Official Report 885KB pdf
The next item of business is stage 2 of the Land Reform (Scotland) Bill, which is consideration of amendments. I welcome the non-committee members who are here today. This is our first stage 2 meeting on the bill. At the moment, the deadline for lodging amendments is 27 June, but more than 516 amendments have already been lodged, which will require some consideration.
Before we go into the detail of the amendments, I remind members, as I always do at the start of stage 2 considerations in this committee, that I have an interest in a farming partnership in Moray, as set out clearly in my entry in the register of members’ interests. Specifically, I declare an interest as the owner of approximately 500 acres—for those of you who want to know the conversion, it is 202 hectares—of farmland, of which 50 acres, or just over 20 hectares, is woodland.
I also declare that I am a tenant of approximately 500 acres, or approximately 202 hectares, in Moray under a non-agricultural tenancy, and that I have another farming tenancy under the Agricultural Holdings (Scotland) Act 1991. I also take on grass lets on an annual basis, should I need to.
It is hard to predict how much progress the committee will make today, but I can say with some confidence that I do not expect us to get past section 6 today. I am looking to stop the stage 2 consideration at around 12.30, so that we have time to consider our work programme.
As this is our first stage 2 meeting on the bill, I will recap the process. Committee members should have before them the bill, the marshalled list and the groupings. For those of you who are watching online, those documents are available on the Scottish Parliament’s bill web page.
I will call each amendment in the order that it appears on the marshalled list. The member who lodged the amendment should either move it or say “not moved” when it is called. If that member does not move the amendment, any other member present may do so. The groupings document sets out the amendments in the order in which they will be debated. There will be one debate on each group of amendments. The member who lodged the first amendment in the group will be called to speak to and move the amendment and to speak to any other amendments in the group. I will then call other members who have amendments in the group to speak, but not to move, their amendments and to speak to the other amendments in the group, if they wish.
I will then call any other members who wish to speak in the debate. If you wish to speak, indicate that to me or to the clerk to make sure that I bring you in. I will then call the cabinet secretary to speak, if she has not already spoken in the debate. Finally, I will call the member who moved the first amendment in the group to wind up and to press or withdraw the amendment. If a member wishes to withdraw an amendment after it has been moved and debated, I will ask whether any member present objects. If there is an objection, I will put the question on the amendment. Later amendments in the group are not debated again when they are reached in the marshalled list. If they are moved, I will put the question on them straight away.
Only committee members may vote in a division, and, because this is a hybrid meeting, voting will be done by roll call. We hope that we will get a result there and then, if the figures tally. If they do not tally, we will do the roll call again until they do—but they will.
That is how it works. There is a huge briefing pack, which is just for today—there is a lot more to come.
Before section 1
Amendment 310, in the name of Ariane Burgess, is grouped with amendments 339, 342, 348, 427, 433, 150, 151, 158, 174 to 174B, 364, 459 and 460. Ariane Burgess is at another committee meeting, so Mark Ruskell is going to speak to and move amendment 310, and speak to the other amendments, on her behalf.
Ariane Burgess sends her apologies. As members know, she is the convener of the Local Government, Housing and Planning Committee, and stage 2 of the Housing (Scotland) Bill is concluding in the committee today.
I will speak to amendment 310 and other amendments in the group. We are all aware that Scotland is very much an outlier among many of our European neighbours in that ownership of land is hugely concentrated, and this bill delivers the next step in land reform. However, any land reform legislation must deal with private property rights, so it is crucial that the process is underpinned by the concept of public interest. That is a widely used term in Scottish and United Kingdom legislation, with more than 200 mentions in primary legislation, including existing land reform legislation on community rights to buy. The concept of public interest is also widely accepted in international law. It forms an integral part of the protection of private property in article 1, protocol 1 of the European convention on human rights, which says that
“No one shall be deprived of his possessions except in the public interest”.
The Parliament and the Government can curtail that right in particular circumstances, provided that those are set out in law and that the curtailment is in pursuit of a legitimate aim and is proportionate. In many forms of legislation, those circumstances are determined by a public interest test. In this legislation, questions of addressing the public interest in the ownership of land have been inexplicably avoided, with a transfer test and lotting decisions being determined by the impact of the specific landholding on community sustainability, a concept that implicitly deals with the public interest but which remains quite poorly defined and which has no apparent legal precedent. Centring the public interest rather than community sustainability would be a far stronger legal position and would be likely to establish a clearer precedent to avoid future legal challenge, as research for the Scottish Land Commission has made clear.
That raises the question of why the Government has not explicitly engaged with public interest considerations, despite the SLC’s recommendations and the fact that the Government’s consultation was clearly framed in relation to a public interest test. As it stands, the bill provides little clue or definition as to what the relevant public interest considerations are in the ownership of land. The bill needs to consider the public interest in the sale, ownership and management of land.
09:15Amendment 310 seeks to place public interest considerations in the bill. That will ensure predictability, transparency and coherence for the landowners who will be producing land management plans and potentially engaging with a transfer/public interest test. If the amendment passes, landowners will produce LMPs based on public interest considerations that would also underpin any assessment if they were to buy or sell land over the threshold. On behalf of Ariane Burgess, I thank Community Land Scotland for its support in preparing the amendment.
Does Mark Ruskell accept that there is often a conflict between public interest and community interest? A wind farm, for example, may be in the public interest in relation to a just transition to net zero, but it might not be what a community wants. How would he balance those two interests?
We will come on to Mr Lumsden’s amendments later in the meeting, when I know that his focus will be explicitly on electricity infrastructure. The point that he makes is why defining the public interest in the bill is important. There is a wider public interest in relation to national infrastructure and there is a community interest in that as well. However, it is a mistake to simply have no definition of “public interest” in the bill. The point that he makes about there being little legal precedent for community interest is perhaps well made, and I am sure that we will come on to his particular interest later in the meeting.
I briefly turn to other amendments in the group. Amendment 339 from Rhoda Grant and amendment 174 from Mercedes Villalba also seek to include public interest considerations in the bill, specifically for LMPs and the transfer of large landholdings. The Greens support those amendments in principle and do not have a problem with them, although we believe that amendment 310 provides a more holistic, joined-up approach to ensure that the public interest will underpin all obligations in the legislation.
Amendments 150 and 151 from Michael Matheson would also introduce a public interest consideration for lotting decisions—I will be happy to support those.
Tim Eagle’s amendments seem to work against the bill’s direction of travel, which is fundamentally about democratising Scotland’s land ownership. I am sure that we will have lots of conversations with Mr Eagle later on about his amendments. The direction of travel in those amendments is not one that the Greens will support.
Similarly, Mr Lumsden’s amendment 364 and his amendments in later groups would seem to set limitations on land being used for the purpose of upgrading our energy system and infrastructure. I do not know whether that is just about wind farms and one type of energy infrastructure, or whether there is also concern about small modular nuclear reactors, fracking infrastructure, carbon capture and storage facilities, Peterhead 2 or any other sorts of energy infrastructure. It is clearly in the national public interest to deliver the cheaper and cleaner energy that households need, so the Greens will not support those amendments.
I will close my opening comments there and wait to hear from other members who will move amendments and contribute to the debate.
I move amendment 310.
I call Rhoda Grant to speak to amendment 339 and other amendments in the group.
Amendment 339 would make land management plans subject to a public interest test, requiring landowners to consider the public interest when pursuing such plans. Owning large areas of land is a privilege and therefore large landowners need to consider the impact of their activities on the wider public when drawing up their land management plans.
Amendment 342 seeks to expand the definition of land that is subject to obligations under proposed new section 44A of the Land Reform (Scotland) Act 2016 to include public interest determinations. It would also add public interest criteria for applying land management obligations and would allow the Government to impose public goods obligations on large landowners. Too often, we hear of communities that cannot access land for vital community interests such as housing and food production. The amendment would empower the Government to step in where community efforts have failed.
Amendment 348 is a technical amendment that is consequential to amendment 342 and would include proposed new section 44D to the 2016 act in the list of relevant sections.
I support other amendments in the group from Mercedes Villalba, Michael Matheson and Ariane Burgess. It is clear that we need a public interest test for many aspects of the bill for the reasons that Mark Ruskell has laid out, which I will not repeat. I look forward to hearing the cabinet secretary’s thoughts on which amendments would best do that.
I call Tim Eagle to speak to amendment 427 and other amendments in the group.
I draw members’ attention to my entry in the register of members’ interests. I thank the committee for welcoming me this morning to speak to and move my amendments to the Land Reform (Scotland) Bill.
My amendment 427 seeks to add a proposed new section—section 67DA—to the Land Reform (Scotland) Act 2003. It seeks to stop land being subjected to a lotting decision if that would not be in the public interest. It would also allow the Scottish ministers to make further determinations under that provision.
My amendment 433 seeks to add a proposed new chapter—chapter 1A—to the 2003 act, which would add a further element to the lotting provisions. It would allow the Scottish ministers to buy land that is subject to a lotting decision if they are satisfied that it is in the public interest to do so. In addition, it sets out that that must be a market value offer.
My amendment 460 would require regulations that are made under those provisions to be subject to section 98(5) of the 2003 act. That means that any statutory instruments that are made under the provisions must be laid before Parliament and approved by it.
I support my colleague Douglas Lumsden’s amendment 364. As a member for the Highlands and Islands, I know of the very deep concerns that many of my constituents have about the number of pylon applications across Scotland.
I call the deputy convener, Michael Matheson, to speak to amendment 150. I will refer to you as “deputy convener” only once—you will get to speak lots of times, but we all know who you are.
I will speak to amendments 150, 151 and 158, which are in my name.
During the committee’s evidence sessions, it was clear that there was a strong desire to see the term “public interest” in the bill, given precedent elsewhere in Scottish legislation. The main purpose of amendments 150, 151 and 158 is to address that point and to make public interest considerations clear and up front. The amendments also make it clear that the Scottish ministers would be able to consider other elements of the public interest when thinking about whether to require lotting to be undertaken.
Amendment 150 seeks to insert a new subsection in proposed new section 67N of the Land Reform (Scotland) Act 2003, to clarify that the powers to require that the land be sold in lots may be used only where the Scottish ministers consider that doing so is in the public interest.
Amendment 151 seeks to amend proposed new section 67N to provide that a lotting decision will not be in the public interest unless the test that is set out in the subsection is met.
Amendment 158 seeks to amend proposed new section 67N to update the cross-reference relating to amendment 150.
I call Mercedes Villalba to speak to amendment 174 and other amendments in the group.
I am pleased to speak to amendment 174 and my other amendments in the group. I thank Community Land Scotland and the Scottish Parliament legislation team for their support in drafting the amendments.
The bill as introduced includes a transfer test that does not make any assessment of the wider public interest in land ownership, nor does it assess whether the buyer or their plans for the land are in the public interest. Successive Scottish Governments have consistently made commitments to diversify land ownership patterns in Scotland but, as it stands, the transfer test in the bill is not an effective mechanism for achieving that.
In order for the test mechanism to be impactful, it must move beyond being a mere assessment of the landholding; it must instead make a forward-facing assessment of whether the landholding and the land management plan of the incoming landowners are in the public interest. That would also create coherence between the otherwise disconnected test and land management elements of the bill.
The committee heard evidence from numerous stakeholders, experts and land users that it is necessary to reframe the transfer test as a public interest test. The stage 1 report noted that the committee
“considers that the transfer test, as drafted, will not meet the aims of the Scottish Government as it does not sufficiently take account of the public interest”.
Unlike the term “community sustainability” in the bill, the term “public interest” is widely used in Scottish and UK legislation. It has more than 200 mentions in primary legislation, including in existing land reform legislation. That means that a public interest test is likely to establish a clearer precedent than a transfer test and would avoid future legal challenges. Research for the Scottish Government and the Scottish Land Commission has been clear on that.
My 174 amendment would therefore insert a forward-facing public interest test into the bill, with that test to be applied to a proposed new buyer in relation to transfers of large landholdings. Under the proposal, land being transferred would remain subject to public interest considerations and existing obligations, such as land management plans; at the same time, it would ensure that potential buyers would fulfil the land management plan obligations necessary for their ownership of the land.
The public interest test in amendment 174 and as amended by the presumed limit in amendment 174A would provide that a proposed transfer would have no effect in a situation where
“(a) section 67G ... or
(b) a lotting decision under section 67N applies to the land”,
if ministers considered that the transfer would not be in the public interest.
Will the member take an intervention?
I will continue before I take the intervention.
In doing so, ministers would have to consider matters to do with the buyer, as set out in subsection (2) of the new section that amendment 174 would insert, namely where the landlord
“is resident for tax purposes ... the size and location of any other land”
that they control, their “plans or proposals” for land management and their future plans for the use or sale of the land.
By having a public interest test that assesses whether the landholding and the proposed purchaser are working in the public interest, that forward-facing burden, including in relation to lotting, is placed on the transfer. Because lotting is defined as being in the public interest, amendment 174 would not violate a property owner’s rights. Rather, it would create what has been described as a fit and proper person test to ensure that, in managing, buying and selling land, the owners of Scotland’s land do so in the public interest.
I will take Douglas Lumsden’s intervention.
Amendment 174 includes the words
“where the person is resident for tax purposes”.
Will the member expand a little on what is intended? For example, if someone lived in a different country, would that rule them out of purchasing land, even if they were going to invest substantial amounts of money in Scotland, or would there be some other mechanism to decide whether that would rule a person in or out of a land purchase?
