Chamber and committees

I think that I will move it.

I am grateful to members and the cabinet secretary for their contributions. It has been quite a considered discussion. It was good to hear your reflections as well, convener.

On Michael Matheson’s question about the role of Crown Estate Scotland, I recognise that it currently manages property rights and interests. There is no reason why that could not continue with regard to my amendments, although there would have to be some amendment to the duties under the 2019 act.

These issues are not new; they have been hanging around since the beginning of devolution. The former Scottish Labour-Lib Dem Executive asked the Scottish Law Commission to consider the law of the foreshore and seabed back in 1999. The commission reported in 2003 but, 22 years down the line, nothing has been done on that.

I hope that that is helpful in outlining what I think the on-going role of Crown Estate Scotland would be in relation to the amendments.

This is a welcome opportunity to talk about the role of our planning authorities and the need to have more planners. I am not currently a member of the Royal Town Planning Institute, so that is not in my entry in the register of members’ interests, but that was my background before coming into the Parliament. It is worrying that there is a real shortage of planners. We need to get more people in, not just for our planning authorities but for other important organisations, including in the private sector. I am pleased that the Scottish Government is working with partners to begin to widen access to the planning profession. I will never miss the opportunity to agree with colleagues that we need to champion planners and get more of them.

The Government often asks local authorities to take on more responsibilities. Where that is right and proper, we should not make the underresourcing of our public services an excuse not to do things. If we need to talk about how we invest in public services, that is what we should do.

Good points were made by Michael Matheson about spatial planning.

I am not really qualified to contradict the cabinet secretary when she advises the committee that I am encroaching into reserved matters.

Having listened to what members have said, therefore, I will seek to withdraw amendment 515 and I will not move amendment 516. Nonetheless, there could be some further discussion to be had, and I hope that the Government appreciates the intent behind the amendments. It should recognise that many people in Scotland feel that there is unfinished business with regard to the ambitions of the Scottish Executive in 1999 and the questions that were posed at that time. Those questions have still to be answered, and if that is not to happen in this bill, when will it happen?

Amendment 515, by agreement, withdrawn.

Amendment 516 not moved.

Section 7—Duty to publish model lease

Thank you, convener—I have the right paperwork in front of me now. It has been a long day. I will speak to amendments 515 and 516 on Crown rights to the foreshore and the seabed.

The devolution of the management of the Crown estate was an important and overdue reform, but that journey is not complete. Back in 2000, the Parliament abolished the Crown’s role as paramount superior, as part of the abolition of the feudal system. It is within devolved competence to legislate on the Crown’s property rights and interests, as is set out in paragraph 3 of schedule 5 to the Scotland Act 1998.

Amendments 515 and 516 seek to complete the modernisation of Scotland’s land law by abolishing the remaining archaic role of the Crown in Scotland’s land tenure system by transferring ownership of the Crown foreshore to local authorities and that of the seabed to Scottish ministers. That would enable those important assets to be managed as assets of democratically accountable organisations rather than of the Crown, which, at the accession of every new monarch, is entitled to reclaim control of them.

Of Scotland’s 375 harbours and ports, 241 are owned and managed by local authorities, 24 are owned and managed by other public authorities and 33 are trust ports. They all operate under a statutory framework that is intended to secure the public interest, and they are critical to Scotland’s marine economy. It is important that that public interest extends to the foreshore and the seabed around those harbours and ports.

Amendments 515 and 516 would also prevent any future re-reservation of the management of the Crown estate, because it would cease to exist. The amendments that I have lodged might sound familiar—they were first proposed by Andy Wightman MSP during the passage of the Scottish Crown Estate Bill but were ruled out of scope because that bill dealt with the management rather than the ownership of Crown property. No such inhibition applies to the Land Reform (Scotland) Bill, which concerns the ownership and management of all land in Scotland.

I move amendment 515.

Then no, I will not move it.

I have had the numbering clarified. I am sorry—there is a lot of paperwork here.

Yes—thank you, convener.

Amendment 514 not moved.

Apologies—my papers are out of order. Can I have a second to double-check which way I will go?

Amendment 514 is the only amendment in my name in this group. Common good is the oldest form of community ownership in Scotland, dating back to the 13th century. It is an important part of the heritage of many communities, and those places should have the opportunity to take back ownership and control of such assets should they wish to do so.

