Scottish Legal News can reveal that the the Duke of Buccleuch’s proposed annual £10 charge, to be levied on walkers and joggers accessing his Dalkeith Country Park at certain times from March 21, may be illegal.
Midlothian Council said the move was believed to be lawful under the Land Reform Act (Scotland) 2003, which provides that a landowner can charge if they did so for 90 days per year before the act came into force.
However, it may be that the estate only has authority to charge for access over the Midlothian section of the estate, where there was a subsisting charge, and not the East Lothian section.
Dr Jill Robbie, lecturer in private law at the University of Glasgow, told Scottish Legal News that if gates at one side of the park had always been open to the public without charge then the subsection would not be satisfied – meaning the estate could not lawfully charge people to enter the park from any entrance.
-Under s.6(1)(f) of the Land Reform (Scotland) Act 2003, land excluded from access rights includes land to which members of the public were admitted only on payment for not fewer than 90 days in the year ending on 31st January 2001 and, after that date, to which members of the public were admitted only on payment for not fewer than 90 days in each subsequent year beginning 1st February 2001, she said.
-If, historically, the gates to one side of the Dalkeith Country Park were left open and members of the public were allowed to enter without incurring a charge, this would suggest that the requirements of s.6(1)(f) have not been met.
-In these circumstances, the park would not be land excluded from access rights for the purposes of the Land Reform (Scotland) Act 2003 under this particular section.
Adding to the uncertainty of imposing a charge, a source who was present at meetings involving East Lothian Council outdoor access officers and the estate manager told Scottish Legal News that the estate manager admitted a charge in the East Lothian section may not be enforceable and that, if pushed, he would construct a barrier between the East Lothian and Midlothian sections of the estate.
However, a spokesman for Buccleuch set out the reasons for the charge and the justification for levying it by citing exactly the same provision as Dr Robbie.
He said: “There is a long and continuing history of significant vandalism and illegal behaviour within Dalkeith Country Park, and under the terms of the 2003 Land Reform Act the only way we are able to close the gates and ask irresponsible visitors to leave is through continuing to levy a nominal access charge – something the park has done for many years. This will not restrict access to responsible visitors and the charges in place are exactly the same as in previous years.
“Anyone with an annual pass card will continue to be able to enter the park day or night, year round. An annual adult card, for example, costs £10, or less than 3 pence per day. More than 200 cards have been sold already, demonstrating widespread local support.
“It is not the case that the imposition of a charge would be unlawful. The Dalkeith Country Park is a single entity, which lies across Midlothian and East Lothian. It has a number of access points.”
Citing s.6(1)(f) LR(S)A 2003 he added: “The subsection applies to Dalkeith Country Park. Accordingly, it follows that the owners of the land are entitled to impose a charge for access.”
Revealed: The Duke of Buccleuch and the offshore haven
MARCH 15TH, 2016 – 12:37 AM MICHAEL GRAY
THE Buccleuch family, owners of more than 240,000 acres of private land, use a shadowy Cayman Islands firm to control and sell land, it has emerged.
The aristocratic estate run by Richard Scott, the 10th Duke of Buccleuch, confirmed that an offshore ownership group, Pentland Limited, acts as an offshore contact to the family’s vast land business empire.
The use of the Cayman Islands tax haven, revealed following research by land reform campaigner Andy Wightman, has reignited calls for greater action on the use of complex legal mechanisms to obscure the ownership of Scotland’s land.
Scott, inheritor of the Buccleuch dynasty of 1663, is a director of Pentland, which has a variety of shared financial transactions with firms within the Buccleuch group, where Scott is also a director.
Buccleuch lawyers Anderson Strathern confirmed to the Registers of Scotland that one such transaction was the ownership then sale of half a stake in Smeaton Farm (part of Dalkeith Country Park) from Pentland to Buccleuch Estate.
Pentland also owns land near Canonbie, in Dumfries and Galloway, and signed loans worth millions of pounds in total to various Buccleuch subsidiary companies.
Wightman, who compiled the research, said: “Transparency is one of the key issues for a world of global capital in which the wealthiest one per cent are not only getting wealthier but are able to conceal their affairs through the use of secrecy jurisdictions.
“Since working on the Sunday Times Rich List 20 years ago and since the advent of the Scottish Parliament in 1999, the UK and Scottish Governments are only now beginning to appreciate the potential scale and impact of secrecy in how land and property is owned.