As I said, the tax residence of a proposed buyer would be a consideration under the public interest test.
It is not enough to address the concentration of ownership. We must also address the scale, given that, today, the ownership of Scotland’s land is concentrated in the hands of the new nobility: asset managers, foreign billionaires and the inheritors of huge estates. Just 0.025 per cent of Scotland’s population owns 67 per cent of our countryside, and the bill presents an opportunity to change that.
That is why my amendment 174A would extend the public interest test to include a presumption against private land ownership of more than 500 hectares, unless that can be demonstrated as being in the public interest.
Large landholders that own land for the public benefit, such as environmental groups, community organisations and public bodies, should be confident that, by definition, their ownership would pass a public interest test. However, the extraordinarily high concentration of land in the hands of so few is severely limiting access to affordable homes, stifling job creation, increasing land prices and harming the environment, so it must be addressed. That is exactly what amendment 174A does.
09:30The same proposal to cap ownership was included in the consultation for my proposed land ownership and public interest (Scotland) bill. That consultation garnered 568 responses, which is more than the Scottish Government’s consultation received for the bill that we are considering. The response was overwhelmingly positive, with majority support for a presumed limit on the amount of land that any person can own.
Amendment 174B seeks to place public interest considerations on the face of the bill in order to underpin a public interest test. That will ensure predictability, transparency and coherence for landowners who engage with the public interest test.
Amendment 459 introduces a provision for Scottish ministers to compulsorily acquire land after a transfer has failed the public interest test. Ministers would be granted the power to compulsorily acquire some or all of the land concerned if doing so would be in the public interest and more likely to secure true sustainable development of the area. That sustainable development must equally and fairly balance all interests, including worker, community, natural environment and biodiversity considerations.
Thank you very much, Mercedes. I call Douglas Lumsden to speak to amendment 364 and other amendments in the group.
I will speak to amendment 364 first. A big issue across Scotland is that communities feel ignored and overruled when it comes to much of the electricity infrastructure that we are seeing pop up across the countryside. It is only right that we try to address that issue in the bill so that we allow communities to have a real say.
If, for example, a community wants a battery storage facility, and that would offer proper community benefits, such as jobs, and if the community embraces it or even wants part ownership of it, that should be welcomed and encouraged.
However, we need to address the situation of communities that are strongly against things that are happening in their areas. I think that that is the aim of the bill, so we should be listening to those communities, and that is what my amendment 364 aims to achieve. If there is a strong community objection to electricity infrastructure in an area, we should be listening to and taking on board those views.
It boils down to the issue that I have raised in some of the questions that I have been asking. Public interest and community interest are not always the same thing—there are often conflicts between them. Even in some of the public interest descriptions that have been laid before us today, conflicts can be seen. One that I can see is between food security and a just transition, as a lot of the time, good farmland is being turned over to use for solar panels and battery storage. That example highlights that there are often conflicts within the public interest definition that has been laid before us.
I will also talk to amendment 174, in the name of Mercedes Villalba.
In an earlier discussion with Mark Ruskell, Mr Lumsden made reference to net zero. I hear the distinction that he makes between public interest and community interest and his point that they might not add up to the same thing. However, in the current climate, some politicians use slogans such as “net stupid zero” and there is a lot of misinformation flying around.
Does Mr Lumsden agree that it is really important that decisions are rooted in evidence and in science, and that sometimes community campaigns can be distorted because of misinformation? I hear the points that he is making, but does he recognise the concerns of some decision makers that, although sometimes community voices can be quite loud, they do not always reflect the public interest and the genuine community interest?
I hear what Monica Lennon is saying. There is misinformation, we should do everything that we can to stamp it out and decisions should be based on evidence.
However, when it comes to some community groups being loud, a lot of them are loud because they are angry at what they see on their doorsteps and they do not feel that they are being listened to. We need to do more about that. If we can bring communities with us on our journey to net zero, that will be a win for us all. I do not feel that that is happening now, and that is why I lodged amendments in that regard.
I wonder whether there is a definition of “local community” and whether there is a scale. Would a cluster of five or six houses near a proposed development count as a local community or would it need to be a wider area? We could have a situation in which a relatively small number of people with a theoretical population density in a remote area could block quite a large development. Is that the intention of the amendment?
That is not the intention, but however large or small a community group is, it should be listened to. I do not think that we could say that a group should be ignored because it is just a small community group—such a group could be impacted the most. If developers could work with even those small communities better, I am sure that many of the issues that we see across Scotland would not be happening.
On amendment 174, in the name of Mercedes Villalba, I asked whether the fact that somebody was not resident in this country for tax purposes would rule them out of making a purchase. I was not clear about the answer to the intervention. That is probably a dangerous line to go down without clarification, and I do not feel that we have that clarity.
Thank you, Douglas. As no other member wishes to say anything, I wish to talk about amendments 310, 339, 150 and 174, which relate to public interest.
I understand the need to address public interest, and I have heard what has been said about it during the course of this stage 2 debate. My concern is that a certain amount of conflict would be created by the list of things in subsection (2) of the proposed new provision that amendment 310 would introduce. When you draw up a management plan as the owner of land, you cannot keep everyone happy—that is for sure—and you cannot afford to do everything that everyone wants to do. There is no definition or clarity in any of these amendments about public interest in relation to who is going to pay the person who delivers the public interest and whether, in fact, that person should be rewarded for that.
At the moment, the system pays agricultural subsidies for achieving various aims. I put my hand up and say that I am in receipt of agricultural subsidies for delivering public good in relation to the production of food.
Proposed new subsection (2)(k), as set out in amendment 310, is about contributing to food security and food system resilience. Another paragraph in proposed subsection (2) relates to a requirement for diversity. The problem is that, sometimes, intensive grazing of land to create food security is the best way forward but it might not be in the Government’s interest. At the moment, the Government is struggling to come to terms with the advice of the Climate Change Committee on whether to reduce livestock numbers across Scotland by 30 per cent. That might destroy farms and farmers who would not be able to achieve the scale needed to carry out their business. I am concerned, and I do not think that any of the tests that have been put forward under amendments 310, 339, 150 or 174 define how public interest and its delivery will be rewarded.
I am thinking about what you have said about those who are in receipt of subsidy. As somebody who is in receipt of subsidy, do you think that you receive it for delivering community interest? I ask because that is what is in the bill at the moment—it is about a community interest test, rather than a wider public interest test.
I do not think that people who are receiving payments under the farm payments schemes are necessarily receiving them for delivering community good. They are receiving them to cover requirements of regulations, such as those that relate to passports for animals, livestock density, the stocking rate and the use of fertiliser and when it can be used on land. Those are the sorts of things that people receive payments for. However, the suggestion in the amendments is that we go way beyond that with the public interest. It gives me some concern that we would put burdens on people who would not be rewarded.
I listened carefully to what was said on the amendment in the name of Mercedes Villalba on tax residency. I am not sure that I understand where someone would have to reside for tax purposes in order to own more than a certain amount of land—would it be Scotland or the United Kingdom? There are two different tax rates and, indeed, different tax codes to show whether someone is resident in Scotland or the United Kingdom. I am not sure that the amendment is competent because I do not understand that point.
May I ask what the member’s position is on the principle of who owns Scotland? Does he think that it is right that anyone anywhere in the world with enough money can own Scotland, while many people here do not have access to the land?
Thank you. I think that my view is quite clear: what people do with the land is more important than who actually owns it. In the past, I have worked for people who brought a huge amount of money into Scotland, invested in Scotland and used local firms to do all the work. To me, that is good. It also delivered on the things that Governments require, such as public access and deer management plans. I am completely without an opinion as to who owns the land; what matters to me is the way that it is managed and run and whether it delivers what the Government is trying to achieve.
For me, it is a point of democracy and accountability, and the extent to which, and how, the individuals you refer to can be held to account by people in Scotland if they do not manage the land appropriately. One would assume that, if someone is based here and has skin in the game—they contribute through taxation and so on—they will have a greater stake in what happens and the decisions that they make will have a greater impact on them, their family and their community.
Thank you. I am afraid that I disagree with you. Let me give you an example, if I may. A fairly large brewing company that owns land just south of Aviemore took millions of pounds from this Government to plant trees, which then all failed. There is no accountability, locally, in relation to those people, who made five people redundant when they took over the estate and created a bit of a desert in the process of managing the land. There was no process to feed in to that management plan.
I do not believe that it is where you live that matters; what matters is what you do with the land, which I think can be controlled by regulation rather than on the basis of ownership.
I am going to move on, but this is a great conversation that I would love to continue elsewhere.
I have huge concerns about environmental groups that own more than 500 hectares of land, because I do not think that such groups are paragons of good land management across Scotland. I can think of some groups that have taken millions of pounds to increase certain species, such as the capercaillie, and have overseen the decline of that species on the land. Just owning more than 500 acres does not make an environmental group a good land manager—it does not work that way.
With regard to the proposed provision on compulsory purchase, there was no definition of how a compulsory purchase would be done and whether it would be done under the compulsory purchase legislation. Further, how would the value of the land be assessed? Would that be based on the value of the public interest or would it be the open market value of the land? I think that there are various problems in relation to that.
Will the member give way?
Mercedes, I will always give way to you on subjects to do with land reform.
Thank you.
If the member supports the principle of compulsory purchase and his only concern is the detail of the amendment, I would be happy to work with him between stage 2 and stage 3 in order to bring the amendment back.
I would be happy to talk to Mercedes Villalba about how compulsory purchase could be done in cases where it was clear that there were bad land management practices, provided that the provision was not limited to private landowners but included environmental groups, too. Provided that it was a broad-spectrum provision, I would be happy to work with her on that.
I have no other comments—those are my concerns with the amendments.
As no one else has anything to say, the floor is yours, cabinet secretary.
09:45
I thank members for all their contributions to the debate on this group of amendments. We are talking about really important matters. It is clear that, across the committee, there is broadly a strong desire for the public interest to be at the heart of the decisions that we take, but there are a wide range of views as to what that might mean and what that could look like.
I have listened carefully to the clear view that has been expressed by stakeholders and the committee that the transfer test that is set out in the bill should take greater account of the public interest. In my response to the committee’s stage 1 report, I was clear that any reframing of the test would have to be consistent with the evidence base for it, which highlights the damaging impact that concentrated land ownership can have on the sustainability of local communities. I welcome the amendments that Michael Matheson has lodged—amendments 150, 151 and 158—because they will make it clear that ministers will require land to be lotted only when they consider that that is in the public interest, so the amendments remain consistent with the evidence base.
Does the cabinet secretary agree that the public interest and the community interest are not always the same thing? There is often a conflict between community interests and what might be considered to be the public interest. For example, with a wind farm, there might be conflict between the two. How do we address that?
Community views are hugely important, and I will turn to that issue later. The mechanisms to deal with those processes—ultimately, through planning—are important in ensuring that those views come through.
Amendment 310 from Ariane Burgess and amendments 339 and 342 from Rhoda Grant seek to introduce a definition of the “public interest” in the bill for various purposes. Although I support the aims that have been referred to in relation to a definition, I do not think that it is necessary or helpful to attempt to define the public interest in the bill in that specific way. That is consistent with the opinion of the Court of Session. In the case of Pairc Crofters Ltd v the Scottish ministers, Lord President Gill noted:
“The public interest is a concept that is to be found throughout the statute book. There is no need for a general definition of it. It is for the Land Court and the Ministers to assess the public interest on the facts and circumstances of the case. A general statutory definition of the public interest, if one could be devised, would be unhelpful”.
It is unclear how ministers or landowners would be expected to fulfil the duty that is set out in amendment 310, which would require ministers and other public bodies to
“have regard to the public interest in land reform.”
That would include many objectives that are listed in the amendment and guidance that is produced by ministers in relation to functions in a wide range of legislation, much of which is not even related to land reform.
I am interested in the point about the case law that has come through the courts in relation to defining the public interest. Will you say more about what that case law has shown in relation to the legality of a public interest test?
I would be happy to share more information with Mark Ruskell and other committee members. As Mercedes Villalba referenced in her comments, we have referred widely to the public interest in legislation, so we cannot just set out what the public interest is in the bill that is in front of us. Amendment 310 is very descriptive—as I set out with reference to the case law, it is too descriptive. It would not be helpful to have a definition that would restrict how “public interest” was interpreted.
I can understand to an extent why the cabinet secretary does not want a description of “public interest” to be in the bill. However, there should surely be a reference to it in the bill so that the whole bill uses that framework, which is legally understood. Would she consider lodging an amendment, in discussion with other members who have lodged amendments, that would cover the whole bill, so that all the actions under the bill would be taken in the public interest?
When we introduced the bill, the transfer test that we set out, which did not explicitly use the term “public interest”, was framed very much in that way. That is because, as Mark Ruskell spoke about, when we are justifying interference with property rights or any interference with article 1 of protocol 1 of the ECHR, we need to ensure that that is proportionate, that it has a legitimate aim and that we have the evidence base for that intervention. We framed that as a transfer test. In essence, that is a public interest test, which is why I am agreeing to the amendments that explicitly state that, because we have to qualify that and set out why it works in the way that it does.
I cannot support amendment 310, given how descriptive it is. I would have to take advice on the implications of Rhoda Grant’s suggestion, but I feel that we might not be able to support that. I am happy to support Michael Matheson’s amendments because of how they are framed.
