Constitutional Right to Land, Phase 2 Version (first draft):

Wed Apr 29 23:04:41 BST 2015

Rights and Duties:
Is it high time the UK had a bill of rights like the US?
https://www.constitutionuk.com/post/84718

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A Right to Land
Phase 2 Version (first draft):
https://www.constitutionuk.com/post/84718

Every individual who has rights of citizenship by birth shall have a right ('their birthright') to inherit, directly or indirectly, a fair share of the nation's stock of private residential, agricultural and industrial land. The law shall define what constitutes a fair share with due regard to:

the principles enshrined in this constitution;
the need for efficient allocation and effective stewardship of the nation's primary natural resource;
people's need for certainty in the enjoyment of their landholdings.
The law shall provide, as far as is practicable, for everyone to:

claim all or part of their birthright;
leave all or part of it unclaimed, in the stewardship of others;
dispose of all or part of it, temporarily or permanently, by contract or gift, once they have reached an age and condition of full discretion.
A fair share of land-market-value shall be considered an acceptable substitute for a fair share of actual land.

All holders of a freehold estate in land shall be deemed to hold the future interest in that land as trustees for future generations. Their duty as trustees shall be secondary to their own rights in respect of enjoyment of the land but shall be primary in all questions regarding transfer of ownership. As trustees they shall have a responsibility to nominate a successor to take over their rights and responsibilities after their death. Only natural persons and agencies of the state shall be permitted to hold freehold estates in land.

All holders of agricultural land in excess of their own fair share shall be deemed to hold it as trustees for those who have left their shares unclaimed. Landholders' duty as trustees shall be considered secondary to their right to work the land as they see fit but shall be a primary consideration in all questions regarding transfer of ownership and in any change from agricultural use. Trustees shall give due regard to the principle set out in [No deprivation of means of subsistence: https://constitutionuk.com/post/94518 ] in considering whether to hold or relinquish their trusteeship.

Notes:

Legal definitions of land include buildings.

A fair share of land-market-value implies changes to the existing land market, as discussed in the comments during phase 1, but those changes do not need to be specified in the constitution.

The wording in the final paragraph assumes that the principle in 'No deprivation of means of subsistence' will be something like "No individual shall be deprived of all means of subsistence, nor unnecessarily forced into a position of dependency, by the operation of law". For people wanting to work their own land, that principle should be enough to prevent unnecessarily restrictive planning laws and the provision here should be enough to give them a reasonable chance to obtain land, while still allowing the stewards of larger amounts of land reasonable protection for their own rights (though there would be considerable detail for lesser law to work out).

Phase 1 version:

The issue of how land should be allocated lies at the heart of the law. It is our most fundamental resource – we cannot sustain life without it or engage in any activity without using it.  If someone is denied access to land, they are denied the means to sustain life; if the law denies a right to land it effectively denies a right to life. The people who control a nation's land and can deny others access to it, have a hold over everybody else which tilts the whole economic and social landscape in their favour.

If there is any right which deserves to be enshrined in the constitution, it is the right to inherit a fair share of the nation's natural resources.

There are probably several ways that could be arranged and I don't believe a constitution should define the exact method. But a constitution should not include provisions which are not viable. Introducing a right to land would be such a major change that it does need to be demonstrated that there is both a practical way of achieving it and a way of bringing in the reform without compromising the foundations of the economy. So I outline below the two key changes which I think are needed: a subtle change to the perception of inheritance law and a structural change to the way markets in land operate.

A major barrier to the introduction of such a right is the fact that, in Britain at least, there is no unowned land – so a right to land for a new-born necessarily involves a transfer from someone else. Underlying this problem is the fact that our current laws of succession put no limit on how much land an individual can acquire through inheritance, with the effect that the children of the landless are fundamentally disadvantaged.

This could be overcome through a simple clarification of the purpose of inheritance law, specifically of the nature of testators' power to bequeath property. That power is currently seen as a privilege which the Crown grants a testator to be exercised as he or she pleases, but in fact there are good reasons, both historically and in principle, why it should actually be regarded as a responsibility which the Crown delegates to them (which should therefore be exercised in the public interest).

The historical position should only be of minor importance but inheritance is so deeply embedded in our culture that I think it is worth considering briefly (though, for simplicity's sake, I'll focus on England). Historically, all land titles in England have their roots in the estates William I granted to his tenants-in-chief. At that time land ownership was part of the machinery of government – landowners were essentially the local authorities of their day. Over the centuries, the other responsibilities which went with it were taken over by other bodies but the power to nominate their successor remained with the landowner.

It's undoubtedly the case that those powers were often exercised as a privilege right from the start, but, as far as I know, there's no reason to suppose that this was ever their essential nature. (And one reason the other administrative responsibilities were transferred to other bodies was precisely because they too were often exercised as a privilege.)

As for the principle, there are good reasons why responsibility for nominating a successor should have been delegated to the current holder, because generally the existing owner was the person who was best placed to know who would make best use of the property. The existing owner knew who had a relationship with the land already, whereas the state had only minimal knowledge of it.

Clarifying the purpose of inheritance law in this way should solve the supply side of the problem but another reform would be needed to solve the demand side. Land values vary hugely and different people have different land use requirements, so simply parcelling out land would not be an effective or equitable way of giving everyone a right to land.

Since the amount of land is fixed, however, all that is needed is to separate the land market from the broader market. If the land market operated with its own tradeable, fixed-quantity currency it would be a relatively simple matter to give everyone a more-or-less equal share of land-market-value. As each generation died, their allocation of land-credits would be released and could be shared out among the generation just coming of age.

This isn't the place to go into the details of how those reforms would work –  there are many aspects of the market which would have to operate differently – but hopefully the outlines I've given above are enough to show that a right to land would be viable, and could be brought into operation over the course of a generation or so, without depriving existing owners.

I believe a right to land is fundamental enough that it should be explicitly included in a constitution but, in fact, it would be implicitly included if the reform I suggested in the Judiciary section were adopted. There – https://constitutionuk.com/post/84153 – I proposed a requirement that laws be consistent with generally accepted principles and existing land law is manifestly incompatible with the principle of equality of opportunity.

--------------------------------------------
On Mon, 30/3/15, Malcolm Ramsay malcolm.ramsay at talk21.com [Diggers350] <Diggers350-noreply at yahoogroups.com> wrote:

 Subject: [Diggers350] Constitutional Right to Land
 To: Diggers350 at yahoogroups.com
 Date: Monday, 30 March, 2015, 13:30

 The
 Institute of Public Affairs is currently running a project
 to crowdsource a new
 constitution for the UK, where the public have been able
 to propose, and vote on, ideas for what a new constitution
 should include. Although it's likely that government
 will simply ignore what it comes up with, it is the first
 time anything quite like it has been tried, so the people
 taking part are hopeful it will attract attention for issues
 which are currently ignored.
 The
 first phase of the project is coming to an end on Sunday
 when any 
 idea with a negative vote will be dropped, while others will
 be 
 discussed for another couple of weeks before a proposed
 constitution is 
 drawn up in late April.
 Among
 other things, I've proposed a Right to
 Land - which, unfortunately, currently has a vote of
 minus three! If anyone would like to try and get land
 rights on the mainstream political radar, all you have to do
 to vote is register and click.
 Malcolm
 Ramsay

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