“What I and others have been campaigning for over the past 20 years is quite simple – full, transparent and accessible information on who really owns Scotland. What we have uncovered today is probably just the tip of the iceberg and it will be a key challenge for the next Scottish Parliament to ensure complete transparency on these matters and ensure that there are no longer any secrets about who owns Scotland.”
A spokesman for the Duke’s estate confirmed Pentland Limited was a Buccleuch venture with interests in Scottish land. “Pentland Limited is a Cayman Islands incorporated vehicle which is wholly owned by The Buccleuch Estates Limited which is UK registered,” he said. “The company has always been wholly owned by Buccleuch and members of the Buccleuch family, all of whom are UK resident taxpayers. All profits arising in Pentland Limited are subject to UK corporation tax.
“Pentland Limited has historically owned land in the UK and currently owns an area of land near Canonbie in Dumfries and Galloway.”
The Duke, whose five estates cover an acreage larger than any other landowner in the UK, has been a consistent opponent of land reform and has been implicated in numerous community disputes in recent years.
Last week the inherited estate announced plans to block access to Dalkeith Country Park at night unless walkers and cyclists paid for access. Buccleuch also faced a community backlash in Canonbie over plans for coal bed methane extraction.
Buccleuch, one of the old aristocratic families that grew to dominate rural Scotland through historic land grabs, said he was ‘deeply dismayed’ that the land reform debate had been ‘re-opened’ in the past few years.
Rob Gibson MSP, convener of the Rural Affairs, Climate Change and Environment (RACCE) committee that led scrutiny of the Land Reform Bill, said the new evidence demonstrated the need to use the Land Reform Bill to ensure future ownership transparency.
“This adds to the fact that what the government is proposing is going to expose this kind of thing,” he said. “What for? You need to know who owns land to hold them to account and to tax them. That’s why completing the land register is vital.”
Yesterday the RACCE committee published its legacy report for 2011-16, which signalled land reform efforts would continue through establishing a Land Commission.
Gibson added that “the next committee will have a big job to do” to ensure that land ownership is transparent and any ongoing tax avoidance is identified.
The scale of offshore ownership of land is estimated to equal 750,000 acres. As the national land register is incomplete, Scottish Government officials have been unable to confirm the scale of the tax haven problem.
In January chief police investigators warned complex offshore ownership structures also created a bureaucratic nightmare for enforcing the law, specifically in relation to prosecuting the wildlife crime that took place on the Kildrummy estate. The police found it impossible to identify a legal owner of the land – held offshore in Jersey – despite three years of effort and ‘significant international investigations’.
Nine months of negotiation between MSPs, campaigners and the government aimed to strengthen the Bill to ensure the greatest transparency for Scottish land registered in places like Cayman, the British Virgin Isles and Jersey. On Wednesday the Scottish Parliament will hear amendments to the bill from Patrick Harvie MSP, including proposals to tighten regulation on land owned in British overseas territories.
Nicky MacCrimmon, who led land reform campaigners to victory at the 2015 SNP conference, called for the government to end tax haven ownership by rich landowners. He said: “It is not just a question of tax revenue or potential money laundering. It goes to the heart of democracy by saying we demand transparency and accountability from the people who own and exploit our natural resources.
“The [land reform] movement seems to be getting stronger all the time both within political parties and outwith them. It is becoming mainstream to believe in land reform; ordinary people are having conversations in pubs and online forums about land value tax. The next big leap for me to take the debate forward will be to really begin to highlight the problems caused by our land use and ownership in urban settings.”
The greatest opposition to land reform has come from the lobbyists for big landowners and their legal representatives. Legal firm Brodies warned the Scottish Government that land reform action could lead to a court challenge and high compensation claims from landowners.
Socialist coalition Rise has called for Scotland’s aristocracy to be confronted through ‘a campaign of protest’.
The ownership of land in Scotland has also caught the attention of tax justice campaigners, who oppose the web of ‘secrecy jurisdictions’ where an estimated $7.6 billion of global wealth is stored offshore.
Alex Cobham, director of research with the Tax Justice Network, said: “There’s no good reason not to know who you’re doing business with, so any time you come across such complex and opaque ownership arrangements, you have to ask what the reason is. The irony here is that it relates to the ownership of the most tangible assets imaginable: the land itself of this country.