Amendment 310 would place duties on the Scottish ministers and on other public bodies for purposes that are completely outside the scope of the bill. Such substantial alterations to public decision making should not be made without more detailed consideration and consultation.
There are also serious issues with amendment 339, which would result in a departure from the policy aim of land management plans improving transparency and engagement between landholders and communities. The amendment would create a complex and potentially quite confusing landscape for the landowner when preparing a plan, and it would risk those plans becoming a box-ticking exercise.
Amendment 342 attempts to provide ministers with powers to amend definitions of land to which community engagement obligations would apply. That can already be delivered through existing powers in the bill to update definitions of land through regulations.
That is why I ask members not to support amendments 310, 339 and 342. I also ask members not to support amendment 348, because it is consequential to amendment 342.
Amendment 427 from Tim Eagle would allow the Scottish ministers to determine that a lotting decision was not required if that was in the public interest. For ministers to be able to make that assessment, they would need to consider information about the landholding and determine whether lotting would be beneficial. That is the same information that they would need to consider to make a lotting decision. It is already the intention that transfers are able to be screened out more quickly when that is appropriate. I know that Michael Matheson’s amendment 156 will allow for further guidance to be set on how that screening will take place.
I ask members not to support amendment 427 or amendment 460, which is reliant on amendment 427.
Amendments 174, 174A and 174B from Mercedes Villalba would introduce a test on buyers of land as well as a presumed limit on land ownership of 500 hectares. The amendments are a significant departure from the bill and are not supported by the evidence base. They would give the Scottish ministers a mechanism to entirely block proposed transfers in a wide range of circumstances, based on their assessment of the public interest or on the evaluation of the buyer.
The interference in property rights that would result from those proposals would require a rational and coherent justification based on evidence. The evidence on which I have proceeded is concerned with the effects of concentration of ownership on communities. There is no rational link between that evidence and the proposals that are set out in the amendments.
You have been quite careful about making the bill proportionate so that you avoid legal challenge, which is what the evidence that we have heard has called for. Are you suggesting that Mercedes Villalba’s suggestion of 500 hectares would lead to a legal challenge because it would interfere with people’s human rights?
The amendments would significantly interfere with property rights, and I do not believe that we have the evidence base to connect those aspects, which is my serious concern with the amendments.
I have other concerns about the amendments. For example, if they were to be agreed to, there would be significant resource and financial implications for the Scottish Government.
For those reasons, I ask members not to support amendment 174 and its related amendments. Amendment 459 is dependent on amendment 174, so I ask members not to support it, either.
Amendment 433 from Tim Eagle would allow ministers to offer to buy land before making a lotting decision. That would be a departure from the bill as it is drafted, because it is unclear how public purchase in that way would reduce concentration of land ownership. Ministers and public bodies already have powers to purchase land by voluntary agreement when that is justified. The bill also allows ministers to offer to purchase land in certain circumstances following a review of lotting decisions. I therefore ask members not to support amendment 433.
Before turning to amendment 364, which relates to transfers for electricity infrastructure, I want to make a few comments, because this is a matter of interest to my constituency. I want to make it clear that I am appearing before the committee in my capacity as a minister of the Scottish Government. The position that I am presenting reflects the collective view of the Scottish Government and concerns a matter of law and policy for which I have ministerial responsibility. Separately, and in line with the Scottish ministerial code, I have made my views and those of my constituents known to the responsible minister in the appropriate way. The issue under discussion today is distinct from that constituency interest, so my contributions should be understood as reflecting the Government’s position—I am not taking a personal or constituency-specific stance.
Amendment 364 from Douglas Lumsden is unrelated to the provisions of the bill as introduced. It would block voluntary transfers of any land—not just land that forms part of a large landholding—for the purposes of constructing electricity infrastructure. That would interfere with an owner’s property rights. The justification for the proposed provision is not obvious from the amendment, especially as the amendment does not appear to address the main legal mechanisms by which electricity infrastructure is delivered, such as under the Electricity Act 1989, which is UK Government legislation relating to a reserved matter. I therefore ask members not to support amendment 364.
Thank you, cabinet secretary.
Although Mark Ruskell moved Ariane Burgess’s amendment 310, Ariane has now finished with her other committee business and is here. We have agreed that Mark Ruskell will sum up the debate and press or seek to withdraw amendment 310, but please do not take it as a slight that I am ignoring you, Ariane—I know that you are here.
Thank you, convener. We are of one mind, so we will channel it.
The debate has been interesting. Mercedes Villalba’s contribution underlined the huge and obscene imbalance in land ownership in Scotland. The fundamental case for reform in that regard is not addressed in the bill—it is absolutely nowhere. Although I support Ms Villalba’s amendments, I do not see there being a majority for them in the committee or in the Parliament, which is very sad. We will need a major piece of land reform legislation, possibly in the next session of Parliament, to start to address those fundamental issues.
I turn to the bill that is in front of us. We have had an interesting debate about what constitutes the public interest, and views on the different flavours in that regard have been presented to the committee. Some of those arguments have been taken up by the cabinet secretary, and I thank her for the conversations that she has had with Ariane Burgess, me and my group on that topic. I am sure that that, in part, has resulted in Michael Matheson’s amendments on lotting, which we will support. However, those amendments do not fundamentally address the issue of where the public interest sits in the bill and, frankly, they do not address the current position in which the inadequate definition of “public interest” is wrapped up with the definition of “community interest”. I am interested in how the definition of “public interest” has been considered in cases that have come to the Land Court and elsewhere—perhaps we can think about that during our long summer recess.
There is still some mileage to go. I take on board the concerns about the particular definitions of “public interest” in amendment 310 and others, but, before stage 3, there needs to be a conversation—between me, Rhoda Grant, the cabinet secretary, Ariane Burgess, Michael Matheson and others—about how to better interpret “public interest” in the bill.
In relation to community interest, our debate this morning has been about groups that are against wind farms, but do they represent the community? I do not know—they might do in some areas. However, that term does not have a strong legal definition and is widely interpretable, so that is not a strong basis for going forward.
Ahead of stage 3, we need to focus on how we can place more of a forward-facing burden on landowners, as Mercedes Villalba said, in order to represent the public interest. There is space for more conversation. At the end of the day, the bill is about land reform, not planning, so it is not the place for issues relating to community concerns about developments or whatever. However, I think that something around the public interest could emerge from further discussion.
I will leave my comments there.
10:00
Do you wish to press or seek to withdraw amendment 310?
I press amendment 310.
The question is, that amendment 310 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Lennon, Monica (Central Scotland) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Against
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Lumsden, Douglas (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
Mountain, Edward (Highlands and Islands) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
The result of the division is: For 2, Against 5, Abstentions 0.
Amendment 310 disagreed to.
Section 1—Community-engagement obligations in relation to large land holding
Amendment 10, in the name of Tim Eagle, is grouped with amendments 390, 16, 311, 312, 17, 18, 391, 19, 313, 20, 21, 315, 314, 316, 392, 23, 317, 335, 337, 396, 33, 338 and 340. I remind members of the pre-emption and direct alternatives in this group, as set out on the groupings paper. I call Tim Eagle to move amendment 10 and speak to all the amendments in the group.
Before I start, I want to touch base on something that Mark Ruskell said earlier. I completely respect that there is quite a wide range of views in the room. I think that it is fair to say, as I tried to lay out in my stage 1 speech, that I am not overly supportive of the direction of travel of the bill. I want to put what I will say in relation to a lot of my amendments into context. I agree with the point that the convener made: it is not so much the ownership of the land but its management that comes into this. My experiences in this field have led me to think so.
My amendment 10 seeks to require ministers to provide guidance on the meaning of “engagement with communities” and to define what constitutes communities in relation to section 1 of the bill. As currently drafted, the bill uses the words “engagement” and “communities”, which both have wide connotations. That leaves the meaning unclear. The wording that is used is rather generic and does not refer to a particular group or geographic proximity. If landowners are to be fined for their failure to consult, then they need to know exactly who they are supposed to consult with. Amendment 10 would require additional guidance to be provided to ensure that that remains clear.
My amendment 390 seeks to remove the requirement in the bill for land management plans to be made “publicly available”. There are three reasons why the amendment should be agreed to. First, it seems inappropriate for commercially sensitive information about individual businesses to be made public. Secondly, a vast amount of information is already publicly available, and the bill as drafted could lead to duplication of that information. Thirdly, landowners, particularly farmers, need assurances regarding commercially sensitive information.
My amendment 18 seeks to delete lines 9 and 10 from section 1, page 2, as they require the owner of land to engage
“with communities on the development of, and significant changes to,”
the land management plan. We do not believe that it is feasible for landowners to consult the community when developing or making significant changes to the plan. We therefore propose the removal of that provision.
As the bill would oblige landowners, through regulations, to engage with communities on the development of and significant changes to a plan, my amendment 391 and the consequential amendment 392 would change the reference to “communities” to
“a community body within the vicinity of the land.”
The current use of the word “communities” is generic. In contrast to other sections in part 1 of the bill, this section requires consultation with the generic term “communities” without reference to any particular group or geographic proximity to the land. That is potentially very wide and vague. Landowners can be penalised and fined significant sums for breaching the duty to consult, so the duty needs to be framed clearly in the bill. I believe that the issue would be resolved by agreeing to my amendment.
My amendment 19 seeks to remove the requirement for landowners to engage with communities when there will be significant changes to the plan. It would leave the requirement to engage with communities on the development of the plan. We are particularly concerned about the responsibility on the landowner to engage with communities on any “significant changes” to the land management plan. We do not believe that it is feasible for a landowner to do that. Although our first preference would be to remove the full requirement, this second option, amendment 19, would remove our biggest concern.
I turn to my amendment 21. The bill requires the land management plan to be reviewed and revised every five years. We believe that it is fair that the plans are reviewed and kept up to date but that there should be greater flexibility in the period for review, given the wide range of landholdings and land uses that will be affected.
It is not entirely clear from the bill what is meant by “review”, and whether that will be a full community consultation. Perhaps the cabinet secretary can set out what the intentions are. I would argue that that should be clarified in the bill.
It is not feasible to review a land management plan every five years. The review process is costly—I believe that the committee was told that the estimated cost of that was £15,000. In addition, the plans are supposed to project the long-term future. It might also be disproportionate if there has not been any significant change in circumstances. We believe that the period should be extended to 20 years.
I note that Rhoda Grant’s amendment 315 seeks to amend the review period of the land management plan from five to 10 years. Although I would prefer the period to be 20 years, we will support her amendment as 10 years is an improvement on five years.
I turn to my amendment 23. The bill allows for regulations that impose obligations on the owners of land, including requiring them to produce a land management plan for that land. The amendment seeks to ensure that a new owner is not required to produce a plan immediately on acquiring the land and that they need not make a plan publicly available until one year after they have taken up ownership of the land. That would ensure that the requirement to produce a plan is not a deterrent to new entrants or a financial burden on new owners. It would also allow the new owner time to get to know the land before being bounced into producing a plan.
My amendment 396 seeks to add to the list of what regulations under proposed new section 44A of the Land Reform (Scotland) Act 2016 impose. It seeks to deal with a situation in which a community body or individual member is acting unreasonably when the landowner is attempting to engage with a community for the purposes of proposed new section 44B(1)(b). It allows for that to be reported to the Scottish Land Commission and for the commission to discharge the obligation to consult with the community under section 44B(1)(b). The amendment seeks to ensure that where the landowner is attempting to follow their obligations and a community, community body or individual is making that challenging, the landowner is not considered to have breached their obligations and is not required to continue to attempt engagement. That would protect the landowner where they have tried to follow through with their obligations.
I turn to the other amendments in the group. Although we support the aim of Bob Doris’s amendment 16 to increase accessibility, we have concerns about cost. I would like to know more, such as how much that would cost and who would pay for the land management plans to be accessible.
We will not support Ariane Burgess’s amendment 311 as it is counter to my amendment 390. We seek to restrict the amount of information that is available to the public as a vast amount of information is already publicly available.
We will not support Rhoda Grant’s amendment 312, which seeks to prescribe the format of the land management plan, as that would add unnecessary extra costs on to landowners and prevent them from saving money by using plans that they might have drawn up for other reasons.
We disagree with Bob Doris’s amendments 17 and 31, which would require that land management plans be published online by a public body. A vast amount of information is already publicly available, and we do not want there to be duplication of that information. NFU Scotland has raised significant concern about making public commercially sensitive information about an individual business. Farmers and landowners need assurances regarding commercially sensitive information and that duplication will not be required.
I saw the NFUS’s concerns about commercial confidentiality within land management plans. Under the bill, various groups will have the ability to contact the land and communities commissioner if they believe that the obligation or the land management plans are not being met. If land management plans are not available, how on earth are we to know whether the obligation or the plan is being met?
My concern is about making sure that businesses are allowed to operate in a commercially sensitive environment rather than anything else. I am just picking up on the concerns that the NFUS has already raised on the issue.
We do not support Ariane Burgess’s amendments 313, 314 and 316 as those will make land management plans more onerous. I have lodged an amendment to lessen the burden of their introduction, but those amendments would increase the burden and would act as a disincentive to innovation for farmers and landowners.
We will not support the extension of engagement in Bob Doris’s amendment 20, as that would take us well away from the aims of the bill, which are about community right to buy, and it would make the consultee process too wide and onerous.
I would be interested to hear the cabinet secretary’s response to Rhoda Grant’s amendment 335, on ministers appointing “an independent person” to create a land management plan for crofters.
