“Listing the provisions which the new Act contains highlights its potential for a transformation both in the way that communities take part in the decision making processes of government, particularly at local level, and in community ownership of a wide range of land holdings and public assets. “
Mark Lazarowitz Advocate former MP for Edinburgh North and Leith
Community Empowerment (Scotland) Act 2015 – how radical will its consequences be?
On 24 July 2015, the Community Empowerment (Scotland) Act finally became law when it received the Royal Assent. It is an item of legislation by the Scottish Parliament which has the potential to bring about wide-ranging changes to the ownership of land, public assets, and the way in which decisions are made by public authorities. Along the way, it could also revolutionise Scottish football and give a new lease of life to allotments and to the healthy food movement.
Will it do all that? That will depend on the way in which government, both local and central, choose to implement the legislation, and whether or not local communities choose or take up the opportunities it offers.
The new Act has twelve Parts. These can conveniently be considered in three groups.
Parts 1, 2, 3, 8, 10 set out a range of measures which give communities a right to be involved in various types of decision making at local or Scottish level;
Parts 4, 5, 7 set out various measures to facilitate communities in acquiring land and certain other assets;
Parts 6 and 9 also include some provisions which have a limited implication for community participation. Part 11 of the Act has no direct bearing on community participation, and Part 12 deals with general matters.
Community involvement in decision making
The right to be involved in decision-making could certainly have a major impact on the way that decisions are made by central and local government. Part 1 places a duty on Scottish Ministers to develop, consult on, and publish a set of ‘national outcomes’ for Scotland. Those who must be consulted include ‘such persons who appear to them to represent the interests of communities in Scotland’ in drawing up and reviewing the ‘national outcomes.’ This is accompanied by the provisions in Part 2 which require local authorities and a wide range of other public bodies to participate both with each other and also with ‘community bodies’ in carrying out ‘community planning’ – which is aimed at improving the outcomes from service provision (and which should be consistent with the ‘national outcomes’).
Part 3 gives ‘community participation bodies’ a right to request a ‘public service authority’ to participate in an ‘outcome improvement process’. Part 8, dealing with the ‘Common Good’ property of local councils, as well as requiring these authorities to establish a register of such property, also requires them to consult with local community bodies if they are considering the disposal of common good property. Part 10 gives a general power to Scottish Ministers to make regulations to promote or facilitate participation in the decision-making of any part of the Scottish Administration or a Scottish public authority.
It can readily be seen that these parts of the Act could have a dramatic effect on the decision making process of the Scottish public sector, and the extent to which local community organisations participate in that process.
Extending the community right to buy land
However, the parts of the Act which give local communities the power to acquire land and other property could be even more far-reaching in their consequences. Part 4 of the Act extends the community right to buy land, originally restricted to rural communities, throughout Scotland, including urban land. This means that, with certain exceptions, community bodies can require land which its owner intends to sell be transferred to the community (at market value). This part of the Act also make a number of important changes to the procedures whereby this process takes place, particularly in extending the range of community bodies to which it applies.
The community right to buy can only be exercised when an owner takes steps to sell an area of land. However, the Act also introduces provisions which allow communities in certain cases to acquire land even if the owner does not wish or intend to sell that land. Section 74 of the Act provides that a community body can apply to the Scottish Ministers for their agreement to the purchase of land which is ‘wholly or mainly abandoned or neglected’ or in which ‘the use or management of the land is such that it results in or causes harm, directly or indirectly, to the environmental wellbeing of a relevant community.’ The community body must show how its proposals for the land in question are in the public interest, and ‘compatible with furthering the achievement of sustainable development in relation to the land’. The Scottish Ministers must consider various factors, including the views of the owner of the land, but can ultimately authorise the transfer of the land, at market value, to the community body concerned, without the consent of the owner.
