A Bill anent Wrongfully Enclosed Common Lands

Right, we've lost the referendum, we won't get independence. It's time to move on. 

As Lesley Riddoch pointed out before this whole campaign began, we can do a great deal to change Scotland for the better with the powers we already have. Up until now, the SNP government have been adopting bland and uncontroversial policies in order not to scare the horses in advance of the vote. I grudgingly accepted that was a reasonable policy - then.

It won't wash now. It's time to make maximal, radical use of our powers, to change Scotland, to redistribute power and wealth from the elite to the people. There are plenty of things we can do, but here is, it seems to me, one particularly low hanging fruit: wrongfully enclosed common lands. And so I present a draft bill. Feel free to improve upon it.

1: Wrongfully Enclosed Common Land

(i) A great deal of land in Scotland which was, historically, held as common, is now held as though it were private property.

(ii) Land is wrongfully enclosed common land if
(a) at some time in the past it was held as common;
(b) rights of common were extinguished without fully and adequately compensating all persons who had rights of common over that land.

(iii) Where it cannot be proven one way or the other whether all persons with rights of common were fully and adequately compensated, it shall be presumed that they were not.

2: Managing agent of Common Lands

(i) Where no other historical arrangements exist for the management of common lands, the managing agent of the common lands shall be
(a) The community council(s) in whose area(s) the lands occur, or
(b) where a community council does not exist, or declares itself unable, for whatever cause, to manage common lands, those lands shall be managed by a common lands factor appointed by the Scottish Government who shall take a management fee of at most [percentage] out of the proceeds and use the remainder for the common good of the people of that area.

(ii) Management of common lands shall be subject to the limitations that
(a) The managing agent may not sell any common land;
(b) The managing agent may not lease out any common land for a term exceeding [period: 20 years?];
(c) The managing agent  may not lease out any common land for a rental less than the fair rental determined by the District Valuer.

(iii) Rental, wayleaves, and other monies levied for use of common land shall be payable to the managing agent and be used by the managing agent for the common good of the people of the area.

3: Voluntary restoration of Common Lands

Where common land has been wrongfully enclosed, but that land has been restored as common land with management passed to the community council(s) in whose area(s) it occurs not later than the date on which this act comes into force, the provisions of sections 4 and 5 of this act shall not apply.

4: Arrangements for smaller holdings

Where greater than 10% of a holding of fewer than 250 hectares in extent is found to be wrongfully enclosed common land,

(i) if no beneficial holder(s) being natural persons can be identified - for example if the land is held by an offshore trust or by a company one or more of whose beneficial shareholders is such a trust - then that part of the holding found to be wrongfully enclosed common land shall be restored as common land, managed as set out in section 2 of this act,
(a) when this act comes into force, or
(b) immediately the land is found to be wrongfully enclosed common land
whichever is the later.
(ii) otherwise, a rent free lease of the wrongfully enclosed common land shall be granted to the natural persons who are beneficial holders
(a) when this act comes into force, or
(b) immediately the land is found to be wrongfully enclosed common land
whichever is the later.
for the period of their lifetimes, after which management shall pass to the managers set out in section 2 of this act.

5: General arrangements

(i) For areas of wrongfully enclosed common lands not covered by sections 3 or 4 of this act, a rental shall be levied at compound interest for the entire period during which such common lands have been wrongfully enclosed.
(ii) The rate of interest shall be 5%.
(iii) The district valuer shall assess a fair rent for the unimproved lands
(a) at the time of the wrongful enclosure and
(b) at twenty-five year intervals thereafter.
(iv) Of this rental
(a) 2.5% shall be payable to the district valuer to cover costs;
(b) 5% shall be payable to the person or agency bringing forward evidence that the lands have been wrongfully enclosed;
(c) The remainder shall be payable to the managing agent for the lands as defined in section 2 of this act.
(iv) This rental shall be payable by the current holder of the lands.
(iv) Management of the lands shall pass to the managing agent for the lands as defined in section 2 of this act
(a) when this act comes into force, or
(b) immediately the land is found to be wrongfully enclosed common land
whichever is the later.