Rural Economy and Connectivity Committee

Meeting date: Wednesday, June 7, 2017

Official Report 554KB pdf

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Forestry and Land Management (Scotland) Bill: Stage 1

Good morning, everyone, and welcome to the 19th meeting in 2017 of the Rural Economy and Connectivity Committee. I ask everyone please to ensure that all mobile phones are on silent. We have received apologies from Fulton MacGregor and Gail Ross.

The first item on the agenda is the Forestry and Land Management (Scotland) Bill, which was introduced to the Scottish Parliament on 10 May. We will begin our scrutiny of the bill by taking evidence from the Scottish Government’s bill team, the Forestry Commission and Forest Enterprise Scotland. We have a large panel of witnesses this morning. I welcome from the Scottish Government Carole Barker-Munro, who is the bill manager; Ginny Gardner, who is the head of forestry devolution; Catherine Murdoch, who is the deputy bill manager; and Gemma MacAllister, who is a solicitor. I also welcome Jo O’Hara, who is the head of the Forestry Commission Scotland; and Simon Hodge, who is the chief executive of Forest Enterprise Scotland.

The committee has a lot of questions and we have a large panel, so I ask witnesses to try to catch my eye if they want to speak. I urge committee members and witnesses to keep questions and answers as short as possible. We will go straight to exploring themes around the bill. Rhoda Grant will ask the first question.

Was anything that had been in the consultation subsequently dropped from the bill?

The consultation had three themes. The one that is particularly relevant to the bill is the legislation and regulation theme. We did not drop from the bill anything that was in the consultation. There was a commitment on sustainable forest management, a long-term commitment to forestry and a commitment that the details of regulation would be taken out of primary legislation and put in secondary legislation. Those were the main points under the legislation and regulation theme, and they are still in the bill.

I will say a little bit more about the other two elements. Our proposals on organisational structures are not in the bill, because we propose to bring the structures into the Scottish Government. That will give them the same legal identity as the Scottish ministers; therefore, there will not need to be a public identity for the public bodies in the bill.

The other element is cross-border arrangements, which are subject to negotiation with our colleagues in the United Kingdom and Welsh Governments. We will require a Scotland Act 1998 order to set them up, but we do not need anything in the bill.

What is in the bill that was not consulted on, and how did you subsequently consult and get feedback on that?

The Scottish Parliament information centre briefing alludes to the fact that we did not specifically mention a forestry strategy in the consultation; what we mentioned was a long-term commitment to forestry. In the course of our discussions with stakeholders, we heard concern that short-term political timeframes would affect the long-term commitment to forestry, so we sought to allay those concerns by including a statutory duty to prepare a forestry strategy. That is in line with feedback that we received in the responses.

What was the most controversial issue in the consultation? What received the most feedback? I suppose that some issues might have received a lot of supportive feedback, but what appeared to be most controversial?

We had a yes or no question on the proposals for organisational structures; although a majority of organisation respondents supported the proposals, a majority of individual respondents did not.

The main issue that people fed back was concern about loss of expertise and skills, but the Scottish ministers believe that our proposals for organisational structures deal with that issue. We have made a commitment that all members of staff from Forestry Commission Scotland and Forest Enterprise Scotland will transfer to the Scottish Government, and the Scottish ministers have made a commitment that the local office network will be retained. Therefore, the local engagement and knowledge that exist will be retained.

Another issue that people spoke about was making Forestry Commission Scotland and Forest Enterprise Scotland a single body. The Scottish ministers already see them as separate bodies with separate functions. Keeping them separate is also a response to feedback from stakeholders about separating the regulator, which is the Forestry Commission Scotland, and the regulated, which is Forest Enterprise Scotland.

I understand what you said about expertise and that, on day 1, the expertise will be exactly the same. However, as part of the Government, how will that expertise be continued in the future, and how will you continue to ensure that foresters are in a position of influence in the Scottish Government, given that civil servants move around?

There are two elements to that. The first is that there are already a lot of specialists in the Scottish Government; it is quite normal to have groups of specialists with continuing professional development. There are procurement specialists, lawyers—such as Gemma MacAllister—accountants and so on. It is not unusual to have groups of specialists in the Scottish Government; that would not change for forestry.

Secondly, we recognise the importance of forestry skills and we have a commitment to retain them in the Scottish Government.

I want to look at part 2 of the bill and the question of forestry functions and strategy. Functions are moving from the forestry commissioners to the Scottish ministers. Will those functions be the same or different?

The functions will be different in that they are being modernised. At the moment, forestry commissioners have functions that have been layered up over time since the Forestry Act 1967. In bringing the functions to the Scottish ministers, the opportunity has been taken to put a main general duty on the Scottish ministers for sustainable forest management that recognises the inherent balance in forestry. It also links to the sustainable development of economic, social and environmental objectives. That is a different type of duty, but it is still a principal duty on the Scottish ministers to promote forestry and to take account of the various outcomes that forestry can contribute to.

The second duty—the duty to prepare a forestry strategy—is new. There is a forestry strategy at the moment, which Forestry Commission Scotland prepared, but there is no statutory requirement to do that. That will be a new duty on the Scottish ministers.

Those are the two main duties that are placed on the Scottish ministers in part 2 of the bill.

