Land Reform Act could still face private legal challenge, warns firm partner 


Legal pressure remains on parliament land reform process

THE LAW AIMING to make headway on Scotland’s unequal land system could still be disrupted through a private legal challenge, a legal partner from Turcan Connell has warned. 

Grierson Dunlop was speaking at The Scotsman media group’s Edinburgh conference on the recent Land Reform Act 2016. Dunlop said that although he didn’t currently foresee a specific legal challenge, there remained the possibility that a post-implementation challenge could be made to the act on general or specific terms.

Land reform – the campaign to redistribute the wealth and opportunities of ownership – has faced numerous legal blockages due to the legal system’s historic intransigence on private property rights. 

Committee chair for the passage of the act, Rob Gibson, has warned that a court challenge was likely. Law firm Brodies has also raised the spectre of a legal challenge

Addressing the conference, Dunlop said: “The next question is whether there will be legal challenges to the validity of the act. The answer is nobody knows yet. I don’t personally believe that the Scottish Government has sought to pass an act which is invalid or contrary to the European Convention on Human Rights (ECHR). 

“However, the parliamentarians who passed the 2003 Agricultural Holdings Act did not consider then that they were passing anything other than good law. The outcome of the case Salvesen against Riddell was that the provisions of the act were deemed by the UK Supreme Court to be incompatible to ECHR and therefore outwith the competence of the Scottish Parliament.

“I do not anticipate any group or collective challenge to any part of the act at this stage, but that may change when the detailed provisions come into play once the secondary legislation is in force. 

“I think what is more likely is a challenge follows at some point in the future when a community group or a land owner or a landlord or a tenant seek to challenge the act following an outcome which has not been favourable to that entity, which was the case with Salvesen against Riddell.”

Law firm Brodies threatens legal battle over Land Reform Bill proposals

The controversial Salvesen v Riddle case led to the dilution of the 2003 Agricultural Holdings act after a lengthy legal battle, when billionaire landowner Alastair Salvesen eventually won a legal right to evict tenant farmer Andrew Riddell.

Riddell, whose family has farmed the land in East Lothian for over 100 years, committed suicide on the eve of his eviction.

The Scottish Tenant Farmers Association said that the Scottish Government has subsequently been “held to ransom by lawyers” over the fall-out from the case. 

However, human rights legislation on private property divides over its interpretation of Article 1 Protocal 1 of the European Convention on Human Rights.

ECHR states: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

“The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Just over a week ago ex-landowner Barry Lomas threatened crofters with a gigantic legal bill over a land transfer. 

Picture courtesy of Blogtrepreneur via Flickr

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