“The UK Government has played an important role in the fight against anonymous company ownership, but there’s a very long way to go – and it starts with addressing the biggest global financial secrecy network, which is of course made up of the UK’s own Overseas Territories and Crown Dependencies. When David Cameron hosts his international anti-corruption summit in May, the item at the top of the agenda must be to require every one of these jurisdictions to commit to public registries of the beneficial ownership of companies, trusts and foundations.
“The Scottish Government, meanwhile, can take its own steps to ensure that no land is owned without public record of the ultimate beneficial ownership – regardless of which jurisdiction or structure is used.”
The Cayman Islands, where Buccleuch’s Pentland Limited firm is based, were condemned by President Barack Obama for undermining global tax rules.
Cayman, a British Overseas Territory, has no direct taxation and is used by many of the world’s largest corporations to avoid tax. One Cayman building, Ugland house, is the registered address of nearly 20,000 global firms.
When asked who could shut down the tax avoidance industry on the island, Cayman premier Alden McLaughlin said: “Ultimately the UK can, because they have the overriding responsibility.”
Further controversy over business activity in tax havens coincides with the release of a new report from charity Oxfam titled Ending the Era of Tax Havens.
Mark Goldring, Oxfam chief executive, said: “It’s time the government ended the secrecy that allows tax dodgers to get away without paying their fair share, robbing the UK – and poor countries – of vital revenue that could help fund public services and provide a strong safety net for the most vulnerable.”
This report is in collaboration with Common Space: visit CommonSpace.scot
Andy Wightman: On the trail of Pentland Ltd
The National View: Transparency about ownership is vital to our land reform
Hitler’s aristocratic admirers
LORD DARLINGTON was adamant. The two young German maids would have to go. Miss Kenton, the housekeeper, was close to tears as she explained that they would have to return to Germany, a terrible risk considering both were Jewish.
By PAUL CALLAN PUBLISHED: 00:00, Sat, Sep 12, 2009
But his lordship remained unmoved. He believed in appeasement towards Nazi Germany and the employment of Jewish people was ‘inappropriate’.
Although fictional, there is a bitter ring of truth about this scene – featuring James Fox and Emma Thompson – from the 1993 film The Remains Of The Day, based on Kazuo Ishiguro’s novel.
The Lord Darlington figure was typical of a formidable group of British peers who were attracted by Hitler and supported efforts to keep the dictator placated. A new book, Aristocrats by Lawrence James, includes material on such ardently Right-wing and anti-Semitic aristocrats and how their vile attitudes brought considerable satisfaction to Hitler.
What lay behind their support of appeasement was a fear of Communism . ‘What emerges,’ writes James, ‘is a picture of a knot of peers adrift in an uncongenial world, united by paranoia, pessimism and panic.’
‘A knot of peers were united by utter paranoia. One duke went to the Fuhrer’s birthday party. Lord Brocket fawned over visiting Nazis.’
They all saw an immensely powerful union between Communism and the Jewish people as a world conspiracy that could be thwarted only by Fascism.
Both Hitler and his strutting Italian cohort Mussolini offered these bewildered aristocrats a safe world that would be secure from any Communist takeover. It also confirmed their long-held private prejudice.
Explains James: ‘[Visceral] anti-Semitism permeated the upper classes between the wars. Jews were vilified as flashy and pushy arrivistes with a knack of enriching themselves when the aristocracy was grumbling about an often exaggerated downturn in their fortunes.’
What made such hatred additionally odious was the fact these peers continued to air their views long after Hitler’s persecution of Germany’s Jewish population had become widely known.
Prominent among such peers was Lord Brocket who joined various anti-Semitic organisations. He fawned over visiting Nazi officials whom he invited to his home and even attended the celebrations for Hitler’s 50th birthday.
Brocket, said to be ‘a fundamentally nice but stupid man’ even deluded himself that he was a valuable link between Hitler and Britain’s leaders. It was suggested that he lit fires on his Hertfordshire estates to guide German bombers on their way to London.
Another pro-Nazi peer was Lord Redesdale . His daughters, who became famous as the literary Mitford sisters, included Unity who went to Germany and stalked Hitler, having fallen in love with him. Although she did become close to Hitler – he considered her to be a ‘perfect example of Aryan womanhood’. He told her to return to England as war approached. She shot herself in the head in Munich’s English Garden but survived and was dispatched home.