Let us leave the strategy for now; I will come back to it. Will we see much difference in practice? You talked about modernising. Is it more a question of using modern and up-to-date language?

I see it as being more about using modern and up-to-date language. Sustainable forestry management is a very well recognised and internationally known concept that is supported by the industry and the environmental sector, and it happens at the moment. It is underpinned by “The UK Forestry Standard”, using which people demonstrate that they are doing that. There is new language.

So you do not foresee big practical differences, and we will not expect to see them.

The policy is not to make big practical differences; the difference is that the bill acknowledges the multiple roles of forestry, rather than there being a series of little bespoke duties that have been layered up over time and are sometimes quite difficult to negotiate and navigate. There is a broader duty that recognises the multiple benefits at the outset.

Okay. Thanks.

You mentioned the forestry strategy. I understand that there is a strategy at present, but it is not required by statute and that, with the bill, a strategy will be required by statute.

That is correct.

If we already have a strategy, why do we need to put it in statute?

The policy of having a forestry strategy in statute will require ministers to have a strategy and to recognise the importance of forestry. That connects back to the question from your colleague Rhoda Grant about how to retain skills and staff in the Scottish Government. If there is a statutory requirement for a strategy, there must be policies and there must be outcomes that we are looking to gain from forestry, so staff in the Government will be needed to deliver those. It is about putting forestry front and centre among ministers’ objectives and recognising the importance to the sector of a strategy.

When I was looking at the bill, I noticed that the strategy will have to balance economic development and environmental enhancement. How do you see that balance being achieved? Sometimes there will have to be compromises.

There is already a balancing objective that Forestry Commission Scotland has to meet in balancing three pillars. That already happens in the strategy.

May I bring in Jo O’Hara?

The bill does not say that there will be three pillars; it just says that economic development and environmental enhancement have to be balanced. Perhaps Jo O’Hara can explain that.

Sure. The principle of sustainable forestry management is about bringing together social, environmental and economic objectives. That is well understood among the forestry profession here and globally. As Carole Barker-Munro said, we have worked on that using “The UK Forestry Standard” and the existing forestry strategy. That is why it is in the bill.

I endorse what Carole Barker-Munro said about the current duty. The Forestry Act 1967 was about productive forestry. Over the years, other balancing duties have been brought in. Basically, the bill catches up with modern forestry practices. It balances all the different objectives that forestry can deliver at site, regional and national levels, and is part of the modernisation agenda. The language in legislation is catching up with modern forestry.

I want to pick up on the point about how things work in practice. Consultation—on the Scottish forestry strategy, the strategic directions for the national forest estate, and individual parts of the estate or individual afforestation or forestry proposals—is a large part of the approach. Through that consultation process, the nitty-gritty of what the appropriate balance looks like in each case is worked through.

I hear what is being said about the bill being about modernisation of forestry management.

Does anyone on the panel have fundamental concerns about the fact that many functions are moving from the Forestry Commission Scotland, which is, in effect, a fairly independent public body with a civil service role, to being under the responsibility of the Scottish ministers, who are, by default, political appointees? Is there any concern that the move is not just about modernisation, and that it may have a detrimental effect on the independence that the Forestry Commission Scotland currently has?

10:15  

It looks as if Ginny Gardner is in the firing line for that one. [Laughter.]

Well spotted, convener.

I am not sure that the Scottish ministers would recognise the situation that you describe regarding the current independence of the Forestry Commission. Commission staff are civil servants, as you say, and they work very closely with the Scottish Government. Jo O’Hara and Simon Hodge are, on a daily basis, part of the senior management team of the directorate in which we all work. In practical terms, the Forestry Commission Scotland and Forest Enterprise Scotland already operate as if they are part of the Scottish Government.

The bill requires that there will be a strategy. We have an existing strategy, so can we just slot it in, or would changes have to be made? Would it fit or not?

There would be no legal impediment to adopting the existing strategy. However, it is now quite old, and the current land use strategy contains a commitment to review the forestry strategy.

Thank you for that.

I will be fairly brief. The policy memorandum states:

“responsibility for all plant health in Scotland will now reside in one place.”

However, it is not clear whether the bill encompasses the duties in the Plant Varieties and Seeds Act 1964 that relate to sale of plants and seeds in particular. Can you clarify that?

I will cover that. The 1964 seeds act—to give it its shortest name—is currently not used for dealing with forest or silvicultural reproductive materials to any great extent. We are transferring those functions to ministers, but we do not expect a change on the ground, if that is the point of your question.

All the functions in the Plant Health Act 1967 and in the 1964 seeds act that are currently carved out for the commissioners will transfer back to ministers. We do not see any immediate change happening in how they are used.

I suppose that I am making the rather simple point that those functions touch on the health of our plants. Forestry is one thing, but plants and seeds can provide vectors for diseases, fungi and all sorts of adverse health events. I want some assurance that everything is going to work together in a way that serves the needs of all the different parts of the system.

I see. Currently, most of the action to protect plants across the UK is undertaken through the Plant Health Act 1967, which governs, for example, importation of seeds. The 1964 seeds act is more about bringing things to market. Protection from the threat of plant diseases is dealt with under the Plant Health Act 1967. Those functions will all be with the Scottish ministers. Everything will be in one place.

Everything will be in one big pot.