With the abolition of town councils 50 years ago, in May 1975, 194 of Scotland’s burghs lost ownership and control of land and other assets that they had held for centuries, in many cases. Through two reorganisations of local government, the administration of those assets has been somewhat chaotic and has lacked direct accountability to the communities concerned.

There are 25 burghs in Fife, for example—and I hope that Mark Ruskell will not contradict me on that. They are 25 distinct communities, from St Andrews to Dunfermline, and all their common good is owned and governed by the local authority, Fife Council. If we believe in community empowerment, community ownership and community wealth building, those highly significant and historic assets should be owned by the communities to whom they belong.

Amendment 514 ensures that there will be a legal framework to enable that to happen, should communities wish. The amendment suggests that that can be done by way of an amendment to the Land Reform (Scotland) Act 2003, but I am open to hearing about other ways of achieving the same goal. The amendment also refers to the right to buy common good assets. I want to make it clear that those assets already belong to the communities, and they should not have to pay money for them. I would expect transfer of ownership to be at a nominal cost. The phrase “to buy” is better read as meaning “to transfer ownership”.

A variety of types of common land—remnants of a much larger extent of land, from before enclosure and privatisation—still exist across Scotland. Their legal status is unclear and precarious. Many such pieces of land have been divided and appropriated by neighbouring landowners, and communities have lacked the means by which to protect that land from such activities. For example, Carluke commonty was saved by Andy Wightman, who is known to members around the table and who worked with the local development trust to register title to it.

In England and Wales, the purpose of the Commons Registration Act 1965 is

“to provide for the registration of common land and of town or village greens; to amend the law as to prescriptive claims to rights of common; and for purposes connected therewith.”

Scotland needs an equivalent register, because we have fallen way behind England and Wales in that regard.

My amendment 473 provides for the creation of such a register and for regulation-making powers to require that any local authority may seize and manage such assets or transfer them to an appropriate body.

In the latter half of the 16th century, fully half of Scotland was held as part of some form of commons. Today, little of that remains, but what does remain deserves better protection. I hope that that explains the rationale behind amendment 473.

I will speak to my amendments 475 and 477. Mark Ruskell, on behalf of Ariane Burgess, has set out why we need to address the issue of ScotLIS. I will try not to repeat any of Mark Ruskell’s ably made points on that, but it is good to put on the record again that, in 2015, when he was Deputy First Minister, John Swinney, made a clear commitment to establish a land information system for Scotland and that such a system would provide

“a one-stop-digital database for land and information services”.

Mark Ruskell has outlined what has been implemented and some of the shortcomings around that. That implementation work is incomplete. I recently submitted a written question to the Government on the matter and got a response from the Minister for Public Finance, Ivan McKee. There is on-going work on ScotLIS, but I share Ariane Burgess’s frustration, which Mark Ruskell has articulated.

My amendment 475 is not as prescriptive as Ariane Burgess’s amendment 470, but the rationale is similar. I am keen to hear what the cabinet secretary has to say on it.

I turn to amendment 477. Under regulation 12, paragraph (2)(a) of the Land Register Rules etc (Scotland) Regulations 2014, the keeper of the registers of Scotland is required by law to enter on the title sheets in the land register the “consideration”. Typically, that will be the price paid for land, and that recording of considerations is the reason why we have good data on house prices in Scotland. A consideration can also be recorded as “for love, favour and affection”, for example, which is the accepted term for a gift to a relative—there are other terms that have been used for many decades and have accepted meanings. In recent years, however, an increasing number of large landholdings have changed ownership, with the considerations being given simply as “implementation of missives”.

During the years 2020 to 2022, almost one quarter of all land sold as part of large landholdings—defined as those of more than 500 hectares—entered “implementation of missives” as the consideration. However, in 2023, that jumped to 72 per cent of the extent of all large landholdings, which represents more than 40,000 hectares. Eight out of 12 sales of holdings of more than 1,000 hectares gave that term as the consideration.

Those of you who know the basis of conveyancing will be aware that missives are exchanged as part of the conveyancing process, and they will be implemented unless the sale falls through. Therefore, “implementation of missives” is a meaningless term. As a matter of law, the keeper is a registrar and not an arbiter or enforcer; she faithfully records the consideration as given in the disposition. Given that the term is arguably being used to conceal the sum of money paid, amendment 477 requires the keeper to enter the actual sum of money that changes hands.