The Scottish Government’s consultation on the law of succession closes today. The Herald called the proposed reforms an ‘explosive idea’ which has the capacity to ‘make all children equal’ and lead to the break-up of large land holdings in Scotland
In the aftermath of Scotland’s referendum on independence in September 2014 it came as no surprise to find that land reform was a key part of Nicola Sturgeon’s new legislative programme (and her first as First Minister) for the remainder of the Scottish Parliament’s term. There has been growing pressure for land reform over the last decade thanks to the success of land campaigners such as Andy Wightman in bringing the issue to the attention of the public. The assertions that ‘Scotland has the most concentrated pattern of private land ownership in the developed world’ and that ’a mere 432 landowners account for half of all Scotland’s privately owned land’ have attracted the attention of journalists and opinion makers across Scotland which in turn has led to criticism of government inaction on the issue. A confident Scottish National Party, intent on delivering progressive policies as the party of government, grasped this particular nettle and put it front and centre of its legislative programme.
More surprising was the inclusion of succession law in that programme. It is not a burning issue, as evidenced by the languishing of Discussion Papers and Reports by the Scottish Law Commission (‘SLC’) in the government’s bottom drawer. The Scottish Government makes clear that this radical overhaul of succession law is wrapped up in the Land Reform Bill ‘so that all children are treated equally when it comes to inheriting land’.
Succession is a significant issue for land reform because of the way in which the current law of succession is structured, namely the fact that “legal rights” (the existing protection of spouse or civil partner and children against disinheritance) cannot be claimed on heritable or immoveable property, namely land and buildings. This is the mischief that the government seeks to address by reforming succession law.
Section 6 of the Land Reform Review Group (“LRRG”) final report is devoted to succession law. The exclusion of heritable property from the legal rights regime is deemed to be outdated and to represent the last vestiges of Scotland’s feudal system. The report traces the history of succession law reform and the repeated (and successful) efforts of “agricultural and landed interests” to prevent legal rights from applying to heritable property. It recommends that the distinction between different types of property be abolished as “a straightforward matter of social justice based on the current disadvantaged position of spouses and children”.
The connection between land reform and succession reform is highly significant in this reform process – land campaigners have understood that succession law can help them to achieve their aims and have been successful at elevating it onto the political agenda:
“the law of succession in Scotland is the single greatest reason the pattern of private landownership remains so concentrated compared with the rest of Europe” (A Wightman, The Poor had No Lawyers (2nd edn, 2015)
However, what is not explained (or perhaps understood) when the case is made for an extension of legal rights to all of a husband’s or parent’s property is that this may be a pyrrhic victory. The victory is that children “would have the right to have land – potentially very large tracts of land – factored into their legal rights” . This is indeed the case – in theory. However, taken together with the whole package of reform proposals this change will lead to unintended consequences (unintended at least by the land campaigners): if a parent is married at the time of death almost all Scottish children will inherit nothing, whether by the law of intestacy or a claim for legal share. And yet the Scottish public is by and large blissfully unaware that inheritance rights are being removed.
The Scottish Government’s stated justification for the amalgamation of heritable and moveable property in succession is grounded in justice, equality and meeting the public’s expectations of succession law: to ensure “a just distribution of assets among a deceased’s close family to reflect both societal change and expectations.” (One Scotland: the government’s programme for Scotland 2014-15 (2014), at para 11)
However, the proposed package of reforms is unlikely to meet those objectives: the transfer of the whole estate in almost all cases to the current spouse or civil partner does not reflect what we know about societal expectations; nor do the proposals reflect societal change. Furthermore, if the ultimate legislation is fundamentally at odds with the expectations of the public, it is likely to create anger and conflict in families experiencing bereavement.
The SLC (and the government) have both regularly pronounced the current law of succession to be out of step with modern complex families: and yet these proposals do almost nothing to modernise succession in a social sense (e.g. in the proposals cohabitants and stepchildren remain extraneous to the core “family” for succession purposes; civil partners are already equated with married partners in the existing law). The recasting of succession is not a social one, but a philosophical one that prioritises freedom and the vertical relationship of the couple over the horizontal one of kinship: the starting point is a picture of the deceased as a free individual, untrammelled by any obligations (legal or moral) to children or the wider kinship network. And yet, research suggests that while most people value individualism and freedom of choice, for parents an even higher value is placed on their relationship with their children, whether young or old. That kin relationship may assume even greater importance in reconstituted families in the aftermath of a marriage or civil partnership which has failed.
One consequence of an individualist view of the family is that it changes the focus from a vertical and intergenerational view of family to a horizontal one, giving primacy to the conjugal relationship as a relationship chosen by equal partners for their personal fulfilment. This is arguably the path that succession law is on, although the underlying ideology is rarely examined. The prioritisation of spouse over children represents a trend towards “… the increasing separation of marriage and parenthood, which constitutes a more profound shift than the 1960s separation of sex and marriage” (J Lewis, “The Changing Context for the Obligation to Care and to Earn” (2005)).
If this has whetted your appetite for more – the influence of the Scottish legal profession, the impact of the housing market and some bad statistics – my consultation response is here.