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(We’ve) Got The Power! – Or Do We?

(We’ve) Got The Power! – Or Do We?

Anyone who knows me well knows that I love music. I often find myself unconsciously singing songs to myself which are vaguely related to what I’ve been doing each day. One song I’ve found myself singing quite a lot recently is Snap!’s 1990 hit “I’ve Got The Power”. Why? Because a lot of the work I’ve been doing recently concerns community empowerment.

Specifically, I’ve been helping organisations ensure that their constitutions comply with the provisions of the Community Empowerment (Scotland) Act 2015. One of the major aims act was to give more power to community bodies, by making it easier for these bodies to acquire ownership or control of land and buildings in their community. Lately, however, I’ve been finding myself questioning whether community bodies do in fact have the power. And it would appear that I am not the only one. 

The Scottish Land Commission is currently reviewing the effectiveness of the legal mechanisms surrounding community right to buy. It is expected that a report will be submitted to the Commission some time next month by the consultants carrying out the work. Having been involved in assisting a number of community bodies to amend their constitutions to bring them into line with the requirements of the 2015 Act, I anticipate that the Commission’s review may find that, to date, there have not been as many community bodies registering an interest in land under the CRtB regime as originally hoped. Also, the Commission’s website suggests that only the CRtB legislation is being reviewed; however, it would be interesting, and useful, if the legislation surrounding community asset transfer formed part of this review.

The community empowerment legislation was meant to make it easier for community bodies to take control of land within their community with a view to using or developing the land for the benefit of the community which they represent.  We would, therefore, have expected the definition of community body within the legislation to reflect common features of existing community organisations across Scotland, rather than necessitating a large number of community bodies across Scotland to make changes so as to secure eligibility.  What we have been finding is that community bodies are having to go through a highly technical, and often protracted, process of amending their constitutions to ensure compliance with the legislation – and also taking on board the particular interpretation placed on the statutory eligibility criteria by the Scottish Government Community Land team and a number of others. 

One example of this is the definition of the community. Due to the restrictions imposed by the legislation, communities must be defined in the constitution in certain prescribed ways. This can mean that certain bodies are finding themselves spending time and resource considering and redefining their community boundaries. This is just one example of the numerous changes we typically have to make to constitutions to make them CRtB compliant. 

A further difficulty is that, in the process of agreeing a constitution which is compliant in terms of the legislation, we often find that queries/points are raised, discussed and resolved, but then another set of separate observations are then raised, and so on and so forth. Also, the queries are not always soundly based from a technical perspective. This not only costs money but, more importantly, the time it takes to finalise the constitution could potentially result in a community body losing out on opportunities to acquire rights in land due to technicalities relating to the wording of their constitution.

Considering the overarching aim of the legislation, and whilst I appreciate the importance of ensuring that bodies making use of these rights are indeed strongly linked with their local community, I doubt that the intention was to place the additional burden on community bodies which the requirements of the legislation seem to have created. 

Given these issues, I will be interested to read the results of the review undertaken by the Commission to understand what effect the legislation has had in practice. Hopefully, the review and subsequent discussion will help to tease out and resolve some of the problems currently faced by community bodies, resulting in community bodies being able to exercise their rights more easily. And maybe then I will be free to recite the lyrics to “I’ve Got the Power” to myself once again - without doubting whether this statement is in fact true. 

As always, please do get in touch should you have any comments/queries.

By Rhona McAdam
Solicitor, Public & Third Sector

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