We will not support Bob Doris’s amendment 33, which allows the commissioner to publish guidance on how owners should comply with requirements that are set out in regulations, as we believe that that provision would cause confusion and overcomplication.
We do not feel able to support Ariane Burgess’s amendment 338, as we believe that it increases the burden associated with the land management plan.
Finally, I am interested in Rhoda Grant’s amendment 340, as there might be instances where a landowner wants to have a single land management plan. I am minded to support that amendment.
I move amendment 10.
I call Bob Doris to speak to amendment 16 and any other amendments in the group.
I will limit myself to speaking to the amendments in my name.
Amendments 16 and 17 together ensure that land management plans are not only available, as is already specified in the bill, but accessible. To that end, amendment 17 would require the plans to be published
“online by a public body to be specified in the regulations by the Scottish Ministers”,
that is, the regulations that ministers could make under new section 44A of the 2016 act, as inserted by section 1 of the bill.
My view is that all land management plans should be accessible—that is very different from them simply being available—and hosted by a public body in one place online, irrespective of which land management plan, from anywhere in the country, an individual wishes to find. A plan should not be like a needle in a haystack but should be signposted clearly and be searchable online.
I have not specified which public body should be given responsibility for publishing the plans online, because I assume that the Scottish Government would wish to discuss that responsibility with a public body that it considers could offer an appropriate online host site for all land management plans. It might make sense for that public body to be the Scottish Land Commission; however, although the amendment is clear on the need for land management plans to be accessible on an online platform, it does not prescribe the host.
I note that there is an associated amendment to section 31 in group 7, which we will come on to later today or another day.
Does Bob Doris anticipate any costs arising from his amendments requiring another location for all land management plans to be held?
The costs for landowners will be in the development and publication of land management plans, and the requirements for that are already in the bill. As has been outlined, there are regulations in the bill that specify the format that the land management plans must use. An obligation to then pass the plans, in the prescribed format, to the relevant public body should add no costs at all. I will listen carefully to the Scottish Government’s position on any associated costs for the public body, how those costs could be absorbed into that body’s budget and whether those costs could be covered elsewhere. However, I do not see my amendments’ proposals leading to any substantial costs at all.
My amendment 20 ensures that, in the development of land management plans, not only will communities be consulted, but that
“there is engagement with any tenants, crofters or small landholders with rights associated with the land on the development of, and significant changes to, the plan”.
I have worked on a number of my amendments with Community Land Scotland, which has noted to me that one example of where engagement would be essential is where tenant farmers are required to produce whole-farm plans as a condition of receiving support payments, because, in theory, those plans could conflict with a landlord’s land management plan. Clearly, if land management plans are to be strategic—and, of course, they should be—it can be anticipated that landowners would engage meaningfully with all who have rights associated with the land. Amendment 20 ensures that that must happen.
My amendment 33 would allow the land and communities commissioner to
“publish guidance on how owners are to comply with requirements mentioned in section 44B(3)”,
which sets out the information that a land management plan must contain. Such guidance would give landowners more clarity or certainty—which they deserve—on how the requirements are to be met. I have lodged amendment 33 because it complements my amendment 30 on the monitoring of land management plans; that will be considered later, in group 7.
I ask all members and the Government to give consideration to all my amendments in this group.
10:15
I call Ariane Burgess, who will finally get to speak to one of her amendments, amendment 311, and any other amendments in the group.
Thank you, convener, for your warm welcome to the committee.
The Green amendments in the group seek to strengthen the provisions on land management plans. Amendment 338 is the most critical and strengthens the duty on landowners from being one of simply preparing land management plans—which I am going to call LMPs so that I do not have to tongue twist “land management plans” a lot—to one of actually implementing LMPs. If plans are prepared but just languish on the shelf, no progress will be made in giving communities a greater say in how land is actually used and it also hinders large landholdings being managed for climate and nature, an idea that was central to the Government’s public consultation in 2023. We certainly cannot have that loophole in the bill.
My amendment 337 would increase the time period to be covered by an LMP from five to 20 years. If, as the Government intended when it consulted on the bill, LMPs are to be a key tool in delivering progress on climate and nature targets, they must take into account the fact that many actions require longer timescales. It could be a decade before some actions begin to produce positive effects for climate and nature, so having longer-term LMPs would mean that climate-positive actions would have time to come to fruition and would be less likely to be chopped and changed every five years. My amendment 311 is consequential to that and my amendments 313 and 314 would ensure that LMPs would still be reviewed every five years, with communities being consulted on developments and revisions.
Finally, my amendment 316 would add a requirement for landowners to submit a report to the land and communities commissioner at the five-year point, ensuring that there is oversight of plans being delivered across 20 years.
I will comment briefly on some other amendments. I am certainly supportive of Bob Doris’s amendments 16, 17 and 20, and probably his amendment 33. I would be interested in understanding why Rhoda Grant believes that amendment 312 is needed and will listen carefully to what she says about amendments 335 and 340 to understand their purpose.
I call Rhoda Grant to speak to amendment 312 and other amendments in the group.
Amendment 312 would ensure that land management plans complied
“with the format to be prescribed by the Scottish Ministers”
which would ensure that the plans would meet the terms of the legislation while being simple to produce in a given format. The evidence about the cost of producing land management plans varied widely, so having a pro forma to hand would make those plans simple to pull together. That said, large landholdings will already have plans to manage their land, unless it is derelict, and should be able to quite simply bring those plans together into a given format.
Amendment 315 would extend the review period from five to 10 years, taking into account the fact that land use patterns are slow to change and that tree planting, peatland restoration and the like can all take decades. The amendment would allow additional time before a review must be carried out. Where there is significant change during that period, the bill already allows a framework for changes to be made to land management plans. I think that 10 years strikes a reasonable balance and believe that the 20-year period that would be created by Tim Eagle’s amendment would be far too long.
I have listened carefully to what Rhoda Grant has said about 10 years being a good period for land management plans. Does the member believe that land management plans should be monitored on an on-going basis? Should the way that that monitoring is to take place be specified in the plan itself? If we get five years into a land management plan and the landowner has not sought to work out whether they are achieving the aims and objectives set out in their plan, that would be an issue, whether it comes after three, five, seven or 10 years. Would Rhoda Grant agree that, however long land management plans last for, there must be built-in monitoring as a matter of course?
I believe that land managers would do that—for instance, if you are planting trees, you need to know how many you have planted and you need to manage them to make sure that they are growing properly and that the conditions are right for them. If something goes wrong, you have to take stock and go back. It is the same for peatland restoration, and it is the same for growing food—you need to plan ahead to make sure that the soil is in the right state to grow the crops that you are looking for. Land management is not something that you do and then walk away from; you have to continually monitor what you are doing.
My amendment 335 is reasonably self-explanatory. There is a conflict because the Scottish ministers would be very unlikely to impose obligations on themselves, so the amendment would strengthen land management plans for Scottish Government-owned crofting estates. The Scottish ministers would be able to appoint someone in their stead to fulfil their obligations, especially where there is a conflict.
My amendment 340 would allow the commissioner to decide whether one land management plan is required for multiple holdings or whether each holding should have an individual plan. Although it is likely that an owner would have one plan, there are maybe situations in which the landholdings are very different, and different plans are in place. Amendment 340 works with Mercedes Villalba’s amendments where non-contiguous holdings have a cumulative effect.
As no other member wishes to speak, I will say a few words and maybe ask a few questions.
Amendment 23, in the name of Tim Eagle, states that new management plans do not have to be produced until a year after purchase. I wonder whether the cabinet secretary will support that, given that Glen Prosen was purchased in 2022, and there is still no management plan for it. I understand the need for that requirement, but I am not sure the Government has a great record in that regard.
On the duration of management plans, I agree with Tim Eagle that 20 years is probably more reasonable, because land management, especially basic land management, takes a long time. I think that the timescales for forest management plans are even longer than that, so 20 years seems entirely reasonable.
We heard about the cost of production in our evidence sessions; estimates varied, but I think that we settled on a figure in the region of £15,000 to £20,000 for small land management plans. If you have to redo the plan every 10 years, that is a huge burden on relatively small holdings of land, and I have concerns about that.
I listened to Bob Doris talk about plans being accessible, and I have some sympathy with having accessible plans and there being a single place to find them. However, I can see that growing arms and legs. One has only to look at “Who Owns Scotland” to see that the best way of defining land is through a map-based system, but the costs would be huge if there were maps for every area.
Will the member take an intervention?
I will give way in a minute—I will just finish my train of thought.
The cabinet secretary’s view is that she does not want land management plans to become formulaic, and nor does anyone on the committee. However, I am very concerned that, if an online format is used, the plans will become formulaic in order to fit the website that they go on.
Mr Doris, did you want to come in?
My apologies, convener—I did not want to interrupt your train of thought. I am glad that you arrived at your destination.
I will just take this opportunity to highlight my amendment 31 in group 7, which is associated with amendments 16 and 17, and seeks to give the Scottish Government the power though regulations to knit all of this together and make it work in a proportionate way. I should have mentioned that in the debate on group 2, but I did not.
I will also say to the convener that there is a policy intent here, and I will listen with interest to what the Scottish Government says in relation to this. There are many ways to skin a cat. The policy intent is that the plans must be publicly accessible, not simply available. Finding a plan should not be burdensome, just as it should not be burdensome for the landowner to produce it.
I thank the member for that. Just for clarity, I should say that, in relation to the accessibility of land management plans, Forestry and Land Scotland probably provides a perfect example when we talk about having a website where you can go straight to a map and find out what is happening in a particular area and when all the felling is going to happen. If you can find that, please tell me where it is, because I cannot. I just think that this could grow arms and legs and become incredibly expensive, and I would like to know more about those issues before I can support the amendment.
My other slight amusement relates to the amendments lodged by Ariane Burgess. The member can correct me if I am wrong, but I think that one of those amendments provides that the purchaser of an estate will have to adopt the plan of the previous owner. That made me smile, because if that were the case, it would mean that the Scottish Government would be letting grouse shooting happen at Glen Prosen.
Is that what you intend, Ariane? It might well be that a purchaser adopting the plan of the previous owner is not what you intended. Do you want to intervene?
Thank you for bringing that up, convener. That is not the intention of the amendment. I will explain what we are trying to do with it.
It is about creating land management plans that adhere to the need to address the climate and nature emergency, which is what everything, including the Agriculture and Rural Communities (Scotland) Act 2024 and the Natural Environment (Scotland) Bill, is pushing us towards. We will—we hope—have plans that help us meet our 2045 climate targets and address the 30 by 30 commitment to having 30 per cent of Scotland’s land and sea protected by 2030, which is not very far away.
In that context, the amendment is about trying to ensure that plans do not chop and change and are about long-term action on the ground in relation to things such as peatland restoration, forestry and conservation. That is the intention, convener.
I hear what you are saying, Ariane. However, my concern is that a purchaser adopting the plan of a previous owner might not be a rationale for success. For example, an estate just south of Aviemore was planted with trees, but they have all died, because they were not planted in a suitable location. If that were to be in the management plan, you would be tying the next owner to planting more trees there, just so that they could die. I do not think that those things necessarily tie in.
It would also adversely affect people who wished to buy. For example, we visited what had been a sporting estate south of Perthshire—I cannot remember its name—where the new owners had stopped all the sporting and were planting trees, creating a wind farm and fencing out all the deer, with the aim of meeting the target. Again, had they been tied into sticking to the previous land management plan, none of that would have been possible.
Mr Doris, did you want to come in?
I am sure that you know this already, convener, but I want to draw attention to my amendment 32 in group 7, which looks specifically at the transfer of land from one owner to another and appropriate transitional arrangements. I hope that I will get your support for it when we reach group 7.
I will consider that amendment when we get to it, Mr Doris. I am speaking to Ariane Burgess’s amendments in this group, about which I have concerns.
Finally, on a point of clarification, I believe that 20 years is a reasonable figure when it comes to land management plans, because it is a long-term figure. However, if the committee is not minded to support that proposal, I would find it easier to support Rhoda Grant’s amendment on 10-year plans, instead of supporting plans of five years, which, in the scheme of land management, is virtually the blink of an eye.
On that note, I will end what I am saying. As no other committee member wants to say anything, I hand over to the cabinet secretary.
I thank colleagues around the table for their engagement on the bill more widely, but particularly on the matters that we are discussing in this group in relation to the process for and implementation of land management plans.
I welcome amendment 20, lodged by Bob Doris, which looks to require specifically that regulations ensure that landowners engage with
“tenants, crofters and small landholders with rights associated with the land on the development of, and significant changes to,”
land management plans. That was always going to be the intention of the regulations, so I am happy with that amendment, which makes things more explicit.
10:30Amendment 33 from Bob Doris and amendment 10 from Tim Eagle seek additional guidance on how landowners will comply with their land management plan obligations under the regulations. As it was always the intention for there to be additional guidance, I am happy for that to be made explicit in the bill.
For drafting reasons, however, I ask Bob Doris and Tim Eagle not to move their amendments, and I am happy to work with them ahead of stage 3 to produce amendments that meet the stated aims in both. Each takes a different view on how guidance must be produced, what it should cover and who should produce it; one suggests Scottish ministers, while the other suggests the new commissioner. I agree that the content of both the amendments should be covered in further regulations or in guidance, and I will consider how best that can be reflected in the bill and whether that responsibility should indeed lie with ministers or with the commissioner.