Yes.

I have questions on management to further sustainable development. The bill states:

“The Scottish Ministers must manage forestry land in a way that promotes sustainable forest management”,

and it sets out the meaning of “forestry land”. I would like further clarity on two points. First, section 10(b) refers to

“other land that the Scottish Ministers manage for the purpose of exercising their functions under section 9.”

Can someone clarify that, please?

I am happy to do that. The

“other land that the Scottish Ministers manage for the purpose of exercising their functions”

could be any land that is not in the national forest estate. The Scottish ministers own the national forest estate, and it is managed by Simon Hodge and his team. The Scottish ministers also own other land that could be used for a variety of purposes, and the provision enables that land, for the purposes of its management, to be brought within the remit of the bill so that sustainable forest management might apply should they wish to plant trees on that land.

The other category of land that the provision would refer to is land that belongs to someone else and that the Scottish ministers manage under an arrangement under section 14 of the bill. In that case, they manage the land on a contractual basis on behalf of another person.

Right. My second question was going to be about section 14. How does that differ from the present arrangement? Is it consistent with the present arrangement?

In terms of forestry land, it is consistent with the present arrangement. Forest Enterprise Scotland already manages land on behalf of other people, and I am sure that Simon Hodge will be happy to tell you more about that. Section 14 provides the legislative underpinning for that to happen. The provision enables a land management service, but also a land advice service, and those are two functions that Forest Enterprise Scotland already undertakes.

I will add to that briefly. The current forestry legislation basically pins the entire management of the national forest estate to forestry and forestry purposes. As the years have gone on, there has been a desire for us to be involved in delivery across a wider set of objectives, particularly as one third of the estate—some 200,000 hectares—is not forestry land but other land.

As we have been using our skill sets to develop agendas and link with, for example, communities, wider habitat management, and agriculture and new entrants, we have had to peg all of those in some way to forestry. The bill provides an opportunity to recognise the value that that other land can deliver for purposes other than forestry.

Thank you.

John, I do not want to cut across your bows. I would not mind asking a question on that subject, but if you have more to ask on it, please lead on.

No, I was going to move on to another subject.

Okay. I cannot quite see how all of this will pan out. It seems that land that the Government owns that is not part of the national forest estate will now become part of that estate. Will you clarify that for me? If the Government owns a chunk of land up in the Cairngorms, will the management of that land fall under the act? Will Creag Meagaidh fall under it? Will it stay with Scottish Natural Heritage or will it become part of the forest estate?

Under the bill, the only way to add to the national forest estate is to purchase land for the purposes of forestry, in which case it will automatically be added to the national forest estate. The bill does not automatically add any other land that the Scottish ministers own to the national forest estate, so it will retain that status.

So land that is owned at the moment does not fall naturally into the national forest estate. Only land that is purchased or acquired for forestry falls within the management of that.

Yes—after the bill is enacted. The way to add to the national forest estate will be to purchase land for that, and it will then become part of the national forest estate. The bill does not automatically bring the rest of the Scottish ministers’ landholdings or indeed any other public sector landholdings within what is defined as the national forest estate.

Thank you. Sorry—I was a wee bit confused.

Sorry to cut across your bows, John.

Not at all.

I think that Peter Chapman has a supplementary question.

I would like to clarify Simon Hodge’s statement that a third of the land—200,000 hectares—is not under forestry at present. That seems an awful lot of land that you have control over that is not planted. Is a lot of it awaiting replanting, having been felled? Does that come into the 200,000 hectares?

No. Land that is felled and awaiting replanting is still considered to be forestry land. The land that is not forestry land is principally mountainous hill land, extensive peat bogs or the approximately 30,000 hectares of land in active agricultural use, as well as other types of land such as riparian land and some coastal land.

Okay. Thank you.

Sorry, John—back to you.

Thanks. We have touched on section 9 and the management of forestry land. There seem to be some similarities between sections 9 and 13. What is the difference between the land that applies in those sections, and its terms of management? Also, when would the power be called upon?

Section 9 is principally about forestry land or land that is principally designated for forestry, including the national forest estate. The purpose of section 13 is to fulfil the policy that, through the new executive agency forestry and land Scotland, the Scottish ministers should be able to have a broader land management role, moving away from a silo approach of purely managing forestry.

Under section 9, forestry land should be managed for the purposes of sustainable forest management or instead it can be used for sustainable development,

“having regard to the forestry strategy.”

That will enable an opening up of the purposes that such land can be used for.

Land under section 13 is not forestry land; it is other land. The purpose for which it should be managed is sustainable development. Sustainable forest management and sustainable development are twin beasts—SFM is about forestry land and sustainable development applies to other land.

Thank you. I am conscious that section 13(2)(a) refers to the compulsory purchase of land outlined in section 16, but I think that colleagues are going to ask questions about that so I will leave it there.

This is the one part of the bill that I am struggling with. It would seem that section 16 gives power to the Scottish ministers for the first time to compulsorily purchase land to achieve sustainable development, but there is no definition of sustainable development in the bill. Section 16(1) states:

“The Scottish Ministers may compulsorily acquire land that they require for the purpose of exercising their functions under”

sections 9 and 13. Section 9(1) states:

“The Scottish Ministers must manage forestry land in a way that promotes sustainable forest management.”

