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Rights Toproperty, Rights to Buy, and Land Law Reform

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Rights Toproperty, Rights to Buy, and Land Law Reform RIGHTS TO PROPERTY, RIGHTS TO BUY, AND LAND LAW REFORM: APPLYING ARTICLE 1 OF THE FIRST PROTOCOL TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS DOUGLAS STEWART KEITH MAXWELL EMMANUEL COLLEGE, CAMBRIDGE THIS DISSERTATION IS SUBMITTED TO THE UNIVERSITY OF CAMBRIDGE FOR THE DEGREE OF DOCTOR OF PHILOSOPHY JULY 2018 ABSTRACT RIGHT TO PROPERTY, RIGHTS TO BUY, AND LAND LAW REFORM This dissertation examines the application and effect of Article 1 of the First Protocol to the ECHR in relation to Scots land law reform. Chapter one will reflect on why existing rights to property have come to be challenged. Chapter two sets out the human rights paradigm and scrutinises what rights and whose rights are engaged. Chapter three traces the development of A1P1. Chapter four applies the human rights paradigm to contemporary reforms. Chapter five considers the broader effect A1P1 has had on domestic property law. This dissertation submits that the problem to be overcome is that, in many instances, Scots land law reform has been reduced into a simplistic struggle. A1P1 has been held up as either a citadel protecting landowners or as an ineffective and unjustified right to be ignored. At the core of this debate are competing claims between liberal individualist rights to property and socially democratic, egalitarian goals. This dissertation argues that it is important to move beyond this binary debate. This is not about finding some mysterious “red card” or eureka moment that conclusively shows compatibility or incompatibility. Instead, compatibility will be determined by following a rule-based approach that values rational decision-making and the best available evidence, as well as the importance of democratic institutions. As such, it will be illustrated how future challenges are likely to focus not on the underlying purpose of land law reform but on the macro or micro granularity of Ministerial discretion. In coming to this conclusion, it will be argued that A1P1 has a pervasive influence on the entire workings of all public bodies and, like a dye, permeates the legislative process. DOUGLAS S K MAXWELL EMMANUEL COLLEGE, CAMBRIDGE JULY 2018 Rights to Property, Rights to Buy, and Land Law Reform 2 DECLARATIONS This thesis is submitted according to the requirements of the Degree Committee. It does not exceed the regulation length of 80,000 words including footnotes, references and appendices. It is the result of my own work and includes nothing which is the outcome of work done in collaboration with others, except where specifically indicated in the text and Acknowledgements. The thesis uses the OSCOLA citation system (Oxford Standard for Citation of Legal Authorities). Douglas S K Maxwell (79,935 words, excluding bibliography) Douglas S K Maxwell 3 ACKNOWLEDGEMENTS I would like to thank my supervisor, Dr Emma Lees, for her guidance, encouragement, and patience throughout my doctorate. Dr Lees has been very generous with her time and advice. I am grateful to Lord Minginish (Roderick John MacLeod QC) and Professor Tom Allen for their detailed comments on earlier drafts of this thesis. This thesis has also benefited from the help and advice of Professor Kevin Gray, Ms Amy Goymour, Professor Simon Cooper and Professor John Lovett. I would also like to thank the staff of the Squire Law library in Cambridge, the Emmanuel College library, the AK Bell Library in Perth, and the WS Society library in Edinburgh (particularly the WS Society Principal Researcher James Hamilton), for their assistance over the past three years. I have also been aided by the experiences gained with Sir Crispin Agnew Bt. QC and David Elvin QC who have both generously offered their time to discuss the interplay between public law and land law. I am grateful for the financial support I have received during my doctoral research in the form of a Doctoral Scholarship from the University of Cambridge. I also wish to thank Emmanuel College for providing several bursaries and grants of financial assistance that have allow me to attend conferences in the Netherlands, Northern Ireland, Scotland and the United States of America. I am particularly thankful to Dr Jasmine Jagger for her support, patience, and proof reading. I owe the greatest debt to my mother and father for encouraging me. I am greatly appreciative of the constant support that they, and the rest of my family, have given me over the past three years. Rights to Property, Rights to Buy, and Land Law Reform 4 ABBREVIATIONS Name Abbreviation Agricultural Holdings (Scotland) Act 2003 AH(S)A 2003 Agricultural Holdings Law Review Group AHLRG Agricultural tenants right to buy ARtB Agricultural tenants right to buy where landlord is in breach ARtBB Article 1 of