Amendments 21 and 315, on the proposed timescales for the review of land management plans, seek to increase the intervals of reporting. Ariane Burgess’s amendments in this group seek to introduce a new plan period of 20 years, with a review and a report every five years. I do, of course, understand the rationale for that, which is to encourage plans to set out activity for the next 20 years. However, the bill already requires plans to set out a long-term vision, and it is appropriate for guidance and regulations to set out more detail of what that means, including the timespan that the plan should cover.
In its stage 1 report, the Net Zero, Energy and Transport Committee noted that the five-year reporting cycle that we have set out seeks
“to strike a balance between ensuring plans remain current and not imposing unrealistic or unhelpful obligations on landowners.”
To me, that indicates that what we have set out does strike the right balance, and to that end, I ask members not to support amendment 21 from Tim Eagle, amendment 315 from Rhoda Grant or amendments 311, 313, 314, 316 and 337 from Ariane Burgess.
Just so that I understand, you are proposing that we stick with a five-year management plan cycle.
That would be for review of the plan, not its duration. As I have set out in my comments, we would look to regulations and further guidance to set out what the overall duration of the plan would look like. Hence, I feel that we have struck the right balance in having the review every five years.
I will be very careful not to make this into a conversation, as I am sure that I will disallow conversations later in my role as convener, but can you clarify your thought process and what you think the duration of a plan should be? It is fine to say that you will come to it later, but do you think that it should be 10 or 20 years?
It is not for me to set that out right now, because we would need to do more work on the matter and have more engagement across the piece. In relation to what Rhoda Grant and Ariane Burgess have proposed, I feel that there is an agreement to be reached between us, but I do not think that fixing this in primary legislation is the way to do it.
Amendments 390, 18, 391, 19, 392 and 396 from Tim Eagle look to do away altogether with the requirement for regulations to provide for obligations to ensure that there are land management plans and engagement with communities on them. They seek to require regulations only to provide that landowners ensure that they engage with a restricted category of persons—and only on the development of plans, not on significant changes to them—and they also seek to introduce in regulations an ability for landowners to report members of the community. I feel that those amendments are against the spirit of what the bill is looking to achieve, and I ask members not to support them.
I also recommend opposing amendment 340 from Rhoda Grant.
Will the cabinet secretary give way?
Yes.
I have been listening carefully, but I would say that amendment 391 seeks more to define what a community is by saying that it is in “the vicinity” of where a land management plan is being formulated. Does the cabinet secretary not feel that, if there is no definition, it could be left open to campaign groups, for instance, to put in views on a land management plan, even though they were not affected, because they did not live in the vicinity of the area under discussion?
But how would you go on to define that? It becomes trickier when you try to do the opposite and impose too much of a definition. That is why I am asking for amendment 391 not to be supported.
Having set out why I do not believe some of the previous amendments should be supported, I turn to amendment 340, in the name of Rhoda Grant, which is supported by Mercedes Villalba. It would allow the land and communities commissioner to advise a landowner with multiple landholdings in scope on whether a combined plan was appropriate for those holdings or whether they should have separate plans. I understand that, ultimately, the amendment supports amendments that would bring in aggregate landholdings across Scotland, but I do not see a requirement for amendment 340. Regulations will make provision for owners of single and composite holdings to ensure that there is a land management plan and that there is engagement with communities.
Amendment 23 from Tim Eagle and amendment 317 from Ariane Burgess deal in different ways with the issue of a new owner of an in-scope landholding. I appreciate the need for clarity that has been suggested on this issue; however, as Bob Doris has already highlighted in the debate, amendment 32 in group 7 is a more suitable way of dealing with that. That amendment would allow the Scottish Government to set out, in regulations, the detailed requirements of how landowners must comply with their obligations in relation to land management plans, including in circumstances in which the ownership of that land is transferred. In relation to that, future regulations could provide the owner with a grace period of a year, in which they would have the option either to keep most of the existing plan or to consult on a new one.
I agree with Bob Doris that much of that detail is best placed in future regulations and developed with the benefit of consultation. It is appropriate that the bill does not prescribe the detail of the manner in which the obligation in proposed new section 44B(1) to the 2016 act, on land management plans, must be complied with. That is why I ask members not to support amendments 23 and 317, and to support amendment 32 in group 7, when it arrives.
Amendment 17 seeks to ensure that all land management plans are publicly available in a single portal. Although I appreciate and agree with the intent behind the amendment, I cannot support it as drafted, as it would put a requirement on a landowner to ensure that a public body took action. Instead, the landowner should be required only to share the land management plan or to make it available, and the requirement for publication on the portal should sit with the public body. I am happy to work with Bob Doris ahead of stage 3 to ensure that we get that amendment right.
Amendment 16, which has also been lodged by Bob Doris, would insert the word “accessible” into the proposed new section 44B to the 2016 act, requiring landowners to ensure that there is a publicly available land management plan in relation to the land. I am concerned that the amendment does not provide sufficient detail or clarity on what exactly is to be “accessible”. Does the word relate to the language used in the plan or is it a requirement to ensure that the plan can be easily obtained? I appreciate the reasoning behind amendment 16, but I ask Bob Doris not to move it, and I will be happy to work with him ahead of stage 3 to ensure that we get the drafting right.
Rhoda Grant’s amendment 312 overcomplicates the process by seeking to introduce a requirement that land management plans be made in a format specified by Scottish ministers. We will already have powers, through proposed new section 44A of the 2016 act, to set out further detail relating to land management plans, including the information that they have to contain. Amendment 312 is therefore unnecessary, and I ask members not to support it.
Amendment 335 seeks to require that Scottish ministers appoint an independent person to complete the land management plan for crofting estates that ministers own. So far, we have heard no evidence to suggest that that view is shared by crofters on Scottish Government-owned estates, nor have concerns been raised directly by the Crofting Commission or the Scottish Crofting Federation. We already exercise our land management functions in a transparent, accountable and inclusive way, which brings significant social, economic and environmental benefit for rural communities.
I have heard some concerns in that regard. Is the cabinet secretary willing to look at them and discuss the issue ahead of stage 3, to see whether we can find a way that gives people comfort?
I would be happy to have that further discussion with the member. As I have said, no concern has been raised with me directly, which is why I was wondering why the amendment had been lodged.
It would be important for somebody acting on behalf of Scottish ministers to engage in the same way that we would expect of any other large landowner, instead of our expecting a separate person to take on that responsibility. We engage with our tenants and local communities when we develop long-term proposals on crofting estates and gather information on that, and putting that duty on to an independent person or an external party instead of the Scottish Government would amount to an information transfer process, from the Scottish Government to someone else, for the purposes of writing a plan. Such a move would have resource implications, too. It is also important that we undertake our own engagement with tenants and crofting communities on the crofting estates.
For those reasons, I ask members not to support amendment 335. Regardless of that, though, I want to pick up that conversation with Rhoda Grant and get more of an understanding about some of the concerns that she has heard.
Lastly, I urge members not to support Ariane Burgess’s amendment 338, which seeks to place an obligation on the owner of land to implement the land management plan. I have concerns about that, as land management plans are not necessarily intended to control how land is used or managed but to provide greater transparency and engagement on that. I offer to work with Ariane Burgess ahead of stage 3 to see whether we can bring forward an alternative amendment that, ultimately, has the same aim. For example, it could require a landowner to set out in the review of a plan any progress that has been made on the implementation of the actions set out in that or previous plans.
I call Tim Eagle to wind up and to press or withdraw amendment 10.
I was not going to make much of a closing statement, other than to thank the cabinet secretary for her responses and to say that I will take them on board. In light of what she has said about working with me as we move towards stage 3, I will not press amendment 10.
Amendment 10, by agreement, withdrawn.
As we are just about to go into the next phase of quite a long debate, I propose that we have a nine-minute break, and I ask people to be back here at 10.50. That is my military background coming out.
10:41 Meeting suspended.
Welcome back.
Amendment 11, in the name of Michael Matheson, is grouped with amendments 11, 22, 34, 398 to 400, 35 to 38, 3, 39 to 41, 4, 401, 42, 402 to 404, 43 to 45, 343, 46 to 49, 49A, 49B, 405, 50, 406, 344, 104 to 106, 109 and 110. I remind members of the pre-emptions and direct alternatives in the group, as set out in the groupings. I call Michael Matheson to speak to and move amendment 11 and other amendments in the group.
Amendment 11, alongside several other amendments in the group, seeks to explore some of the issues with sites of community significance.
The cabinet secretary will recognise that land reform encompasses the urban and rural context. The bill as drafted does not cover urban Scotland and other settlement types unless they are situated on a large landholding. Consequently, the bill does not provide a mechanism to ensure that the public interest is considered in urban land management and/or urban land sales. I am aware that some 67 per cent of the respondents to the Scottish Government’s consultation were in favour of the inclusion of urban Scotland in the bill’s provisions. Therefore, I am keen to explore with the cabinet secretary how we can try to address some of the issues, particularly the pressing issues in urban and peri-urban areas. At times, they can be blighted by vacant or derelict land, absentee owners, or corporate landowners who use the land as land banks. In drawing this together, I am conscious of some of the potential complexities, which is why the amendments are probing amendments that seek the Government’s view on how it would deal with the issue.
I recognise that there are particular challenges with identifying sites of community significance. My amendments 42, 121 and 139 seek to provide some sort of structure around how sites of community significance could be identified. Given the pressing nature of the issue, and the issues that some of our urban communities face with such sites, I would be keen to hear how the Scottish Government believes that it could be addressed more effectively.
Will the member take an intervention?
Of course. I will just finish my point.
I would be keen to understand whether there is scope for the bill to include some sort of provision to address the issue.
I agree with a lot of what the deputy convener has said about urban Scotland, where much more needs to be done to get derelict sites out of being derelict and back into use. As we took evidence during the past few months, we never took evidence on urban Scotland and some of these issues, because they were not really part of the scope of the bill. Would it be right for us to open that up now, when we have not taken any evidence? In hindsight—we all have 20:20 hindsight—was it a mistake that those issues in urban Scotland were not part of the bill that was introduced?
Although we never explored that in detail, it will always be the case at stage 2 that amendments will come forward on areas that we have not fully explored—including, for example, electricity infrastructure. [Laughter.] However, that is not to say that such issues should not be explored.
I largely drafted these amendments—I should thank Community Land Scotland for its assistance—to try to explore the issue further and to see whether there is a way in which we can address pressing issues regarding land banking, derelict land and absentee landlords who hold land in urban areas that communities feel is significant and of value and which they would like something to be done about. These amendments are framed in a way that tries to provide some form of structure in that regard, notwithstanding the challenges that there could be in implementing it.
There is an ability under compulsory purchase provisions for the Government to compulsorily purchase areas of land where there is a significant community interest. Has the member had discussions with the Government to find out whether it feels that those provisions are sufficient and, therefore, whether these amendments are needed? To my knowledge, it appears that the Government and councils have never used that provision in the past.
The existing powers are not sufficient, which is why some communities that would like something to be done about areas of land that they believe are sites of community significance would like to be in a position to be able to progress that. As I mentioned, I am trying with amendments 42, 121 and 139 to provide some structure to the organisations that could initiate the process of doing something about that. The amendments would go beyond the Scottish ministers and allow community-based organisations to be engaged in and initiate that process. I am trying to give a bit more scope for local communities to be the initiator in identifying sites of community significance. I am conscious that, as in any amendment, when you start to list things, you will inevitably end up leaving things out. However, I want to open the issue up, and it needs to be explored further, because the existing arrangements are not working effectively.
I am listening with interest. I am an urban MSP, and we can all think of sites that would benefit from additional provisions. Do local place plans have a role here? Local place plans are developed by the planning authority at a local level in consultation with the community. If a community has identified areas of particular community significance that require action, could that, in theory, be a trigger for additional requirements in relation to land management plans? I am just thinking about that as I hear more of what you say, deputy convener.
That could be a trigger. You will be aware of the challenges that relate to the number of community place plans that have been put in place in different local authority areas, which is very limited. Equally, once a place plan has been put in place, it may be that a new area of land is identified by that local community as being of significance to the community. The intention behind my amendments is to provide a mechanism that would allow the local community to trigger that as an area of significance.
I recognise the complexity and the challenges that are associated with this issue, which is why I am keen to hear the Scottish Government’s views on the matter and how it believes that the existing system could be developed further. In probing the issue with these amendments, I would also like to know whether there is scope—if not at this stage, then at stage 3—to address some of the issues regarding urban land reform.
I move amendment 11.
11:00
I call Bob Doris to speak to amendment 22 and other amendments in the group.
I will restrict myself to speaking about amendment 22 and you will be pleased to hear that I will speak briefly.
Regarding land management plans, section 44A gives ministers the power to impose obligations on large landholdings and section 44D specifies the land in relation to which those obligations will be imposed. Amendment 22 would ensure that, if the Scottish ministers decided, for any reason, to exclude certain types of land that would otherwise have obligations placed on them, they
“must, when laying the regulations, publish a statement setting out their reasons for not imposing the obligations on the land”.
I met representatives of Community Land Scotland who thought that that would be an important addition. The amendment would simply put the need for clarity and transparency into the legislation.
Having spoken to the cabinet secretary ahead of lodging amendment 22, I was reassured that the Scottish Government would provide a rationale as a matter of course, without statutory compulsion to do so. That said, amendment 22 looks to future proof the matter, should other Governments take a different approach.
I ask members to support amendment 22.
I invite the cabinet secretary to speak to amendment 34 and other amendments in the group.