It seems to me that that gives incredible power to the Scottish ministers to compulsorily purchase land and add it to the forest estate. Is that correct?

There are a number of points to address, so I apologise if I take a little bit of time over this, but it is important.

The first point is that powers of compulsory purchase are not new for forestry; they are in the 1967 act. Those powers have been taken over and broadly replicated in the bill.

Before you move on from that point, it would be helpful if you defined what the compulsory purchase powers are under the 1967 act. They are purely for forestry, are they not? They do not include sustainable development.

The powers are purely for forestry and purposes connected to forestry.

Which does not include sustainable development.

Which does not include sustainable development.

Thank you—I just wanted to clarify that.

Those powers have been lifted from the 1967 act and included in the bill. As we have mentioned, one of the purposes of the bill is for the Scottish ministers to have a broader land management role. There is a symmetry in the bill in that all the powers that are available for forestry are available for the broader land management purpose. That is why the power to acquire land and the power to acquire it through a compulsory purchase order have been included.

Mike Rumbles is correct that this would be the first statute under which the Scottish ministers, purely for the purpose of sustainable development, would have CPO powers. The Scottish ministers and a number of public bodies have powers in the rural area that could relate to sustainable development, but that particular term would be new to the legislation.

Checks and balances are provided in the bill. The underpinning legislation by which land would be acquired through compulsion is the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947, which sets out the standard procedure for the exercise of those powers, and that provides the checks and balances. There is also a Scottish Government policy document that sets out the purposes of compulsory purchase. It is for those reasons that that power is in the bill.

Therefore, the bill does not just transfer current compulsory purchase powers under the law as it stands; it increases ministers’ compulsory purchase powers.

Yes, that is correct.

I am just a little bit exercised about the fact that the Scottish ministers may compulsorily acquire land that they require—it will be up to the ministers to decide what they want to do with this.

It would be up to ministers, following the procedures set out for all compulsory purchase powers.

It seems to me that we would be giving an incredibly wide power to the Scottish ministers. Is that not right?

I agree that it is a widening of the current compulsory purchase power.

10:30  

It might help if Carole Barker-Munro gave an example of what she thinks this might encompass.

I can give an example with regard to forestry—

I think that we understand how it will apply to forestry; the issue here is sustainable development.

The powers would be exercised in accordance with the Government’s policy of the day for the outcomes that it wanted the new agency to achieve. The current policy is that the new agency’s focus is to be on forestry, so I am afraid that I am unable to give the committee a specific example of when a Government of the future would use the power in relation to sustainable development. As I have said, it is there because of the desire for symmetry across the piece.

I am a little confused as to why you cannot give us any examples. After all, this is an important piece of legislation. We are talking about taking land away from people who own it—and doing so for a particular purpose—but you do not seem to be able to give an example of when the power would be used. We are being asked as a committee of the Parliament to give ministers this new power, but I can see no specific examples of the different situations in which it might be used instead of the power that ministers have now. I have no problem with the powers that ministers have at the moment, but I am utterly confused about the need for the new power.

We have pushed Carole Barker-Munro quite hard on this point, and I am happy to bring in Simon Hodge for a comment, but perhaps it is an issue that we should take up with the minister.

I have been searching my mind for an example to give you. As Carole Barker-Munro has suggested, looking back the way, we have not seen these kinds of situations to any degree. However, I remember a case a couple of years ago involving a designated peat bog that had a historical permission for peat extraction. Given its designation as a special area of conservation, we worked closely with the Scottish ministers on finding a solution to avoid the bog’s destruction as a result of peat extraction. In the end, we went through a process of buying the site out and bringing it under management to restore it to favourable condition. Compulsory purchase was not discussed in that case, and the situation did not pertain directly to the 1967 act, but to my mind it is an example of the sort of situation where one could imagine the power being considered as an option.

Carole Barker-Munro was right to say that this is an important point, because members are now queuing up to ask questions. John Finnie is next.

“Sustainable” is a much used and, I would suggest, much abused word—although I would say that, wouldn’t I? Was it a conscious decision not to define the term in the bill?

It was a conscious decision. “Sustainable development” is a well-used term, and it is used in legislation without being defined. Gemma MacAllister might be able to give some examples of recent bills in which it has not been defined.

I am happy to do so. The term “sustainable development” is not defined in the bill, but there is established case law that says that its meaning is clear to the legislature, judges and ministers. The Scottish Government’s view, then, was that it did not have to be defined.

But the terms “forestry land” and “national forest estate” are defined.

The default interpretative rule, if you like, is that where a word is not defined in a piece of legislation—and not all words are defined in legislation—it takes its ordinary meaning. In other words, a judge would look simply at the plain, ordinary meaning of the words.

Would it be possible, then, to share with the committee in writing the definition of “sustainable development”?

We are happy to come back to the committee with the judgment that Gemma MacAllister referred to, but I point out that the purpose of defining “forestry land” in the bill is to give transparency for the public and MSPs with regard to the land that should be subject to sustainable forest management. There is a transparency element, because members of the public should be able to identify what constitutes forestry land and therefore the places where ministers should be practising sustainable forest management.

I am looking again at you, John, because I am as intrigued as you are by this line of questioning.