Transferring public assets to communities
The proposals to extend the community right to buy land set out in Part 4 have attracted widespread interest and comment. But this is not the only part of the Act which gives communities powerful new rights to acquire land and property. Part 5 of the Act sets out how a ‘community transfer body’ can make a request to buy, lease, manage, or occupy land or buildings belonging to a wide range of Scottish public authorities, including local authorities, Health Boards, and many more. Various criteria apply to such requests, including a requirement for the community body to set out its reasons and the community benefit for such a transfer. There are provisions setting out the factors that the public authority must take into account in considering such a request, and an appeal process if the authority refuses such a request. However, the authority is obliged to agree to the request unless there are reasonable grounds for refusing it. Furthermore, the Scottish Ministers, in dealing with an appeal, can overrule a decision by a public authority to refuse the asset transfer request, and to allow the transfer to go ahead.
A community transfer body in making an application is required to set out the price it would be prepared to pay for the transfer of the ownership of the land. However, unlike the provisions allowing a community right to buy land in Part 4 of the Act, the Act does not specify that a transfer under the asset transfer provisions in Part 5 would require an acquiring community body to pay the market price (although no doubt this is a factor which the relevant public authority would be entitled to take into account in deciding whether it was reasonable to accept or reject the request).
It can readily be seen that Part 5 also has potentially wide-ranging consequences. In principle, it gives community bodies the ability to acquire schools, housing, swimming pools, parks, hospitals, and anything else currently owned by a public authority. Whether or not that will actually happen will depend on the attitude of public authorities, and Scottish government, towards requests for transfer of public assets, and on community bodies coming with forward with eligible proposals for transfer.
Football clubs and allotments
The Act also contains another set of provisions which could result in the community acquisition of assets. Part 7 gives Scottish Ministers the power to make regulations to promote supporter involvement in the running of football clubs, and this specifically includes the power to facilitate the supporter ownership of clubs.
There are also some limited implications for community participation in two other parts of the Act. Part 6 of the Act extends the definition of the community body which can take on certain functions under the Forestry Act 1967. Part 9 is concerned with a large number of matters concerning allotments. These include section 123 which allows local authorities to delegate management of allotment sites, which presumably is most likely to be to a group representing the relevant allotment holders; and section 119 places a duty on local authorities to prepare a food-growing strategy for its area, which includes not just the identification of allotment sites but also the identification of other areas of land in its area ‘that could be used by a community for the cultivation of vegetables, fruit, herbs or flowers.’
Part 11 allows local authorities to introduce schemes for the reduction and remission of non-domestic rates. This part has no specific implications for community participation or ownership (although it would presumably allow them to give concessions to any group or business which did not already benefit from other reliefs). Part 12 contains the normal provisions relating to the details of guidance, subordinate legislation, ancillary provision, commencement and other matters.
Listing the provisions which the new Act contains highlights its potential for a transformation both in the way that communities take part in the decision making processes of government, particularly at local level, and in community ownership of a wide range of land holdings and public assets. Whether or not it will have those consequences will depend on a number of factors:
– The degree of enthusiasm with which local and central government will promote and facilitate the use of the measures contained in the Act, and their ability to commit what could be considerable staff and other resources to make the community participation processes work successfully;
– The extent to which local community bodies will seek to use the new powers with which they have now been potentially endowed;
– The financial resources which community groups will be able to access to put forward meaningful bids to acquire land and assets;
– The extent to which community groups will be able to draw upon specialist expertise to assist them in procedures which in some cases could be complex and lengthy. (It should be noted that the Scottish Government has recognised these difficulties through increasing its support for bodies that can provide grants and specialist advice for community groups that wish to acquire land or other property).
It should be noted that the provisions in the Act will only come into force when the relevant commencement order is made for the particular part or section in question. The Scottish Government has indicated that it expects most parts of the Act to come into force by the summer of 2016.
Finally, mention should be made of fact that there is other legislation coming down the road which, if passed, will extend the community right to buy still further. The Land Reform (Scotland) Bill, introduced in the Scottish Parliament on 22 June 2015, includes rights for community bodies to acquire land, if necessary by compulsory purchase, ‘to further sustainable development’.
From McNeill and Stone
Mark Lazarowicz is an Advocate. He was Member of Parliament for Edinburgh North & Leith