I have to explain more frequently than one may imagine the meaning of ‘freehold’. In England, only the Sovereign owns land; the rest of us just hold bits of the Sovereign’s land on various terms. Freehold means just that – that we hold the land of the Crown free of fee and charge. Of course, from 1688 onwards the grounds on which the Sovereign could deprive us of our holding have been increasingly governed by legislation. Generally only when the Crown wants to enable the building of a new airport or motorway can our holding be cancelled. And when that freehold is also your dwelling even the Crown (through the civil courts) can’t transfer that freehold to your creditors in settlement.
I deliberately wrote ‘England’ above. Things are slightly different in Scotland. The 2003 Scottish Land Reform Act though is pretty similar to the Countryside and Rights of way Act 2000 in England; both grant rights to others to use your land for recreation. Aimed at the bogeyman of large landholders, as hated as bankers in some parts, these were populist bits of legislation designed as vote-winners. A few disgruntled peers having to tolerate the hoi-polloi in fluorescent kagouls picnicking on their lawns didn’t count.
But now it seems the legislation will be tested in the ECHR; are the rights granted to walkers and crofters at odds with the rights to enjoyment of property in the European Convention? People like the Duke of Buccleuch are unlikely appellants for Human Rights, but the Court of Session in Edinburgh must now turn its mind to the question.