The national forest estate might be a well defined area, and I understand what you say in relation to rulings. However, although you might feel that it might not apply with regard to the bill, if you were able to give a definition of “sustainable economic growth”, that would be extremely helpful. If there was a precedent for that, it would be good to know.

It would probably be quite helpful if we wrote to you to set out a number of definitions.

That would be appreciated.

That would be helpful. Looking around the table, I can see a few raised eyebrows with regard to what things mean.

I need to declare an interest in that I am a farmer and own farmland in Aberdeenshire. My concern is that the bill is incredibly broad. What is to stop the minister on a whim deciding that he would like a chunk of my land in the north-east so that he can plant on it? If he came forward and said, “I quite fancy a bit of that; it would make a nice forest,” how would I argue against that if I did not want to sell? The bill is incredibly wide and, I think, incredibly dangerous.

I also own a bit of land, so I am nervous about ministers, too. I should declare that I have an interest in a farming partnership. I suspect that Stewart Stevenson is going to say that he has a wee interest, too.

Indeed, I have 3 acres adjacent to forest land, which is, therefore, land that someone might naturally think to extend a forest into.

Now that we have got that out of the way, I invite Carole Barker-Munro to come back in.

My colleagues who deal with policy on compulsory purchase would take issue with the idea that it would be done on a whim, as there are procedures for these things. Checks and balances are set out in Scottish Government policy. We are happy to provide further information if we can. Compulsory purchase is not an area that we lead on, but the bill reflects Scottish Government policy, which is to have the powers available for situations in which agreement cannot be reached.

The power would always be exercised in accordance with the published guidance. I hope that you have seen the circular that talks about exercising the power when it is in the public interest to do so. Nothing would cut across that.

I must say that I remain to be convinced. I look forward to your written submission on the point. I think that the bill is far too wide, far too broad and far too dangerous. We need to give the matter considerable thought.

Due process has been mentioned a few times. If the minister decides, from a policy point of view, to purchase a piece of land, what is the process that the minister has to go through? Who does the minister have to satisfy in order to allow that to happen?

Compulsory purchase is an issue that is being dealt with by my legal colleague, who is not here today. However, the procedure was established in the 1947 act that Carole Barker-Munro referred to. It sets out a procedure that has been followed on many occasions and which includes checks and balances such as publication requirements and opportunities for being heard via a hearing or a public local inquiry, and it hooks into legislation that gives provision for compensation. Further, as I said, the power would only ever be exercised in the public interest—that is what is in ministers’ published guidance.

The land need not be purchased for the purposes of forestry; it could be purchased for sustainable development, although that is an undefined term. Is that correct?

“Sustainable development” is not defined, but it is not unusual not to define terms in legislation. The term will take its ordinary meaning. There are many terms in many pieces of legislation that are not defined. In those cases, when it comes to those terms being interpreted, the ordinary meaning of the words or the term are considered. As I said, there is established case law, with a judge saying that “sustainable development” is a clearly understood term. I believe that various accompanying documents such as the policy memorandum and the Scottish Parliament information centre briefing have referred to internationally accepted definitions of the term.

What judicial recourse or statutory options are available to members of the public if they disagree with the intentions of the minister with regard to compulsory purchase?

That is where the objection procedure comes in. It is all about someone having an opportunity to be heard and have their concerns put forward.

Because of the nature of the powers, the legislation is interpreted strictly by the courts. That is part of the checks and balances that Carole Barker-Munro spoke about.

Just to clarify, and to use an example that I have seen, if someone owns a small patch of land and the Forestry Commission wants access to its woods on the far side, in the past, it would do that by negotiation, but in future it could compulsorily purchase a track through the farm and argue that that is in the public interest. I think that the bill will allow the Forestry Commission to do that, or am I wrong?

The Forestry Act 1967 allows the Forestry Commission to do that at the moment, if the purpose is forestry.

If there is another route, the Forestry Commission cannot do it, but under the bill, it could, under the sustainable development provision. Perhaps you could ponder that.

I would like to ponder that one.

We have heard a number of comments about there being checks and balances, although I am still not clear what they are. From what has been said, it seems that the minister will decide what is in the public interest. Is that correct?

We have heard that the power will be used only after negotiation, but if Parliament gives the minister the power of enhanced compulsory purchase, that will strengthen his or her hand in any negotiation with landowners about what he or she wants to purchase. I am not clear what the checks and balances are under the enhanced power that we are giving the minister.

The best way for us to answer that is for us—with your permission, convener—to write to the committee with a detailed explanation of the way in which compulsory purchase works overall, because that is the procedure that we are tapping into. It would be helpful to set out how the process works for a number of powers and bodies.

A letter on that would be helpful.

I have a quick question on that issue. My reading of the bill suggests that the power can be used for forestry purposes, but the example given was the preservation of peatland. I am not clear whether the bill refers to non-forestry land.

The power of compulsory purchase refers to forestry and non-forestry land. The forestry land provision is not new; the provision on non-forestry land for the purposes of sustainable development is new.

Can you direct me to where that is in the bill, because that is not my reading?

Section 16(1) says:

“The Scottish Ministers may compulsorily acquire land that they require for the purpose of exercising their functions under ... section 9”,

which relates to forestry, and “section 13”, which is for the purpose of sustainable development.

