The Land Reform (Scotland) Bill 2024 has proposed significant changes to legislation relating to land in Scotland and introduced numerous new obligations and requirements. To assist with the enforcement of these new provisions, the Bill introduces the role of the Land and Communities Commissioner. Director, Gillian Gibbons and Trainee, Erin Connor, look at the key functions and enforcement powers of the proposed new Commissioner
The Land Reform (Scotland) Bill 2024 ("the Bill") proposes the establishment of a new role, to be known as the Land and Communities Commissioner ("the new Commissioner"). The role of the new Commissioner is intended to be separate from the existing Land Commissioners and the Tenant Farming Commissioner, with its function and powers set out in the Bill.
The Existing Legislation
Section 4 of the Land Reform (Scotland) Act 2016 ("the 2016 Act") established a body to be known as The Scottish Land Commission ("the Commission"). The Commission was to be made up of five Land Commissioners and the Tenant Farming Commissioner. The Bill seeks to amend the current legislation to include the establishment of a Land and Communities Commissioner within the Commission. The new Commissioner will be integrated into the Commission, but with its own distinct function.
Who Will Be The Land and Communities Commissioner?
The 2016 Act provides for various factors to be considered when appointing a member to the Commission. The Act requires Scottish Ministers to take into account the benefit to the Commission of having experience in areas such as land reform and economic issues. Scottish Ministers are also required to encourage equal opportunities.
The Bill introduces further requirements directly connected to the appointment of the new Commissioner, relating specifically to their area of expertise. The Bill provides that any individual to be appointed as the new Commissioner must have expertise or experience in both land management and community empowerment.
The Bill disqualifies individuals who, either currently, or in the year preceding their appointment, own a large landholding from becoming the new Commissioner. An individual's appointment as the new Commissioner is to terminate in the event that they become the owner of a large landholding during such appointment. This disqualification criteria will apply alongside the existing criteria in the 2016 Act, which, for example, prevents an individual from being appointed to the Commission if they are a member of the House of Commons.
The Bill provides that the Scottish Ministers have the power to appoint an interim role of an "acting" Land and Communities Commissioner, who can carry out the role of the new Commissioner until such time as there is a new Commissioner appointed to office. The Bill states that any individuals who are disqualified from taking up office as the new Commissioner are also disqualified from the acting role.
The new Commissioner may delegate the exercise of their role under the Bill to a committee, an employee of the Commission or any other person. The new Commissioner can exercise their discretion as to their delegation; however, any delegation does not impact on their responsibility to carry out their function. Although the new Commissioner is subject to disqualification in certain circumstances, it is unclear from the current terms of the Bill what, if any, conditions the delegates will be subject to.
The Function of The Land and Communities Commissioner
The new Commissioner is responsible for enforcing the community engagement provisions for owners of large landholdings. These provisions, including the criteria for large landholdings, are discussed in more detail in our previous article here, and include the requirement for the creation and maintenance of a land management plan, among other obligations.
A perceived breach of these obligations can be reported to the new Commissioner. Only a limited number of people are able to report a breach to the new Commissioner, these are:
- Historic Environment Scotland;
- Scottish Natural Heritage;
- Scottish Environment Protection Agency;
- The local authority, in which the land subject to the reported breach is located; and
- A body that has registered an interest, or is eligible to register an interest, under the Land Reform (Scotland) Act 2003, in the land to which the alleged breach relates.
The report must contain details of the person submitting the report, the alleged breach and the provisions that have allegedly been breached.
Once the report has been received, the new Commissioner must then decide whether to investigate. In making their decision, the new Commissioner must be satisfied that the report contains all required information to take matters forward. The report must not be substantially the same as an earlier report submitted by the same reporter.
The new Commissioner has the power to request further information from the reporter if they consider that the report lacks the information required to proceed to an investigation. The new Commissioner may decline to investigate the report where, among other things, it does not satisfy the aforementioned criteria.
At any stage of the investigation, the new Commissioner can require information to be provided by any individual to assist with their investigation. If the individual fails to comply, the new Commissioner can impose a fine not exceeding £1,000.
If, after their investigation, the new Commissioner determines that a breach has occurred, they can implement a fine not exceeding £5,000. However, such a fine can only be imposed if:
- The person who committed the breach has been given an opportunity to agree with the new Commissioner about what that person must do to remedy the breach and has either declined to enter into an agreement to document such measures or has failed to implement their obligations in terms of such agreement; or
- The new Commissioner does not consider it appropriate to give the person an opportunity to remedy the breach.
There are grounds for the person on whom the fine is imposed, to appeal the fine to the Lands Tribunal for Scotland on the grounds that the decision was based on an error of fact, was wrong in law or was unfair or unreasonable for any reason. The Bill sets out the detailed provisions for such an appeal procedure.
The Scottish Ministers must also consult with the new Commissioner prior to the creation of Community-Engagement obligations on owners of large holdings.
When requested to do so by the Scottish Ministers, the new Commissioner must prepare and provide a report to Scottish Ministers to assist with their decision making regarding new lotting provisions on the sale of large landholdings proposed by the Bill. Further information on the proposed lotting provisions is detailed in our article here. When preparing such a report, the new Commissioner should adhere to any instructions they receive from the Scottish Ministers.
The Bill also provides that the new Commissioner should work alongside the other Land Commissioners to the extent that their roles overlap.
The provisions relating to this role will no doubt be amended as the Bill passes through the Scottish Parliament. However, concerns have already been raised over the new Commissioner's powers and that the introduction of the new Commissioner to the Commission could see a shift in the Commission's role from being that of an advisory role to more regulatory.
This article was co-authored by Erin Connor, Trainee, Rural
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