the First Protocol A1P1 Community Empowerment (Scotland) Act 2015 CE(S)A 2015 Community right to buy CRtB Convention on the Elimination of All Forms of Discrimination Against Women CEDAW Crofters (Scotland) Act 1993 C(S)A 1993 European Convention on Human Rights ECHR European Court of Human Rights ECtHR Human Rights Act 1998 HRA International Covenant on Economic, Social and Cultural Rights ICESCR Land Reform (Scotland) Act 2003 LR(S)A 2003 Land Reform (Scotland) Act 2016 LR(S)A 2016 Land Reform Policy Group LRPG Land Reform Review Group LRRG Right to buy abandoned and neglected land RtBAN Right to buy for sustainable development RtBSD Scotland Act 1998 SA 1998 Scottish Land Commission Commission/SLC Scottish Land Rights and Responsibilities Statement SLRRS Travaux préparatoires TP United Nations Sustainable Development Goals SDGs United Nations Voluntary Guidelines on the Responsible Governance of Tenure VGGTs Vienna Convention on the Law of Treaties VCLT Scottish Parliament Committee Name Abbreviation Environment and Rural Development ERD Environment, Climate Change and Land Reform ECCLR Local Government and Regeneration LGR Rural Affairs, Climate Change and Environment RACCE Justice J Douglas S K Maxwell 5 1 TABLE OF CONTENTS DECLARATIONS ........................................................................................................................................... 2 ACKNOWLEDGEMENTS ............................................................................................................................. 4 1. INTRODUCTION..................................................................................................... 10 1.1 OVERVIEW ............................................................................................................................................................. 10 1.2 STRUCTURE AND AIMS.................................................................................................................................... 12 1.2.1 CHAPTER ONE ............................................................................................................................................... 12 1.2.2 CHAPTER TWO ............................................................................................................................................... 12 1.2.3 CHAPTER THREE .......................................................................................................................................... 12 1.2.4 CHAPTER FOUR ............................................................................................................................................. 13 1.2.5 CHAPTER FIVE ............................................................................................................................................... 13 1.3 SIGNIFICANCE OF THIS THESIS ................................................................................................................. 14 1.3.1 PREVIOUS APPROACHES .......................................................................................................................... 16 1.4 DEFINITIONS ....................................................................................................................................................... 18 1.4.1 LAND REFORM ............................................................................................................................................... 19 1.4.2 PROPERTY ........................................................................................................................................................ 20 1.4.3 PROPERTY RIGHTS AND THE RIGHT TO PROPERTY ................................................................ 21 1.4.4 HUMAN RIGHTS AND PROPERTY ........................................................................................................ 23 1.4.5 MICRO AND MACRO GRANULARITY .................................................................................................. 24 1.5 RELEVANT NON-CONVENTION RIGHTS .............................................................................................. 24 1.6 COMPARATIVE PERSPECTIVES ................................................................................................................... 25 1.7 CASE LAW ............................................................................................................................................................... 25 1.7.1 Pairc Crofters Ltd v Scottish Ministers [2012] CSIH 96; 2013 SLT 308 .................................................................. 26 1.7.2 Salvesen v Riddell [2013] UKSC 22; 2013 SC (UKSC) 236 ................................................................................... 26 1.7.3 McMaster v Scottish Ministers [2017] CSOH 46, 2017 SLT 586 ...........................................................................
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