Before we move on to John Finnie, I have a question on disposal of land. Currently, the Government policy, with the agreement of the Parliament, is that it can dispose of land to rationalise, but the proceeds must be reinvested in the forest estate. There is a concern that section 17 of the bill gives the Government the ability to dispose of land but does not require it to reinvest the proceeds in the forest estate.

Section 17 gives the Scottish ministers the powers to dispose of land. Those are not much different from the current legislative powers that ministers have to dispose of land. However, at the moment, a policy is in place around the proceeds being reinvested.

Simon Hodge wants to come in on that.

Just to clarify, we have two streams for disposal on the estate. One is called rationalisation, which is the disposal of small pockets of land and buildings that are no longer required. We use that income to fund the majority of our capital activity, such as the purchase of vehicles and fleet and capital works on management buildings and the like. The other, which hitherto was called rationalisation but is now the new woodland investment programme, involves a larger-scale sale of land for reinvestment, principally into woodland creation, although in the past few years it has also been used to invest in, for example, integrated land management with active farming for new entrants.

Therefore we have the larger-scale sale for reinvestment in woodland creation and the smaller-scale rationalisation to fund Forest Enterprise Scotland’s capital requirements.

10:45  

I can see that Carole Barker-Munro wants to come back in, but I am worried about the amount of time that we have to deal with the number of themes that we have left. She can come in briefly.

I just want to draw the committee’s attention to the fact that any disposals of the national forest estate have to be undertaken in accordance with the forestry strategy.

Okay.

I have some questions about community bodies. Section 18 of the bill allows the delegation of management of forestry and other land to community bodies, and sections 19 and 20 deal with other aspects of that. Will you outline how the powers in sections 18, 19 and 20 differ from similar powers in the Forestry Act 1967?

The power in section 18 is a straight lift from the 1967 act, with the exception that it is for not just forestry land but any land. Again, that is a broadening and a contribution to the community empowerment agenda. The definition in section 19 is the definition in the 1967 act that was amended by Parliament two years ago via the Community Empowerment (Scotland) Act 2015, so it is a straight lift but with a slight broadening to take account of the wider role.

Okay. I will ask some other questions quickly, if I may, convener. Ms Barker-Munro, how did you arrive at the meaning of a “community body” as set out in the bill? How does it compare to the meaning in the 2015 act?

We arrived at that meaning because it is currently law. It is in the 1967 act, as amended via the 2015 act, so it was the Parliament that arrived at that definition for forestry purposes, and we have purely replicated it. There are a number of different definitions of a community body in statute, depending on the purpose. The 2015 act has different definitions of a “community body”, depending on the purpose for which the provisions are used.

The policy memorandum states that the bill is

“contributing to the community empowerment policy agenda.”

How will that be achieved, please?

The bill will enable communities to get involved in managing parts of the national forest estate. As I said, that is based on existing law and we have merely lifted it and put it into the bill, because we saw no reason not to.

It was a question and not an accusation. [Laughter.] I am sorry if it was presented as the latter.

I will pass it over to Simon.

On our current practice, we have just launched a new community asset transfer scheme that, in effect, broadens an existing mechanism to allow communities to bid to acquire parts of the national forest estate. Crucially, that increases the breadth from communities of geography—local residential communities—to communities of interest, which is consistent with the 2015 act. I see those provisions in the bill as enabling us to continue to operate on that basis rather than as significantly broadening the powers. We have already brought our practices in line with the 2015 act, and the provisions will ensure that the bill is aligned with those existing powers.

Thank you, that is very positive. I am afraid that I am going to have to use the term “compulsory purchase” again. Perhaps you can respond to this question in writing if you cannot answer it just now. It relates to land that is bought through compulsory purchase to further the achievement of sustainable development. Will the bill allow ministers to delegate the management of that land to a community body?

I will respond to that in writing, but I believe that the legislation will allow that. However, I will need to check whether certain rules are in place about what can be done with land after it is purchased through a CPO.

Okay. Many thanks indeed.

It would also be helpful to know with regard to land no longer required for sustainable development whether the Government will have an obligation to sell it back to the person from whom it was compulsorily purchased, which I believe is the law at the moment. It would help if you could clarify that.

Members have a lot of questions on felling. Richard Lyle will lead on it.

Basically, I am going to put it all together, if I can. The policy memorandum states:

“While the Forestry Act 1967 focused on timber production, the new regime allows for a broader view to be taken.”

However, the consultation document included few details on a new felling regime allowing a broader view. Why does the Scottish Government feel that a broader view of felling is needed? In what way are the provisions in the bill broader than the scope of the current felling regime? How much detail on the changes to the felling regime was included in the consultation document? What were respondents’ views on the proposals about felling?

I will try to keep my answer short, as per the convener’s instructions. We have broadened the regime in the sense that we are tying all decisions on felling permission back to sustainable forest management. The old regime focuses strongly on allowing felling for timber production. We are tying decisions back to sustainable forest management. In taking decisions, a view will have to be taken on the balance of the three aspects that we discussed earlier.

In the consultation, we said that some of the detail in the Forestry Act 1967 would drop down into secondary legislation, and that is what we are doing. The detail of how the regime will be broadened, in terms of the process and what applicants can expect, will fall to secondary legislation. That will allow us to work with the sector to ensure that when we talk about referring back to SFM, it understands what that means, and that the processes that we put in place will function correctly.