I appreciate that there are many amendments in the group. I will try to get through them as best I can and will speak to the amendments in my name before turning to some of the others.
This debate is important because it goes to the heart of what I think is a fundamental policy decision in the bill. It is one that we gave a great deal of consideration to prior to the introduction of the bill, because we want to ensure that the proposals can be applied as widely as possible.
In the bill as introduced, community engagement obligations were to apply to owners of large landholdings of more than 3,000 hectares so that there would not be a disproportionate impact on small businesses, such as many farms. I did not want to disadvantage those businesses relative to larger landholdings that would have more staff and more capacity.
These are new proposals and I have a responsibility, in my role as cabinet secretary, to ensure that they are proportionate and justifiable. At stage 1, the committee said that it saw some merit in aligning the size of thresholds across the bill in order to create policy cohesion and, importantly, to give clarity to stakeholders. I said in my response to those recommendations that I also saw some merit in that, both because of the simplicity and because it would allow all the proposals to work together.
Amendment 38 would therefore lower the threshold relating to land on which community obligations might be imposed from 3,000 to 1,000 hectares. That would align the thresholds across land management plans, pre-notification and transfer test provisions and would, in essence, cover about 55 per cent Scotland’s land.
As members know, the bill already gives the Government flexibility to seek to alter the thresholds, based on experience. We should not forget that these are new and ambitious provisions and it is right that the Government should review their operation to ensure that they are having the intended effect.
Amendments 34, 36, 40 and 50 are largely consequential to amendment 38. Amendment 40 would remove the separate category of landholdings exceeding 1,000 hectares on inhabited islands, given that the threshold for all landholdings would be lowered to 1,000 hectares.
I turn to amendment 49. The bill as introduced requires that land that is owned by the same person, or by connected persons, must share a boundary in order to be considered as a holding that counts towards the thresholds. During stage 1, the Scottish Land Commission noted that there might be a number of titles where public infrastructure, including railways and roads, will sever large landholdings, dividing them into smaller areas, and that those individual landholdings might then fall below the threshold that we had set out. The SLC recommended that any land that is split by a railway or other public infrastructure should be treated as a single holding and the committee also recommended that approach in its report, noting that there could otherwise be a loophole. I share the committee’s view and consider disregarding any such splitting of landholdings to be proportionate and justifiable for the purpose of defining the threshold.
The amendment does not focus directly on public infrastructure because there could be factors other than train tracks and public roads, including private roads held by other landowners, to which similar considerations would apply. Following consideration of the width of railways and road infrastructure, amendment 49 allows for non-contiguous areas of land to form a holding, provided that they are within 250m of each other. That allows us to address a known issue, while still being in line with the evidence base that we have that concentration of ownership can impact local communities.
The evidence that the committee heard identified that there are quite a few landowners with holdings smaller than 1,000 hectares that are not contiguous, which is the point that you made. It is quite arbitrary to define “contiguous” as being “within 250 metres of”. Would the cabinet secretary consider amending that definition at stage 3 to include holdings that share the same machinery, management and labour? It is what the Scottish Government has done before in relation to agricultural subsidies, in order to identify whether there are two separate holdings rather than two holdings working together. Would you consider that?
Again, I would have to fully understand that and see what the implications might be, but I am more than happy to have that conversation with the convener between stages 2 and 3. I still ask that members support my amendments in the meantime.
The final amendments in the group—amendments 45, 46 and 48—concern how composite holdings are defined in the bill. They are technical amendments that strengthen the definition of a composite holding and ensure that multiple holdings that are owned by connected persons form together to comprise composite holdings in the same way in which holdings that are owned by the same person form a single holding.
Those amendments will also support the introduction of non-contiguous holdings, which I have just spoken about, in relation to amendment 49. I therefore recommend that the committee supports the amendments in my name.
At the committee stage, we heard evidence about the ownership of landholdings—for example, a unit trust—being split into small packets, even though they are managed as one. Will those amendments cover that?
If you are talking about aggregate holdings—holdings across Scotland that potentially fall under the thresholds—they would not be caught by the measures. Essentially, we need to make sure that we have the evidence base for that and that we address the impact of the concentration of land ownership. The amendments that I am bringing forward do not cover aggregate holdings, because those would be across Scotland.
For example, we heard from Gresham House, where sites were managed as one but there were multiple owners within that one site. Will what you are bringing forward address that situation?
The definitions for connected persons are already set out in the bill. I am more than happy to have a discussion with the member ahead of stage 3 if there are particular issues in relation to the amendments that I have brought forward that he feels are not being addressed. I am not sure whether we are talking at cross purposes in terms of what we are trying to set out, but my amendments do not cover aggregate holdings. I do not know whether that is the point that the member is trying to bring forward.
As Michael Matheson outlined, the purpose of amendments 11, 35, 42 and 106 is to extend the land to which community engagement obligations may be imposed to include sites of community significance.
I am keen to ensure that the bill is as simple and clear to understand as possible but, as I have set out today, the measures that we introduce need to be proportionate and justifiable. Following Scottish Land Commission recommendations, the bill focuses on addressing issues with the concentration of land ownership in rural areas. That is why the provisions apply to those larger landholdings. If we were to introduce sites of community significance, that would significantly complicate the provisions that we have set out in the bill. It would invent a whole new designation process that means that land anywhere in Scotland could be subject to provisions in the bill that were intended only for large landholdings.
The definition of land that is of community significance is widely recognised. One thing that is missing from the bill is urban land reform. Michael Matheson’s amendments are proportionate and would give people in urban and, indeed, rural areas an opportunity to do something about bad management of land that is of significance to them.
As far as I am aware, there is no legal definition of what that would mean. We would be inserting a legal definition of something, which would have wide-reaching ramifications beyond what we have set out in the bill. I am about to come on to a few other points and issues in relation to that.
A wider point has been raised about measures that are being taken in the urban environment. It is important to remember that the bill was intended to deal with a specific problem that was identified by the Scottish Land Commission, which was about the issue of the concentration of land ownership, particularly in rural Scotland. However, that is not to say that no other work is going on to address some of those issues in the urban environment. Monica Lennon raised that matter with me during stage 1 consideration of the bill.
I am about to come on to the community right-to-buy powers and the on-going review of them. Significant work has also been taking place in relation to compulsory purchase orders and compulsory sales orders. All those different mechanisms will help to deal with some of the issues in the urban environment. I do not think that we can address those issues in the bill—in this legislative vehicle—alone.
Different stakeholders have voiced support for the concept of sites of community significance, but they have done so in different ways. Some have sought to expand the scope of the bill; others have sought to limit it and to require communities to undertake more work before the provisions in the bill could apply.
The process of assigning sites as being of community significance would be complex, and the enforcement and monitoring of any registration could have significant costs for the Scottish Government, which would have to establish a way to register the sites, and for local authorities, which might be required to be involved, too. There has not been any impact assessment to consider how many more sites could be brought into scope and what the costs of that could be for landowners and the public sector.
The benefits of including sites of community significance are unclear, and how the lotting provisions and transfer test would be applied to such sites is also unclear. There is an existing process through which urban and rural communities can register a community interest in land through the community right-to-buy processes in part 2 of the Land Reform (Scotland) Act 2003. An additional process could add significant cost and complexity for both the landholder and the public purse, with unclear and limited benefit.
In rural areas, there is a need to add an existing route to the community right-to-buy process, which is why we have introduced the notification measures in the bill, but we do not believe that that would be proportionate when there are no issues of concentrated ownership. In fact, if we were to expand the provisions of the bill to apply beyond the target area of large landholdings, that could risk taking the bill away from the evidence base on which we made the proposals.
There would also be issues with legislating in that space before we have been able to consider the findings of the community right-to-buy review, which is still under way and is due to report by the end of this year. I appreciate the concerns that were raised by the committee in relation to that review. If legislative changes are required as a result of that review, we would be happy to propose the right legislative vehicle to address those.
Although I appreciate the approach that Michael Matheson has taken, I believe that it would take the measures in the bill away from what they were intended to do and beyond the issues that they were designed to address. I ask him not to press amendment 11 or move amendments 35, 42 and 106.
Through amendment 22, Bob Doris proposes that the Scottish ministers publish a statement when they are exempting any land that would otherwise be subject to future regulations that require landowners to have a land management plan. As Bob Doris has outlined, and as I said in the conversations that we have had, I would expect the Government to do that as a matter of course. I am always nervous about adding requirements to a bill that I do not believe are necessary, but I am happy to support amendment 22, although I might revisit it at stage 3 if any unintended consequences are found or drafting issues are identified.
Tim Eagle’s linked amendments 398, 399, 402, 403 and 406 seek to disapply the community engagement obligations in certain circumstances, including when land is used mainly for agricultural purposes or the owner has not engaged with a community body in the past five years. Rachael Hamilton’s amendments 400 and 404 similarly seek to disapply the obligations when the land is transferred to a new entrant to farming or agriculture business.
I am mindful that the obligations and thresholds should be designed to avoid disproportionate duties on small-scale landholdings or smaller farms. That is why I do not propose to lower the threshold below 1,000 hectares, at which level only the largest of farms—1.4 per cent of Scotland’s farms—are expected to be in scope. We will make all efforts to ensure that the community engagement obligations are as straightforward as possible and that they align with other plans and requirements where possible, to minimise duplication. However, I do not believe that it is right to disapply those obligations to as broad a class of land types and landowners as the amendments suggest. That is why I recommend that the amendments should not be supported.
Tim Eagle’s amendments 37, 41 and 44 would remove the bill’s definition of what constitutes a composite holding for the purposes of community engagement obligations and, instead, via amendment 405, leave those definitions to future guidance to be prepared and published by the Scottish Land Commission. I appreciate that there is often quite a lot of discussion in Parliament about what should be in a bill and what should be left to regulations and guidance. In this case, however, it is right that Parliament can consider what constitutes composite holdings in the bill. Those can, of course, be changed by any future regulations, so I ask members not to support the amendments.
11:15Amendment 39 would raise the threshold for land on which community obligations may be imposed from 3,000 to 5,000 hectares. That would dramatically reduce the ambition of the bill, particularly when there has been such widespread support for land management plans and the community engagement obligations, as the committee will have seen when it took evidence on that.
Amendment 401 would increase the percentage of land that forms an island under the current islands criterion to 33 per cent from 25 per cent. As I have outlined, I propose lowering the threshold to 1,000 hectares, which would then remove the islands criterion. That is a sensible compromise and I therefore recommend that the amendments are opposed.
Tim Eagle’s remaining amendments in the group—104, 105 and 110—would remove ministerial powers to modify chapter 2 of the 2016 act by regulations and instead add more restricted powers to modify the chapter. Amendment 110 would stipulate that future regulations could not reduce the number of hectares in section 44D of the 2016 act in relation to the land on which obligations would be imposed.
Mercedes Villalba’s amendment 109 would do almost the complete opposite of what Tim Eagle is trying to do. It would restrict the power to modify chapter 2 of the 2016 act by stipulating that future regulations could not increase the thresholds for land management plans and community engagement obligations.
Both approaches would substantially restrict Parliament’s future flexibility. Although I probably lean more towards supporting the intent behind Mercedes Villalba’s amendment than Tim Eagle’s—I know that it was worth a try—as a parliamentarian, I am mindful of constraining the actions of future Parliaments, which is why I do not support the amendments.
It sounds as though you are saying that you support the intention behind amendment 109. I gather that the bill sets a particular direction of travel towards diversifying ownership, so it would make sense to prevent any further increases so that we do not go back on ourselves. Could an amendment be lodged to secure that direction of travel, which I think we agreed on, ahead of stage 3?
As I have outlined, we are probably not too far apart in our thinking, but these are new measures that we are introducing so, being responsible in our role, it is only right that we monitor their effectiveness and look at any potential impacts. I do not want to tie the hands of any future Parliaments in relation to that, which is why I propose not to support the amendment. I am happy to have further conversations with Mercedes Villalba after stage 2 as we look towards stage 3, but I am not minded to support amendment 109 at this stage.
Ariane Burgess’s amendments 3 and 4 would lower the threshold for land on which community obligations might be imposed to 500 hectares. For the reasons that I outlined earlier, I believe that that is too low. I want to ensure that the proposals are justified in relation to the policy aim of not having a disproportionate impact on smaller landholdings. The amendments would impose costs on a much more significant set of landowners. As I outlined in my response to Mercedes Villalba, the provisions in the bill are new and it is important that the Government can review and monitor how they are being implemented. We would have the ability to seek to adjust the thresholds in future if that is required. That is why I oppose the amendments.
Does that mean that you are not ruling out a future reduction in the threshold to 500 hectares?
I am not ruling anything in or out at this stage, because we have not yet introduced a threshold of 1,000 hectares. It is important that we review and monitor how that is implemented and see how it is operating once it has been introduced.
Mercedes Villalba’s amendments 43 and 47 would remove the requirements for single landholdings to be a contiguous area of land and for composite holdings to be contiguous with each other. That would mean that, if a landowner owns more than 1,000 hectares in total across all their Scottish landholdings, the provisions in the bill would apply.
I appreciate that some members and stakeholders more broadly want landholdings where there is a larger distance between holdings to be brought into scope. I have sympathy with that, but the evidence base that underpins the bill as introduced focuses on the concentration of ownership and its impact on local communities. We do not have the evidence base to justify measures that tackle aggregate holdings across Scotland, as I outlined in my response to Douglas Lumsden.
