Pairc Estate and its lessons for land reform

It was, I think, the summer of 2001 and I was in the office of Simon Fraser, the late and much-lamented lawyer who played a major part in most community land buy-outs of the period. We were chewing the fat on where land reform was going, as it was meaningful to do in these far-off days.

Friday, 7th January 2022, 10:58 am
Pairc Trust board member Angus Nicolson introducing author Bob Chalmers and Agnes Rennie from Acair at the book launch in An Lanntair. Pic: Donnie Morrison.

By happy coincidence, our conversation was interrupted by a call from Angus MacKay, the Holyrood Minister with responsibility for taking through land reform legislation. It was to say that a battle had been won to include a ‘crofting community right to buy’ in the Bill. Simon and I were thus able to celebrate these glad tidings together, briefly setting aside our doubts.

After the 1997 election, with a devolved Scottish Parliament on the horizon, Donald Dewar realised that there were going to have to be some early hits which showed how its existence could make a difference. Donald had hitherto viewed my own interest in land reform with slightly puzzled tolerance. At this point, however, he became very alert to the subject’s usefulness.

We set up a Scottish Office working party under John Sewel to make recommendations which would be pre-cooked and ready for post-devolution Ministers to act upon. In my view, the most radical of these – and also, I naively thought, the most straightforward to implement – was a crofting community right to buy. Since the principle already existed for individual crofts, at 15 times rental value, surely this could be translated into a community entitlement where support existed and regardless of the landlord’s goodwill?

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However, it stuck in my mind how this proposal had attracted the hostility of Scottish Office civil servants, and one lady in particular, who dealt with crofting matters. “Over my dead body”, was written all over her. Sure enough, once the new Parliament was up and running and a Land Reform Bill introduced, the crofting community right to buy had disappeared with the assurance that it would reappear in future crofting reform legislation – which I did not believe for one minute was the intention.

Though this was now devolved business, there was a furore generated by those of us who understood the significance of the omission. Already by the early 2000s, the impetus for crofting estate buy-outs was facing a challenge. There were simply not enough “willing sellers” and there was no avenue for crofting communities, lumbered with a private landlord who wanted to retain that status, to take the process forward. So they didn’t even think about it.

Angus, who was an able Minister and had Lewis family connections, fought the good fight and, on the face of it, won the battle within the Edinburgh apparatus of government. But even as Simon and I welcomed the glad tidings, we also agreed that the people who had tried to stop the ‘crofting community right to buy’ going into the Bill would also do their best to make it as obstacle-ridden and ineffectual as possible.

That tale serves as background to Bob Chambers’ admirable book which meticulously details “A Long and Tangled Saga – the story of the Pairc Estate Community Buyout”. To a large extent, it is the story of how the Pairc community tried to use Section 3 of the Land Reform Act of 2003 to exercise a right which the Act ostensibly offered and which the community repeatedly voted in favour of. Nothing, however, was straightforward. As James Hunter writes in his foreword: “The innumerable obstacles and complexities they encountered were so difficult and time-consuming to surmount or get through that it would have been perfectly understandable if Pairc’s land ownership ambitions had eventually been abandoned”.

They were not abandoned and the other theme of this book is to acknowledge the extraordinary resilience displayed over 13 long years from within a small and fragile crofting community to achieve the desired outcome – though not, it should be noted, through the Section 3 route. Exactly as the faceless obstructors intended, this has delivered not one acre of ownership transfer in almost 20 years and crofting community buy-outs have duly petered out.

Ownership of Pairc had rested since the departure of Lord Leverhulme and the break-up the island estate in 1924 with the Lomas family. There was no big house, the fishing rights had been sold and the owners had never lived on the estate. By and large, the landlord did not bother the community and vice versa. But neither did he do anything useful, as was true of almost all crofting landlords. In other circumstances, Mr Barry Lomas might have become a willing seller and counted himself lucky to pick up a chunk of public money in return for not very much.