I turn to regulations on felling. The part of the bill on felling lacks detail, as much of the detail will be provided in regulations. The bill provides for regulations on a number of matters, including applications for felling permission, decisions on applications to fell a tree, compensation for refusal of felling permission, felling directions, restocking directions and appeals against decisions by ministers.

Why is so much of the detail on the felling regime to be included in regulations rather than in the bill? What will the timetable and the process be for developing and consulting on those regulations?

The thinking behind having all of that detail in secondary legislation is that the provisions in this area are very detailed. For example, the Forestry Act 1967 provides for exceptions to the situations in which it is necessary to apply for a felling licence; it goes into detail on, for example, the diameter of trees, which is amended by secondary legislation when it needs to be. We have taken the view that it would be fairer to the sector, in the first instance, to work with it to create all the regulations. It would have been difficult for us to do that prior to the bill being published, because the framework is quite different. We will now work with the sector to put all of the detail together and we intend to have it ready for commencement. Our current working date is spring 2019.

My last question is about refusal of felling permission. Section 29 relates to compensation for refusal of felling permission. Under what circumstances might the Scottish ministers refuse an application for felling permission? What is the current process for compensation in such circumstances?

The detail of the situations in which felling permission might be refused is among the detail that we have yet to work out. At one end of the spectrum are situations in which it would be detrimental to the environment to fell or it might be desirable not to fell from a timber supply point of view. However, I am led to believe that it is quite rare for felling permission to be refused—I am looking at Jo O’Hara, because she is the current regulator. It is much more likely that felling permission will continue to be given but that conditions will be attached that require restocking.

It is less a case of stopping felling happening and more one of maintaining woodland cover after felling takes place. The way in which felling is regulated and will continue to be regulated is that conditions can be attached to permission to fell, and the regulator can require restocking when felling has taken place illegally. Those are the basic principles now and that will continue.

That is fine—thank you.

Would you like to come in on that, Jo?

If it would be helpful.

I was a bit confused by the fact that it seems that someone can be refused permission to fell but can then be ordered to fell in the interest of sustainable development. Someone might be refused permission to fell for a nature conservation reason, but the majority of the trees might blow over and they might be ordered to fell them and then to restock the land. I do not quite understand how all that will work.

The confusion is perhaps because it looks linear in the bill—that is just how it is set out—but it is not linear in practice. The reason for having the ability to direct felling is more about avoiding harm caused by trees, although it is rare for such a situation to arise. That ability exists, but I am not sure how often it is used. A stand of trees that is grown for timber that someone wants to fell is a separate situation and a regulation is in place that allows us to require restocking. Situations in which we, as the regulator, would direct felling are quite different—those would be where trees are causing harm.

I noticed that Jo O’Hara is nodding in agreement that that situation does not happen often.

Mike, do you want to come in before I move on?

Yes, please. The bill is obviously directed at commercial tree felling and that sort of thing, but it has just struck me that section 23 says:

“A person commits an offence if the person fells a tree”.

It then sets out a list of exemptions. I want to ask what is, in a way, a silly question. In rural Aberdeenshire, a lot of people have large 1-acre gardens with trees in them. Are we bringing such people into the bill? I am pleased to see Catherine Murdoch shake her head. However, as a layperson reading the bill, I see that it says that

“A person commits an offence if the person fells a tree”.

Yes, it does look like that. In reality, the current offence is felling a growing tree. We continue with that offence; it is simply a question of construction. An offence needs to be clear, so that people understand when they are committing an offence. On top of that, we will have exemptions. Currently, those exemptions could set a minimum area, for example. Therefore, we would take the single tree out of the equation by creating an exemption for it.

Right. There are exemptions in the bill and the current law.

They will be set out in secondary legislation.

The offence will not apply to residences.

This is a forestry bill. We are not looking at single trees, but we will put all the exemptions in secondary legislation. That is how it will be constructed.

I just wanted that point to be clarified. Thank you.

Jo O’Hara is going to come in and tell us that it is still all right to cut down the odd tree for firewood, no doubt.

If you look at the current legislation—I would not blame you if you did not want to do that, because there are all sorts of complexity in there—you will see that it lays out all the exemptions, including whether it is a fruit tree, a tree in a garden or a tree in a park. To be honest, the exemptions need to be brought up to date, and that will be done in the secondary legislation that we are talking about.

Peter Chapman has the next question.

My question is about notices to comply and compliance. Chapter 6 of the bill is about registering notices to comply with continuing conditions, felling directions and restocking directions. How do the bill’s provisions on registration of notices to comply differ from the current system?

Broadly speaking, the current system allows the regulator to enforce a failure to comply with a felling licence or a felling direction on subsequent owners. We are putting in place a link to the existing system that will allow new owners to know exactly what they are purchasing, including any burdens that sit with that land. At the moment, it is less transparent than that. If you were to purchase land, you would be dependent on the seller telling you that they had a felling licence and that conditions would still run with that land. We are putting in place the opportunity for the regulator to take a view about whether those conditions should be put on the register, so that they would all appear in the usual searches that solicitors run when a person is purchasing a piece of land.