Will the cabinet secretary take an intervention?
I will just finish the point that I have started.
Mark Ruskell’s amendments 49A and 49B would include non-contiguous areas of land, provided that they are within 10 miles of each other. That figure is much larger than the 250m figure that I suggested, which was based on the recommendations of the Net Zero, Energy and Transport Committee and the Scottish Land Commission. However, I am mindful that our evidence is focused on nearby landholdings. Broadly, the greater the distance that we use to allow non-contiguous landholdings to be treated as contiguous, the further the intervention moves away from the original evidence base, as I have outlined today.
I would like to think that there could be some middle ground in relation to that. Mark Ruskell might well touch on some examples of particular issues that he would like to address that he has referenced previously, so I would like to work with him on those amendments.
I will go back to Mercedes Villalba for her intervention.
It is on your point about not having the evidence base to address aggregate landholdings. Will you say a little more about that? Is it not the case that the national concentration of land ownership was recognised as an issue by the Scottish Government, formed part of the consultation for the bill, but is now not being included? That seems to go against research and findings from the Scottish Land Commission. It caught my attention when you said that there is no evidence base—it is not clear to me what that statement is based on.
It is based on the evidence that has been provided by the Scottish Land Commission. The issue that we are ultimately trying to tackle is the concentration of land ownership and the impacts that it can have on local communities—it means that there is a lack of diversity and of available land supply. Those are the issues that we are directly trying to address. That is not to say that I am not sympathetic to the issues that Mercedes Villalba is trying to address, but we do not have the evidence base to do that. If somebody owns land in other parts of Scotland that falls below the threshold, we do not have the evidence base to show the impact of that on the local community near that area of land, and if it falls below that threshold, it might not be relevant anyway.
Does that mean that the Government’s position has changed and that you no longer recognise national concentration of land ownership to be a problem for Scotland?
Our position has not changed throughout the discussions that we have had on the bill. The key point that we are trying to address, and all the measures that have been introduced, are based on the Scottish Land Commission’s recommendations on addressing the issues that are associated with the concentration of land ownership in Scotland and the impact that it has on local communities. It is with large landholdings in a specific area that we see some of the issues arise, and that is the point that we are trying to address with the measures in the bill. Our position has not changed.
I seek clarity on that position. On national concentration of land ownership—
Sorry, Mercedes, but can I just come in here? It is always very difficult at stage 2 to make sure that there is an open debate, but it does not need to be a conversation across the table. I am gently pointing you to ask a question, which might be followed up by another question, through me, and then you can address the issues when you get to speak. Otherwise, I fear that we could be here until Christmas, which might be a good thing, but maybe not.
My question is on that last point. Does the Scottish Government recognise national concentration of land ownership as a problem?
We recognise concentration of land ownership as a problem. The policy aim and ultimate objective here is to address the effect of the concentration of land ownership and its impact on local communities and on the supply of land to local communities. That is why we have set out the measures in the bill and why we are directly trying to address those problems.
To pick up on the point about national concentration of land ownership that Mercedes Villalba has been raising, if the bill is not the legislative vehicle to address that, what assurances can the cabinet secretary give the Parliament that we will address the national concentration of land ownership and the issue of aggregate landholders, because that has an effect on communities? I recognise that the bill is about land that is directly affecting a community of place, but we need to find a way to address the effect of the national concentration of land ownership.
We are addressing that through the measures that we have introduced in the bill by, for example, looking at the management of our land more widely and making that more transparent, and through the transfer test and our lotting proposals. Ultimately, that is about trying to diversify land supply and land ownership in Scotland. That is why we have prohibitions in place so that land cannot all go to one owner. Does the bill address, or would it ever have been able to address, the significant issues in relation to the management and ownership of land in Scotland? No, but we have to ensure that we have an evidential basis for the measures that we introduce, so that they withstand any challenge that could come our way.
I have mentioned other work that is going on that could potentially help in the urban environment. There is also the community right to buy review. The bill is one step right now. It cannot fix all the problems, but we are introducing new measures and policies that I hope will have a significant impact and will be another step on the land reform journey.
I will comment briefly on Douglas Lumsden’s amendments 343 and 344. As I said when I commented on similar amendments from Douglas Lumsden in group 1, the amendments relate to a matter of interest in my constituency. I make it clear that I am here in my capacity as a minister of the Scottish Government. The position that I am presenting reflects the collective view of the Scottish Government and concerns a matter of law and policy for which I have ministerial responsibility.
Separately, and in line with the Scottish ministerial code, I have made my views and those of my constituents known to the responsible minister in the appropriate way. However, the issue under discussion today is distinct from that constituency interest, and my contributions today should therefore be understood as reflecting the Government’s position and not a personal or constituency-specific stance. Having said that, I am not sure how Douglas Lumsden’s amendments would fit with the current drafting of the bill, which is why I recommend that members oppose the amendments at this stage.
I call Tim Eagle to speak to amendment 398 and other amendments in the group.
I fear that I will take longer than Bob Doris, but I will be quicker than the cabinet secretary. I will try my best.
I appreciate the cabinet secretary’s thoughts on my amendments 398 and 402. However, I see a significant difference between an estate with multiple portfolios and an agricultural holding, which might be just an upland sheep farm. I have a genuine concern about the potential consequences for those who are purely in the agricultural sector, for whom the burden of a land management plan would be too much.
My amendments 399 and 403 seek to address concerns relating to the thresholds of land. The thresholds seem a bit arbitrary as they are not based on evidence of particular outcomes or dependent on a particular scale. For community engagement, there should be additional criteria that are markers for what success looks like—in effect, there should be a threshold-plus test. Amendment 403 would add the additional criteria that
“there is not a disclosure statement or management plan in relation to the land”
and that
“the owner has not engaged with a community body in the vicinity of the land in relation to the management of the land within the last 5 years.”
Amendment 37 is consequential to amendment 41. On amendments 41 and 44, I note that the bill says that obligations may be imposed on land that is either a single holding or a composite holding. A composite holding is one that consists of any number of single holdings. I do not believe that it is rational to include composite holdings. We are concerned that they could include holdings that are located nowhere near each other and have widely different land management requirements. Amendment 41 therefore seeks to delete “composite holding”, and amendment 44 seeks to delete all references to composite holdings in the section.
NFUS gave the example that, if a landowner is selling or transferring an area of land in the Highlands, it has no relevance to another landholding in East Lothian. It will not impact the same community and it should therefore not be included.
In my speech in the stage 1 debate on the bill, I asked why size rather than value had been chosen as a key measure for who will be impacted by the bill. In my mind, there is a huge difference between 3,000 hectares of moorland and 3,000 hectares of prime agricultural land. Although I am not sure that I fully understand the rationale for using size as the measure, my amendment 39 seeks to remedy the issue by increasing the threshold from 3,000 hectares to 5,000 hectares.
11:30Scottish Land & Estates has also disputed the idea of using the size of an estate as an indicator of adverse impacts on Scotland. It said:
“There appears to be no evidence that there is detrimental impact on Scotland due to the scale of land holdings. The Scottish Land Commission’s own evidence points to the issue being potentially one of concentrated land ownership in specific areas, rather than scale itself.”
In addition, NFU Scotland believes that the bill could have “significant implications” for Scottish agriculture. It expressed concern about the delivery of the bill, saying that the
“proposals around land market regulation have the potential to severely compromise farming. Economies of scale have meant that farms have to get bigger to survive.”
I am seriously alarmed by and absolutely opposed to the cabinet secretary’s and Ariane Burgess’s amendments that seek to reduce the threshold figure. This is the very heart of the bill, and to lower the threshold at stage 2 with, as far as I am aware, no prior consultation with stakeholders such as SLE and NFU Scotland is bad law making. Dropping the figure to below 1,000 hectares will catch too many farms and landholdings that, although large in acreage, are not large in income terms.
One farm that would be caught by the new threshold is Tardoes farm, which is a sheep farm in the Muirkirk uplands in east Ayrshire. Cora Cooper, who runs the farm, recently briefed us on the challenges that the farm faces. The farmers are first-generation farmers with 2,023 hectares, and they have a peatland restoration plan to restore 800 hectares of damaged peatland. Cora told me that they are already facing increased costs from Labour’s national insurance rise, that they have a business loan to pay off and that the SNP Government is now planning to impose on the farm a £15,000 administrative burden for a land management plan every five years. They feel that they are doing everything right. Why would we want to penalise them?
Populating the debate and explaining examples is a really good way to proceed. The farm that you describe sounds like a great farm. It sounds as though the farmers already have a plan for what they want to do in the future, including with regard to peatland, and they have a really clear idea about where they are going.
Surely it comes down to the format of the land management plan and the associated guidance. If it was a case of consulting on the land management plan or any access arrangements and their future farm management plan, it sounds to me—because it is a professionally run farm with a farming family at the heart of it—as though all the information is already there. Therefore, a land management plan could be a fairly simple thing to pull together and perhaps the subject of a really exciting conversation with the local community about how it can support and feed into what Cora Cooper and her farm are attempting to do.
That is a good point. I do not know whether you have spoken to Cora—she is very keen to speak to people. My understanding is that she and the whole unit are already very actively involved in the local community. However, they asked us why they are being drawn into the bill’s provisions when they feel that they are already doing everything that the Government is asking them to do, and they made the point that feel that they do not yet have the detail of what the land management plan will include. If it will literally involve a process of bringing together the plans that they already have, you are right that that might not be overly burdensome, but they are not clear about that, which is what they expressed to us. I hope that, over the next few weeks, we will learn that and that we can move forward.
I want to make it clear that that is why consultation and engagement on what the land management plan will include are hugely important. That will be a vital part of the process.
You also raised some examples of the costs that will be associated with the plan. Figures have been set out in the financial memorandum, and the £15,000 figure has been mentioned a couple of times today. However, that was an expected cost for a complex and quite extreme example. Also, it is not as though that would be a recurring cost every five years. Again, we need to consult people and ensure that we get the level of detail right, which is why we have set out the process. I hope that the member recognises that in relation to the amendments that we are considering and our discussions on the bill today.
I take that point on board. I used the £15,000 figure because I understand that it was brought out during the stage 1 evidence. I am also trying to get across the point that some people, particularly upland farmers, are concerned about the bill’s implications for their agricultural units. However, I appreciate the points that the cabinet secretary has made.
On my amendment 401, the proposed threshold for land forming part of an inhabited island is a single or composite holding that “exceeds 1,000 hectares” and
“constitutes more than 25% of the land forming the island.”
We believe that that land size threshold is too small and that it should be increased to 33 per cent.
My amendment 405 addresses our concerns over the use of the term “composite”. The amendment seeks to require the commission to prepare and publish guidance for the purposes of creating clarity on what constitutes a composite holding. In doing so, the commission would be required to consult appropriate persons.
The bill allows ministers to modify section 1 by regulation, and their powers would allow them to change the land that the ability to impose regulation relates to, and also the persons who may report a breach of obligations. We believe that that power is too wide ranging, and amendment 104 proposes to remove those provisions.
My amendment 105 seeks to prevent ministers from being able to lower the land size threshold in future.
My final amendment in the group is amendment 110. The bill allows ministers by regulation to change the land that obligations are imposed on under section 1. Although our first choice is to remove that power, as set out in our amendment 104, we will look to amendment 110 if amendment 104 is unsuccessful, in order to ensure that the land size threshold that is set out in parts of section 1 may not be reduced in future.
I call Douglas Lumsden to speak to Rachael Hamilton’s amendment 400 and other amendments in the group.
Unfortunately, Rachael Hamilton has had to leave to go to another engagement.
If we are serious about food security, rural prosperity and the future of Scotland’s farming, we must be serious about supporting the next generation of farmers. That is what amendments 400 and 404 aim to do. We are trying to remove another hurdle for new entrants to the industry. Amendment 404 would give new entrants the breathing space that they need to get their businesses off the ground without the immediate burden of preparing complex land management plans. For many, the cost and complexity of those plans could be a barrier too far. Young people in the communities deserve a Government that matches their ambition, and we should not be burdening them with red tape from day 1.
I listened very carefully to what the cabinet secretary said about the number of farms that would be caught by the legislation if the threshold was 1,000 hectares—I think that it would be only about 1.3 per cent. The threshold could be brought down by regulation. We therefore want to have protection in the bill for new entrants to farming so that, if the threshold was brought down in future, they would be given a breathing space of 10 years before they had to produce the plan.
Over the years, I have met quite a few young farmers and new entrants to farming, and what has struck me is that they have a lot of energy and a huge amount of vision and passion for what they want to do. Surely, at the heart of it, a land management plan should be a way to articulate that vision and to have that conversation with the surrounding community. I feel that, when people who come from a farming family and are carrying on the work of a relative set off in farming for the first time—when there is that generational shift—they have new and exciting ideas about how they want to take the business forward. Surely the essence of the land management plan is the conversation. The plan should not be considered a threat, red tape or regulation; it should be about getting the community behind you and having a conversation about the future and what is needed.
I agree that a lot of people who come into the industry have that energy and vision, but when people are setting up any new business, whether it is in agriculture or something else, we need to encourage them as much as possible and give them space. That is what amendment 404 seeks to do—to give them a bit more time before they have to go to the expense of producing a land management plan, and to allow them to get their thoughts together on how the land will be used. That is the basis of the amendments.
Convener, do you want me to speak to my amendments in the group as well?
No. We will come to your amendments in a moment. There are other members before you.