Bob Chambers writes: “The landlord declined a request from the consultants for information regarding the estate’s accounts… Despite the estate having been run on a fairly inactive basis, Strutt and Parker estimated a modest annual surplus of £5000 and considered the business to be stable and viable. They also concluded that under community ownership and with active management, the estate had the potential to become more sustainable and deliver added community benefits, without the proposed windfarm”.

That was in 2004. By then, however, Scottish Southern Energy had appeared upon the scene. They knew perfectly well that a buy-out process was under way but did a deal with the private landlord who overnight acquired a huge vested interest in being obstructive. Thus arose the issue of an “interposed lease” which took years to resolve. Did the “right to buy” the landlord’s interest extend to a lease entered into with a third party? In 2007, the Scottish Land Court found that it did.

By then, three years had been wasted and energy sapped. November 29th 2004 should have been a decisive date in the history of Pairc when the people voted overwhelmingly in favour of a community buy-out. On a higher turnout than in any Parliamentary election, 222 residents voted in favour and 32 against while the vote among crofters only was even more decisive – 99 to 17. If Section 3 had been designed to facilitate buy-outs rather than obstruct them, that would have been settled and progress could have been brought forward by a decade. At very least, that would have happened once the Land Court settled the interposed lease issue – which could have been pre-empted by the Bill’s drafters.

Eventually, SSE lost interest in Pairc. In 2012, the Court of Session threw out Mr Lomas’s claim that his human rights were being breached. The following year, David Cameron – who had been heavily involved in the North Harris buy-out and maintained his interest as chair of Community Land Scotland – became mediator between Pairc Trust and Mr Lomas and in May 2015 missives were formally exchanged for a voluntary transfer of the whole estate at “a purchase price considerably greater than that of independent valuations”.

The tragedy was that so much energy had to go into an endlessly complicated struggle against people who had money and determination to maintain opposition through every channel, however spurious. Years of potential progress and the initial enthusiasm and goodwill which had been so important to other community buy-outs were lost to an endless legal battle. That the cause was eventually won is a remarkable tribute to a community which proved worthy of its history.

On a wider front, it is a story that should remind us how land reform has virtually ground to a halt in the absence of political momentum behind it. Reliance on the principle of voluntarism on the part of existing landowners is hopeless. This applies not only to crofting estates but to land that is not under crofting tenure in respect of which the 2003 Act has proved to be an equally damp squib in terms of “right to buy”.

Most of the grants from the Scottish Land Fund now go towards buying pubs, lighthouses and other “community assets” in the absence of any new, substantial land buy-outs to support. These are doubtless worthy enterprises but the mistake would be to think they have anything to do with land reform which is, and always will be, a political issue which will not happen in the absence of a radical, clear-cut, sustained commitment.

The Pairc experience led to some recognition of the need to strengthen powers in the face of hostile landlords. Bob Chambers notes: “The Community Empowerment (Scotland) Act 2015 gives all communities in Scotland in certain circumstances the right to apply to buy land when there (is) not a willing seller where they could show that land was ‘abandoned, neglected or detrimental’ as defined in the legislation and current regulations”. Well, good luck with that. I can count enough caveats in that definition of “certain circumstances” to keep the lawyers amused for decades.

Bob Chambers has written an important and insightful book which records the history of one particularly challenging struggle and the positive outcome that eventually emerged. Its primary purpose, however, should be to challenge Scotland’s current politicians with the questions. Does anyone care enough about land reform to give it the necessary political priority? Or will even marginal changes in the structure of Scottish land ownership always depend, in practice, on the grace and favour of a willing seller?

If so, the status quo has absolutely nothing to fear and the dead hand of landlordism will continue to dominate vast tracts of rural Scotland, some of them very close to home. In the Western Isles, the Stornoway Trust legacy plus a brief golden age in the early part of this century, means a majority of the land is under community ownership. There is still a lot that isn’t, while elsewhere the picture has barely changed.

“A Long and Tangled Saga – the story of the Pairc Estate Comunity Buy-out” by Bob Chambers is published by Acair at £15.95