Land Rights and Responsibilities Statement: a consultation

Chapter 3: A fair balance of rights and responsibilities

Scope of the Land Rights and Responsibilities Statement

22. The Statement will be relevant to all land and buildings in Scotland, both urban and rural. It will be equally relevant to all the people and communities of Scotland, whether land owner, land manager, tenant or land user, including government, public bodies, community groups, businesses and individuals. It is the Scottish Government's intention that the vision and principles in the Statement will inform policy and practice around land issues, operating in concert with other relevant strategies and policies.

23. The aim of the Statement is to set out principles that reflect a fair and proportionate balance of rights and responsibilities. First Minister Nicola Sturgeon MSP opens the Scotland's Economic Strategy with the statement that: "Creating a fairer society is not just a desirable goal in itself, but is essential to the sustained, long-term prosperity of the Scottish economy. Our approach to economic policy is based on the principle that delivering sustainable growth and addressing long-standing inequalities are reinforcing - and not competing - objectives." ^[15] The Scottish Government considers that we all benefit when more people have the opportunity to flourish, and a fairer nation is a more prosperous one and offers better quality of life for everyone.

International instruments and human rights

24. The Scotland Act 1998 requires that all legislation of the Scottish Parliament and all actions of the Scottish Ministers be compatible with certain core rights contained in the European Convention on Human Rights ("the Convention rights"). The Human Rights Act 1998 requires every public authority in Scotland to act compatibly with the Convention rights and enables human rights cases to be taken in domestic courts. The Convention rights are relevant to rights and responsibilities in relation to land. In particular the right to property is protected under Article 1 of Protocol 1 of the European Convention on Human Rights ("A1P1"). However, A1P1 rights are not absolute rights. Interference with the right to the peaceful enjoyment of possessions can be permitted in certain circumstances if certain conditions are met, including that the interference is proportionate and in the public interest.

25. The Scottish Government recognises that land rights are involved in the realisation of a broad spectrum of human rights. The International Covenant on Economic, Social and Cultural Rights is at the heart of the Land Rights and Responsibilities Statement, and more widely in our land-related policies. Economic, social and cultural rights are fundamental to a life of dignity. The Covenant contains rights relating to:

• work in just and favourable conditions
• social security
• an adequate standard of living (including food and housing)
• the highest attainable standard of physical and mental health
• education
• participation in cultural life and enjoyment of the benefits of scientific progress

26. The interrelation of property and tenure rights with wider human rights underpins the Food and Agriculture Organisation of the United Nations' Voluntary Guidelines on the Responsible Governance of Tenure. The goal of the VGGTs is to support the progressive realisation of the right to adequate food and national food security. Within this context they promote secure tenure rights and equitable access to land, fisheries and forests, as a means of eradicating hunger and poverty, supporting sustainable development and enhancing the environment. The VGGTs are voluntary guidelines and do not have any legal force. It is also important to note that national implementation will be guided by national circumstances. The VGGTs contain the principle of "responsible investment." They state that responsible investments "should do no harm," and are defined as recognising wider policy objectives around providing benefit to the country and its people; responsible investments should be acknowledged by Government and non-government bodies.

27. The United Nations Sustainable Development Goals (" SDGs") have also been taken into consideration in the drafting of the proposed Statement. Scotland was one of the first nations in the World to sign up to the SDGs, and make a dual commitment to tackle poverty and inequality in Scotland, and to help developing countries to grow in a fair and sustainable manner. ^[16] The Scottish Government will implement the SDGs domestically through the National Performance Framework and Scotland's National Action Plan for Human Rights. The 17 Goals aim to tackle key barriers to sustainable development such as inequality, unsustainable consumption and production patterns, inadequate infrastructure and lack of adequate employment. These issues are also reflected in the Land Rights and Responsibilities Statement.

28. The principles of the ICESCR, the VGGTs and the SDGs are central to the Land Rights and Responsibilities Statement's aim of providing a context within which to consider the ongoing development and balance of rights and responsibilities relating to land, in order to realise the full public benefits of land in Scotland.

29. It should be noted that, in addition to human rights there are further rights related to land protected under Scots law. For example, individuals have the right to responsible access to land, ^[17] and communities can apply for a pre-emptive right to buy, ^[18] or a right-to-buy for the purposes of sustainable development, ^[19] or request asset transfer from public sector bodies. ^[20] Rights can also be granted by contracts, such as under tenancy or loan agreements. These rights can interact in complex ways, for instance landlords and tenants have A1P1 property rights and a community group may have rights both as a tenant, and through a pre-emptive right to buy.

30. The Land Rights and Responsibilities Statement is not intended to be a means of listing these rights, but rather an opportunity to express the link between these rights and the responsibilities that derive from them.

A human rights based approach

31. The Scottish Government proposes a human rights based approach to the Land Rights and Responsibilities Statement. Such an approach puts people and their fundamental human rights at the centre of policies, adding this perspective to conversations around land, and recognising it as an economic, social and cultural asset. The Scottish Human Rights Commission sets out the following values for what a human rights approach should mean in practice:

• Participation: People should be involved in decisions that affect their rights.
• Accountability: There should be monitoring of how people's rights are being affected, as well as remedies when things go wrong.
• Non-discrimination: All forms of discrimination must be prohibited, prevented and eliminated. People who face the biggest barriers to realising their rights should be prioritised.
• Empowerment: Everyone should understand their rights, and be fully supported to take part in developing policy and practices which affect their lives.
• Legality: Approaches should be grounded in the legal rights that are set out in domestic and international laws. ^[21]

These values run throughout the vision and principles of the proposed Land Rights and Responsibilities Statement.

32. The Land Rights and Responsibilities Statement sets the direction of travel for public policy relating to land and nature of the relationship between the people of Scotland and the land of Scotland. It is the intention of the Scottish Government that, along with the other strategies and policies referred to earlier, the Land Rights and Responsibilities Statement should inform the practices of all those who own, manage and use land, in order to achieve culture change through the continued realisation of the vision and principles of the Statement.

Question 2:

a) Do you agree with the Scottish Government's proposed "human rights based approach" to the Land Rights and Responsibilities Statement?

Yes/No

b) Please give any further thoughts on the best way to ensure that the Statement is based on human rights or gives full consideration to human rights.