Another admirer of Hitler was the Duke of Westminster, a man who believed countless conspiracies among British Jews to subvert the country. He even spent the first year of the war demanding, to whoever would listen, that peace be made with Germany.
One of the most colourful ermine-clad extremists was the 22nd Earl of Erroll, the Casanova of Kenya’s debauched Happy Valley set. After being mesmerised by Hitler, this devastatingly handsome man promised to introduce Fascism to East Africa. This included a self-supporting empire that would not ‘trade with the dirty foreigner’.
But his plans were short-lived. The Earl was found murdered in his car on January 24, 1941, on a country road outside Nairobi. It has been suggested that his death was carried out by the British secret services when his political activities became dangerous.
Among the most famous names associated with anti-Semitism was the fifth Duke of Wellington . He became a member of the secret Right Club, which attempted to unify all pre-war Right-wing groups in Britain.
The founder, Archibald Ramsay, said of the organisation: ‘The main objective was to oppose and expose the activities of organised Jewry. Our first objective was to clear the Conservative Party of Jewish influence, and the character of our membership and meetings were strictly in keeping with this objective.’
Yet another extremist was the Marquess of Graham . He succeeded to the title of Duke of Montrose and went to live in Rhodesia (now Zimbabwe) where he became a staunch white supremacist. He served in Ian Smith’s breakaway Rhodesia Front government and in one speech said: ‘The Beatles, international finance groups, colonial freedom movements and students agitators were all agents of a communist plot to achieve world domination.’
One Hitler-admiring peer, the Duke of Buccleuch, was even close to King George VI as the Lord Steward of the Royal Household. He also accompanied Lord Brocket to celebrate the Fuhrer;s 50th birthday. It was a matter of personal delight to Hitler that the duke, a man who served in the very court of Britain;s Royal Family, was there .
Buccleuch was opposed to any war with the Nazis and when it did break out in 1939, he joined the Peace Aims Group and urged a truce based on Germany keeping all the lands Hitler had stolen in Europe. Even after the bombing started, he continued to defend Hitler. A continuing embarrassment to the King, he was sacked in 1940.
One of the most alarming figures among this cabal was Lord Londonderry – Winston Churchill’s cousin and a member of one of the country’s wealthiest aristocratic families. The king called him ‘Charlie’ and other members of the Royal Family were frequent guests at his London home, as were major political figures.
He regularly visited Germany, met Hitler several times and even stayed with Goering at his hunting lodge. But he was not taken seriously and Churchill referred to him as a ‘half-wit’. He was known in the press as ‘the Londonderry Herr’ for his pro-German leanings.
One of the best-known figures was Sir Oswald Mosley, founder of the Blackshirts and a man who yearned to be Britain’s own ‘Fuhrer’. A highly charismatic man , he was deeply impressed by Mussolini and founded the British Union of Fascists.
I once interviewed him at his ‘Versailles home and over lunch, at which Lady Mosley (one of the Mitford sisters) was present, we discussed the Holocaust.
I mentioned, just in the course of conversation, that I was Jewish – at which Lady Mosley went ashen, snapped a crimson nail and left the room. No explanation was given but she would later write to a friend:
‘A nice, polite reporter came to interview Tom [as Mosley was known] but he turned out to be Jewish and was sitting there at our table. They are a very clever race and come in all shapes and sizes.’
But towering over all these figures were the Duke and Duchess of Windsor. He had abdicated as King Edward VIII in 1936 in order to marry American divorcee, Wallis Simpson. They were later given the ducal titles .
Their admiration for Hitler concerned the government, particularly after they were entertained by him on a visit in 1937. Even the Americans were alarmed – the FBI sent a memo to President Roosevelt stating that the duchess was ‘exceedingly pro-German in her sympathies and connections’. The Duke was given the wartime job of governor of the Bahamas and ‘Roosevelt ordered the FBI to follow them when they visited the US.
It was believed that Goering had concluded a deal with the Duke to install him on the throne after Germany had won the war. His court would, no doubt, have comprised many of those pernicious peers who had lauded Hitler so lavishly.
To order Aristocrats: Power, Grace And Decadence by Lawrence James (Little, Brown, £25) with free UK delivery, send a cheque or PO made payable to Express Bookshop to Aristocrats Book Offer, PO Box 200, Falmouth TR11 4WJ or phone 0871 988 8367 (calls (10p/min from UK landlines) or visit www.expressbookshop.com