This is about purchasing an existing forest that is already growing trees—

You could be purchasing the land at the point when everything has been felled and restocking conditions still apply. It is about having transparency at that point. If you were to buy a mature forest, you would understand what you were buying much more easily than you would if you were buying a piece of forestry land that has been felled but has not yet been restocked.

I am happy with that.

A consequence of the bill will be the repeal of the Forestry Act 1967 in Scotland. The main thing that struck me from that is the fact that the current act states that all activities on national forest estate land must be tree related. The bill removes that restriction. Is anyone on the panel aware of any other substantial consequences or implications of the repeal of the 1967 act that the committee should be aware of?

11:00  

The view has been taken that some of the functions that were placed on the forestry commissioners by the 1967 act are obsolete or unnecessary. I would be happy to write to the committee with a list of those functions, but there are examples that relate to activities such as going on to a neighbour’s land, shooting their rabbits and selling them back to him for the privilege. We felt that that was perhaps not a modern policy directive.

A slightly more sensible function is the powers that forestry commissioners have to make byelaws for access. Because of the Land Reform (Scotland) Act 2003 and the fact that access is now a local issue, and because the Scottish ministers do not have powers to make byelaws for access, those powers should not be kept for the Scottish ministers. There are some examples of the opportunity being taken to modernise, refresh and remove some of the obsolete functions. I am happy to provide a list of those if it would be helpful.

It would be helpful to get a list of things that are being dropped or lost as a result of the repeal of the 1967 act, and additional or new things in the bill so that there is a clear comparison.

We would be happy to provide that.

Further to that, why do some aspects of the bill that widen the scope of the Scottish ministers’ powers fall into this bill when they should perhaps have been included in the Land Reform (Scotland) Act 2016? Why are they being included in the bill if they do not relate specifically to forestry?

The main element of the bill that is not related to forestry is the one that we have already touched on, which is the broader land management role. That is there to fulfil a manifesto commitment and policy to give the Scottish ministers a wider land management role and to establish forestry and land Scotland as a land agency for Scotland. The bill facilitates delivery of that manifesto commitment.

So the new forestry division will sit within the new executive agency.

No. The new forestry division will sit within the Scottish Government. It will be a division of the environment and forestry directorate. Forestry and land Scotland will be the new executive agency and it will report to the Scottish ministers.

I think perhaps we need to see an organogram structure of how the agencies, divisions, directorates and ministers all fit together. That would also be quite helpful.

I am happy to provide that.

One of the most interesting aspects of any bill is its financial side. We have heard about the forestry governance project board, which was set up to look at the finances of the devolution of forestry. Can you tell us about that? Does it produce a report? Where are we going with that?

The forestry governance project board was set up after the announcement by ministers in 2015 that they had agreed with the UK Government to complete the devolution of forestry. The board is chaired jointly by directors in the Department for Environment, Food and Rural Affairs and the Scottish Government. It also has members from the Forestry Commission. Jo O’Hara and Simon Hodge are on it, along with forestry representatives from England and Wales.

The board’s remit is specifically about the cross-border arrangements. Because we need to agree across the three Governments, the board is not about finance in Scotland. It looks at the cross-border functions that are delivered by forestry commissioners across Britain and at the processes that will be put in place across the three countries for those arrangements in the future. The particular finance issue that arises is that, at the moment, the cross-border functions are funded by DEFRA on behalf of all Administrations and we are looking at how that funding will be shared going forward. It is a specific cross-border issue.

Forest Research Scotland contributes £2.48 million to that. Will we be contributing more after devolution or less?

The £2.48 million is specifically for research that only Scotland is asking Forest Research to do. Jo O’Hara might want to say a bit more about that. Forest Research gets its core budget from DEFRA—I think that it is about £8 million—and that covers research that is relevant to all Britain, not just to Scotland. We obviously want that research to continue.

Would the risk be that, because we have got more than our 8.3 per cent population share of forestry, we might end up having to foot more of the bill that DEFRA used to fund?

We are still negotiating the share but we anticipate that our share of the budget that is currently in DEFRA will come to the Scottish Government.

Is there agreement about how it will be shared out?

That is still up for agreement.

I think that we would like to be kept updated on that.

Yes.

It is suggested that there will not be a huge cost and nothing for local authorities or other bodies. However, one of the big chunks will be information technology costs. Whenever IT is mentioned at this committee, people get quite wound up and worried. The figures vary from £2.05 million to £8.05 million, which seems to be quite a wide range. What is your comment on that?

As set out in the financial memorandum, IT specialists in the Forestry Commission are working with our Scottish Government IT specialists on the exact nature of the integration of the current systems. They still have to fully work out aspects of that, which is why there is a greater range on some of the aspects under that item.

I think that it would be fair to ask for updates on that as we go on.

Of course.

It might also be useful to know that that is the broadest range and that the cost will not go above it.

That is the broadest range that the IT specialists have given.

Those are all the questions that we have time for. The clerks will marshal the questions that I have not been able to bring in; we will submit those and remind you of the things that you have undertaken to respond to the committee on.

I thank you all for coming. In the coming weeks, we will be taking further evidence from various stakeholders, and I suspect that we might well be seeing some of you again when the cabinet secretary comes to update the committee. Thank you.

11:08 Meeting suspended.  

11:12 On resuming—