Briefing Note
Scottish Land Reform Bill To Affect
Landowning Charities
The Land Reform (Scotland) Bill, introduced into the Scottish Parliament on 22nd June 2015, contains
a wide duty of community engagement which could have an impact on all charities owning land in
Scotland.
Clause 37 of the Bill provides that the Scottish Ministers must issue guidance on engaging
communities in decisions relating to land where those decisions may have an effect on communities.
The types of decision affected are decisions to sell or otherwise dispose of land, and decisions to
change how land is used or managed – a potentially far-reaching range of situations.
When issuing their guidance, the Scottish Ministers are to have particular regard to “furthering the
achievement of sustainable development”. The guidance will be intended to encourage “better
collaboration and engagement between landowners and communities” and, before issuing their
guidance, the Scottish Ministers will be placed under a duty to consult with such persons as they
consider appropriate.
The Scottish Government’s policy memorandum accompanying the Bill makes it clear that the Clause
37 provisions are intended to cover all landowners and not just charities, although an earlier Land
Reform Consultation proposal was targeted at charities alone.
While the Bill will require the Scottish Government to issue guidance which is applicable to all
landowners, any such guidance is intended to be applied by the Office of the Scottish Charity
Regulator (OSCR) in carrying out its charity sector regulatory functions. OSCR would be under a duty
to consider whether the charity engaged “appropriately” with the relevant community when taking
decisions about land. If a charity did not in OSCR’s opinion “engage appropriately”, OSCR would then
have to consider whether misconduct had been committed by the charity trustees. Misconduct can
lead to the disqualification of charity trustees and to criminal sanctions in serious cases. For crossborder charities, the sanctions available can include a report to the Charity Commission for England
& Wales under the Memorandum of Understanding which exists between the two regulators.
If any Scottish Government guidance is not followed by landowners, then this could also be used as
evidence to support an application under the rules on the community right to buy, and it is clear that
larger land owning charities are intended as the main targets.
The Scottish Government’s stated policy objective to introduce guidance which OSCR must have
regard to, and which will have a bearing on charity trustees’ legal duties, keeps community
engagement firmly on the charity sector’s agenda. Charities which own land in Scotland need to
maintain a watching brief on how these proposed law reforms develop.
Gavin McEwan is a Partner and Deputy Head of the Charities Legal Team at Turcan Connell
http://www.turcanconnell.com/charities
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