount of funding that the present system allocates, and the pressures are to change that rather than to add even a limited measure of fiscal autonomy. All this is against a backdrop of seriously constrained public spending, which both makes the issue of protecting Scottish spending (and that in Wales and Northern Ireland) more pressing, while also meaning there are funds to cushion a transition to a new system.

An Opportunity Missed? Some Comments on the Interpretation and Legislative Reform (Scotland) Bill

An Opportunity Missed? Some Comments on the Interpretation and Legislative Reform (Scotland) Bill

New Legislation for Outdoor Access: a Review of Part 1 of the Land Reform (Scotland) Act 2003

The manifesto for the incoming new Labour government of 1997 had a commitment to create greater freedoms for the public to enjoy open countryside, a rather old Labour inheritance. This led to legislation to create new rights of public access to land, enacted for Scotland through Part 1 of the Land Reform Act 2003 and, for England and Wales, in Part 1 of the Countryside & Rights of Way Act 2000. Scottish rights of access came into force on 9 February 2005 while, for England, a region-by-region programme of implementation was completed by the end of October 2005. Implementation in Wales took place on 25 May 2005.

A working land: crofting communities, place and the politics of the possible in post‐Land Reform Scotland1

In the context of the Land Reform (Scotland) Act 2003, this paper examines the political possibilities that are created when land is removed as a commodity from circuits of global capital and when, in areas under crofting tenure, it comes under collective ownership. Drawing evidence from the case of the North Harris Trust, Isle of Harris, the largest community purchase of land thus far, the paper considers how place is re‐configured in complex and contingent ways through the re‐working of the materiality and meanings of the land and of nature. The latter includes disturbing class‐based and colonizing discourses of ‘wilderness’, on the one hand and, on the other, exploring the ways through which the wind is commodified. The paper argues that this re‐constitution of land and nature does not lead in a simplistic way to a reversal of processes of enclosure (and globalization) but rather, through the co‐performance of land and nature in the new political spaces created by a community trust, the relationship between the ‘local’ and the ‘global’ is altered such that a more sustainable and socially just future may be imagined.

The great land debate and the Land Reform (Scotland) Act 2003

This article seeks to give a flavour of the contemporary land debate in Scotland; a debate which emphatically concerns land and landscape, law and justice. It considers the historical background to that debate, including the tragedy of the Highland Clearances, and follows the progress through the recently re-established Scottish Parliament of the Land Reform (Scotland) Act 2003. This ground-breaking and controversial Act falls into three parts: the first provides for a general public right of access to land throughout Scotland; the second gives communities a right of pre-emption over land coming on the market; and the third empowers crofting communities to acquire land.

The Crofting Community Right To Buy in the Land Reform (Scotland) Act 2003

The Crofting Community Right To Buy in the Land Reform (Scotland) Act 2003

The UNCITRAL Model Law: New Draft Arbitration Acts in Germany and Sweden

### (a) The success of the Model Law The UNCITRAL Model Law on Arbitration was adopted by the United Nations on 11 December 1985 as a recommendation to the states that they take account of it when changing existing or enacting new legislation dealing with international commercial arbitration. Meanwhile, this recommendation has been followed by an increasing number of nations, including, e.g . Canada (‘Commercial Arbitration Act’ dated 17 June 1986), Australia (‘International Arbitration Amendment Act 1989, in force since 12 June 1989) and some US States.1 In Europe, the Model Law has been adopted as a pattern for modern arbitration acts only in a few countries: Bulgaria (‘Law on International Commercial Arbitration’, dated 29 July 1988), Cyprus (‘The International Commercial Arbitration Law’ of 1987), the Russian Federation (‘Law on International Commercial Arbitration’, dated 7 July 1993) and Scotland (‘Law Reform (Scotland) Act 1990, section 66, Schedule 7, in force since 1 January 1991). However, of those countries in which, traditionally, most of the arbitration proceedings take place, for example England and Switzerland, none has so far adopted the Model Law entirely or partially.2 Therefore, it is particularly interesting to note, that two states of Western Europe, Sweden and Germany, are considering following the recommendation given by the UN 10 years ago. ### (b) The Situation in Germany The law on arbitration in Germany is more than 100 years old. The provisions that regulate domestic and international arbitration are part of the Act on Civil Procedure (Zivilprozesordnung, ZPO) which was enacted in 1877 and amended in 1930 and 1986, but only with respect to some non-essential issues. The ratification of international treaties such as the 1958 New York Convention and the ongoing modification of the present act by case law of the Budesgerichtshof, makes if difficult and even impossible for foreign lawyers to get reliable knowledge of the German law on arbitration. …