'Land is a national asset that should serve the public interest'

This article was first published in The Herald on 10 April 2015.

Land, owned privately or otherwise, is a national asset that should serve the public interest - By Professor Alan Miller

Human rights are not a "red card" to be played by landowning interests to obstruct debate on land reform.

You may be forgiven for thinking that when reading headlines about the Scottish Government's land reform plans allegedly costing taxpayers £600 million in compensation bills.

Nor are human rights a "trump card" offering an "absolute right to buy" for non-landowning interests. This alarms landowners and polarises the debate.

In fact human rights underpin the public interest, not any vested interest.

Realisation of this opens up the common space for informed and constructive dialogue and takes red cards and trump cards off the table.

First, the right of public participation means that everyone should have the opportunity to have a say in deciding where the public interest lies on land reform. This enables an evolving process in which a changing society determines what is the relationship between land and people.

Secondly, internationally agreed human rights provide the framework and guidance towards determining the public interest.

For example, this September the United Nations will adopt the Sustainable Development Goals (to replace the Millennium Development Goals, 2000-2015) and Scotland will need to start to form its own strategic plan to meet the Sustainable Development Goals by 2030. The UN General Assembly has resolved that the goals should be shaped in accordance with the international human rights framework.

This framework includes but goes beyond the European Convention Human on Rights (ECHR).

It is the ECHR which is most often referred to in the land reform debate in Scotland. This is because it is part of our domestic law and also because it includes the right to "peaceful enjoyment of possessions". However the ECHR also states that this right needs to be balanced with the public interest and permits a government to control the use of land. This is why, for example, compulsory purchase orders have been around for a long time and comply with the ECHR.

However, it is the broader international human rights framework that needs to become more visible in this debate in Scotland because it helps to inform the public interest.

For example, the UN International Covenant on Economic, Social and Cultural Rights states that individuals have the right to an adequate standard of living, including the right to adequate housing, food, decent work and the highest attainable standard of health.

Whilst clearly not all of these rights can be immediately guaranteed overnight in all countries, governments have agreed that they do have the duty to use the maximum available resources to progressively realise these rights.

Looked at through a human rights lens, land then is to be seen as a national asset, part of the available resources to realise everyone's rights. Whether owned privately or in any other way, it should serve the public interest.

Of course this certainly does not mean that all responsible landowners, including our farming community, should be dispossessed. Nor, however, does it mean that a government is powerless if, for example, abandoned or neglected land can be put to better public use.

It does mean that the balance of power between landowner and non-landowner needs to continue to shift. This itself will lead to more constructive dialogue between landowners and communities, with access to law being the last resort to determine the public interest. It will promote the better use of land, whether private or otherwise.

Scotland does appear to be considering this direction of travel.

A Land Reform Bill is to be brought before the Scottish Parliament very soon. This is a real opportunity for public debate and for parliament to set off on this journey.

A Land Rights and Responsibilities Policy Statement is likely to be considered by parliament as part of this Bill. The Scottish Government draft states as its first principle that "the ownership and use of land should be in the public interest and contribute to the collective benefit of the people of Scotland".

This is a promising and welcome start, but only a start. Learning from and contributing to international experience and practice, including the human rights framework, will help take us all forward together​.