Scottish Land, Environment, and the Written Constitution


By Mark McNaught
As part of our ongoing project to develop a written constitution worthy of ratification in an independent Scotland, I am beginning a series of articles to explain what is included in the present draft, and elicit comment and suggestions as to how it could be improved. 
In Scotland, the issue of land and the environment crucial not only to the quality of life to be enjoyed for this and future generations, but also to help forge a more egalitarian society.

The situation of Scotland is paradoxical. On the one hand, it is a global leader in renewable energy technology, has massive potential for tidal, wave, and wind power, and were it an independent country could harness the oil wealth to build a better society.

On the other hand, there is an immense imbalance in land ownership, with some 432 families owning over half the private land in Scotland. Crofters who have worked land for generations are unable to get title because it was given to some feudal aristocrat centuries ago. Much of the land was stolen by the ‘nobility’ from the Kirks after the 1560 reformation. Still in effect, the Act of Prescription of 1617 shields landowners from legal challenge to their ownership, so eminent domain cannot be applied.

Middle Eastern sheiks and other wealthy people own vast swaths of Scottish land, and have it registered in offshore havens to avoid paying taxes. The Scottish land registry has only about 20% of the land actually registered, and at the rate they’re progressing would not register all of the land in our lifetimes. To give the Scottish Land Registry the necessary constitutional tools to register and tax land for the benefit of all, the following section was included in Article XI – Land, territorial waters, and the environment.   

Section 2: The totality of the territory, buildings, and other goods within its land and territorial waters requiring legal title in Scotland shall be registered and taxed exclusively with the Scottish government. Complete transparency on ownership is required for the bearer to register and maintain title. Land and goods for which legal title cannot be legitimately established shall revert to public ownership.

This section will help insure that Scotland receives maximum tax revenues from all its land, and will give an independent Scottish government the constitutional tools necessary to finish what the Land Registration (Scotland) Act 1979 set out: to develop a detailed register of who owns exactly what in Scotland. The ability of the Registry of Scotland to rapidly complete the registry will be greatly enhanced, because the landowners will lose possession if they do not register the land and pay taxes on it. 

Another constitutional tool given to the Scottish government to better manage land resources is eminent domain, or the capacity to acquire land whether the owner wants to sell or not. However, this power must be used properly and transparently, and conducted uniquely by the state.

Section 3: All use of eminent domain in the acquisition of land and property must be transparent and demonstrably in the public interest, conducted uniquely by the state through due process, with just and timely compensation for expropriated property.

This may seem obvious, but in several US states eminent domain to build the Keystone pipeline has been outsourced to TransCanada, a Canadian tar sands oil company. In an independent Scotland, foreign multinationals or other private interests must never have such an awesome power over Scottish land.

Preventing the corruption of the regulatory process is another issue which requires effective constitutional tools. There must be a strong, incorruptible agency which can properly regulate the allocation of land, and also verify that farm subsidies are going to actual farmers, rather than wealthy aristocrats who don’t need it. It must also ban junk science from affecting environmental decisions.

Section 4: An environment and land management agency shall be established. Its powers, shall include, but not be limited to, maintaining the title registry of land, assuring that EU and other subsidies are directed towards the correct recipients, and rigidly enforcing regulation based on peer reviewed science. Sufficient resources shall be furnished by the Scottish government to enforce these and other measures, and law shall provide for the shielding of regulators from the influence of the entities they regulate.

In the US, and perhaps coming to Scotland, fracking is a perfect example of a poisonous and lethal form of energy extraction which has escaped regulation, and should never be permitted. In the Energy Policy Act of 2005, then Vice President and former president of Halliburton Dick Cheney slipped in a provision which shielded fracking from the Clean Air Act and the Clean Water Act. Coincidentally, Halliburton manufactures fracking equipment and chemicals for which they do not have to reveal the poisonous ingredients. The following is included in the draft to prevent such patent corruption in an independent Scotland.

Section 5: All chemicals, devices, and techniques used in all industry and energy extraction shall be declared and regulated. Chemicals deemed too toxic to be used through peer-reviewed scientific methods shall be banned. All ingredients in all foods and drinks, including all those which are genetically modified, shall be clearly labelled on the package.

Scots should also be aware of all ingredients in the food that they eat. A constitutional mandate that all food be labeled with the totality of their ingredients will allow Scots to begin to come to grips with a dietary crisis in which they have one of the highest rates of coronary heart disease in the West. You can be sure Monsanto will not be happy about it, but it is not for them to decide. Scots’ lives are more important.

A written constitution is not a panacea for all problems, but so many problems can only be dealt with when there are the constitutional tools to do so.  To draw on your collective wisdom, please offer any suggestions or changes to the wording that would make these clauses more effective in the comments section.