I will leave my comments on amendments 400 and 404 at that, convener.
I call Ariane Burgess to speak to amendment 3 and other amendments in the group.
Amendments 3 and 4, alongside amendments in later groups, seek to lower the threshold to 500 hectares. That would bring significantly more land into the scope of the bill, furthering Scotland’s progress on land reform. I recognise that the cabinet secretary said that that could happen at a future date and that the Scottish Government is keen to monitor the situation with the threshold set at 1,000 hectares. However, the Scottish Land Commission’s research suggests that 93 per cent of land sales are for areas that are greater than 500 hectares, so that would be a proportionate change to the threshold.
We have heard that having a threshold of 1,000 hectares would not bring in huge amounts of farmland—I think that the cabinet secretary said that it would be 1.3 per cent. If the threshold was reduced to 500 hectares, for what percentage of farmland would land management plans be required?
As I have just said, the Scottish Land Commission’s research suggests that 93 per cent of land sales are for areas that are greater than 500 hectares, so it would be a proportionate change to the threshold. It would also increase the number of landholdings that we would require to produce land management plans, which would give more communities a voice in the management of local land. We believe that that is at the heart of it.
I am grateful to Mercedes Villalba for her work on thresholds. Over the years, she has bought the issue strongly into the public discourse, and I am grateful that she will support my amendments 3 and 4. I note that the Government’s amendments would reduce the threshold to 1,000 hectares, and I understand that the cabinet secretary has lodged amendments to harmonise the thresholds of 3,000 hectares and 1,000 hectares for simplicity’s sake. I appreciate that it makes sense to have clarity and one threshold for everything.
To go back to our earlier conversation about the national concentration of land ownership, I do not want to put words into her mouth, but I believe that what Mercedes Villalba is trying to get at is the concern about land that is under the threshold being owned by the same landowner but being scattered all over Scotland. We absolutely need to address that and bring it into scope, although not necessarily in the bill. However, I would like to hear the Scottish Government’s assurances about what we can do to address the issue.
I understand all the relevant aspects, such as compulsory sales orders, compulsory purchase orders and the community right to buy review, but we need to address the issue collectively and find a way forward. It is not necessarily about more communities taking ownership of land; it is about how we address the issue of aggregate holdings and, in a way, their power over Scotland.
In relation to Douglas Lumsden’s legitimate concerns about the long-term viability of agriculture in Scotland, will Ariane Burgess join me in encouraging him to look at the research in the proposal for my land ownership and public interest (Scotland) bill, which found that just 3.6 per cent of agricultural landholdings are above the 500 hectare threshold?
I am delighted to join Mercedes Villalba in suggesting that to Douglas Lumsden.
Another interesting aspect that is in play is that the Agriculture and Rural Communities (Scotland) Act 2024, which some of us worked on, requires there to be a whole-farm plan. As my colleague Mark Ruskell pointed out, there is enthusiasm and energy among farmers, but there is also a requirement for whole-farm plans to be produced. The work, data and information are already there. Land management plans will ask for that information to be shared with neighbouring communities so that they can have a say, be involved and feel that they have a connection to what is happening on the land around them.
I call Mercedes Villalba to speak to amendment 43 and other amendments in the group.
I am pleased to speak to amendment 43 and my other amendments in the group. I again thank Community Land Scotland and the Scottish Parliament legislation team for their support in drafting the amendments.
The bill makes it clear that provisions for land management plans, lotting limits and transfer tests will apply to single, composite or contiguous landholdings. As it stands, that means that non-contiguous landholdings that are over the threshold will not be subject to the effects of the bill and that a single owner of multiple holdings that amount to many times the size of the large landholding threshold will be unaffected by the bill. However, the stated purpose of the bill is to address the national concentration of land ownership across Scotland. The Scottish Land Commission found that aggregate holdings and complex ownership structures pose challenges for transparency and applying the bill’s provisions.
11:45My amendments 43 and 47 therefore seek to remove the limitation that holdings must be contiguous, thus removing loopholes around non-contiguous landholdings and ensuring that aggregate landholdings that are over the threshold will be included in the scope of the bill. If the amendments are agreed to, they will ensure that aggregate landholdings are included in the land management plan requirements, prior notification requirements and public interest test requirements, while removing the loophole of landholdings being severed by infrastructure.
The amendments would remove the requirement for landholdings to border each other and ensure that large landowners of multiple holdings across the country are within the scope of the bill. Amendments 43 and 47, taken with amendments 122 and 125 in group 10 and amendments 140 and 145 in group 12, therefore seek to remove loopholes in relation to contiguous landholdings and include aggregate landholdings.
Bob Doris’s amendment 182, which is in group 16, would introduce a duty on Scottish ministers to regularly review the thresholds. It is vital that we future proof the legislation to sustain the direction of travel towards greater diversification of land ownership. My amendment 109 therefore seeks to amend proposed new section 44M of the Land Reform (Scotland) Act 2016 to specify that
“Regulations ... must not increase the number of hectares in area that land must exceed for obligations to be imposed on the land.”
Amendment 109, taken with amendment 133 in group 10 and amendment 171 in group 12, would ensure that thresholds may not be revised upwards.
Labour supports Ariane Burgess’s amendments 3 and 4, which seek to lower the threshold to 500 hectares. I have long campaigned for that and we welcome the Greens’ support for it.
I call Douglas Lumsden to speak to his amendment 343. You do not have to repeat everything that you said when you spoke on behalf of Rachael Hamilton, Mr Lumsden, however tempting that might be.
I will not repeat myself, convener.
On my amendments—especially in relation to amendment 343—it is good to hear that Ariane Burgess and Mercedes Villalba recognise that some landowners own land that is scattered across all of Scotland. Some of those landowners are electricity infrastructure companies, so I am sure that those members will have no problem in supporting amendment 343. All that I am proposing is that landowners who have land scattered across Scotland that
“is used for the purposes of electricity infrastructure”
must produce a land management plan that would go through the same community process as everyone else.
I will speak to another couple of amendments. I completely agree with the deputy convener’s points about urban Scotland. We all have areas in our constituencies and regions where there are absentee landlords and derelict sites, whether that is in city centres or on brownfield sites. It would be good to explore that issue further and consider whether an amendment can be lodged at stage 3 to address some of those concerns.
I want to speak about the threshold for obligations potentially being reduced from 1,000 to 500 hectares. We heard that that would widen the scope, with applicable land that is used for farming increasing from 1.3 per cent to 3.6 per cent—I think that that is the figure that Mercedes Villalba mentioned. However, that does not give the full story. How many farms would that cover? How many farms would then have to produce land management plans? We do not have the figure and we do not know what impact that change would have.
Farmland is changing, too. I imagine that some farms might be getting bigger as Labour’s cruel family farm tax kicks in and we see farmland being bought and sold. That might have a big impact on farmers, so the last thing that they need on top of that cruel farm tax is to have more red tape, bureaucracy and cost built in.
I will leave it there.
Mr Lumsden, I let you get that word in twice, but I will not let you get it in again. You can refer to the farm tax in relation to this bill. I am very proud of the fact that committees of this Parliament are apolitical. You can express your views about the tax, but not in that way.
I call Mark Ruskell to speak to amendment 49A and other amendments in the group.
To rewind a little, amendment 49 from the cabinet secretary aims to create a definition of a “contiguous” holding, which addresses evidence that we heard at stage 1 that a holding might have a railway line running through the middle of it and therefore might not be seen as contiguous. I appreciate what the cabinet secretary is trying to do.
In seeking to amend amendment 49, I am replacing the suggestion of using 250m as the definition of “contiguous” with the figure of 10 miles. That goes back to the cabinet secretary’s comments on what people understand as being nearby or within an area. It is important that landholdings that belong to the same owner and have boundaries within 10 miles of each other are treated as contiguous. I think that most people who live in those communities would see such holdings as being broadly contiguous as those are holdings of nearby land that those people want to have a stake in and want to have a conversation about with the landowner. The switch from 250m to 10 miles would address cases where multiple landholdings within communities are being bought up by one owner and are effectively being managed as a single entity.
A number of witnesses told the committee about the example of the Taymouth castle estate and the Glenlyon estate, and the issue was also raised at a town hall meeting that we attended in Aberfeldy. In that example, Discovery Land Company owns both those estates, along with a number of other assets in the community. The company’s proposals have been less than transparent and the feeling in the community—no matter whether people are broadly against or broadly supportive of what DLC is attempting to do—is that people do not really have a full understanding of what the final vision is or what the final plan will be for two estates that are effectively being managed together. That lack of transparency or of a long-term plan is causing a lot of division in the community. I see that in Kenmore and I see that in Aberfeldy. I know that the First Minister, in his role as the constituency MSP, has been asking DLC for its long-term management plan for the area so that people, whether or not they are broadly supportive, can at least know what is coming.
All that we really have at the moment is the planning system, which throws up minor applications for buildings to be built on estates or for the change of use of particular assets but does not really provide a full picture of how a community might change, for better or for worse. The point about what the cabinet secretary called nearby land and the need for transparency is really important.
I appreciate that bringing down the threshold from 3,000 hectares to 1,000 hectares might have some benefit. In that particular case, it would include the Glenlyon estate in the purview of the land management plan, but it would not include Taymouth castle estate or the other assets and land that DLC operates in the area, which still leaves a question about the overall vision and the community’s involvement in that.
Michael Matheson made a point about sites of community significance. I think that that is important, and the bill might have missed an opportunity by not dealing with the urban aspect of that. I hear what the cabinet secretary says about there being more reforms to come, particularly on community right to buy. That is also an issue in the Loch Tay area, because DLC has bought hotels, tourist accommodation, caravan parks and shops, but people do not really know how those are being managed. I hope that, if a version of the amendment were to go through and a land management plan applied to all such assets, that would also provide some clarity on sites of community significance.
Ultimately, communities will judge the bill on whether it improves the situation locally and brings transparency. Right now, my constituents—certainly, the folk we met at the town hall meeting—would call that into question. They do not think that the bill will change the situation locally and provide transparency. I hope that we can agree on something at stage 3—whether that involves a contiguous holding being defined as being within 10 miles of another holding or in some other way—that provides much more of a commonsense understanding of what constitutes nearby land and of the kind of conversations that need to be had on the back of the transparency that a land management plan would bring.
I appreciate the cabinet secretary’s offer to discuss the matter further and to look at the definition again ahead of stage 3. That will be of interest to people on both sides of the debate around Perthshire.
Does any other member want to say anything? If not, I will say a few things, because I started a trend. I will try to keep my remarks as short as possible.
I am mindful of the fact that land reform in Scotland was looked at in 2003 and 2016. The deputy convener brought up the fact that urban areas have avoided land reform. I have some sympathy with his desire to include sites of community interest in the bill, and I would like his proposal to be developed more. I am sad to say that, as amendment 11 stands, I am unable to support it. However, I hope that the cabinet secretary and perhaps a wider group can discuss how the idea can be progressed, because the bill represents a missed opportunity to take account of sites of community interest. That is an issue that more people in urban areas are affected by than is the case in rural areas, so the proposal is worthy of further consideration.
As far as ownership is concerned, I am not sure that the cabinet secretary satisfied me that the ownership issues would be resolved in a situation in which we were talking about a marginally different group of owners rather than the same owner. I am not sure what the solution is, but maybe the cabinet secretary could look at that a bit more.
The other issue is to do with the contiguousness of holdings. A distance of 250m is wildly different from a distance of 10 miles in the areas that we are talking about, whether in a remote area in the Highlands, a rural area or a semi-rural area. My concern is that we have not got the provision right, but it cannot be so broad that it applies anywhere in Scotland. For example, there are many people in the Highlands who have upland farming interests, where they keep their sheep during the summer, and they might have winter grazing elsewhere, such as in the south of Scotland, where the weather is more hospitable in the winter.
I am not sure what the solution is. I would be grateful for the opportunity to work with the cabinet secretary, if an offer was made, to look at how we could provide for that through an arrangement along the lines that I suggested—dare I repeat myself—so that, in a situation in which there was shared ownership, shared labour, shared machinery and shared livestock, two holdings could be drawn together in a management plan, rather than being treated as different holdings. I will leave my comments there.
The cabinet secretary did not jump in to say that she would be happy to discuss that suggestion with me.
Would you like me to come in at this point, convener?
Having prompted you to, I am happy for you to do so.
I said earlier that I would be more than happy to have a conversation about that, but I repeat that, because of some of the issues that have been raised, I would need to seek advice to gauge whether that would be possible.
I thank the cabinet secretary for that. I will leave my comments there.
I invite Michael Matheson to wind up and to press or withdraw amendment 11.
12:00
I have listened carefully to the comments of committee members and the cabinet secretary. I am conscious of a couple of arguments being deployed by the Scottish Government about the need to keep the bill simple and clear. I agree with that need when it comes to land reform, and I agree that the bill is specifically trying to address an issue that the SLC sought to identify in its own report.
My only slight push back on that is that the bill as drafted does not adhere to all the areas that the SLC has identified and does not accept all its recommendations. Equally, when a bill is introduced, its scope is in the hands of the Scottish Government and is decided by how far the Government wishes it to go.
We have to be mindful that, through the bill, we are—rightly—empowering communities in rural Scotland. However, how we are doing that means that communities in some of urban Scotland will not have the same powers over significant pieces of land in their local area. If there is a requirement for a land management plan for significant rural land, why should there not also be one for significant urban land? That is an issue.
I recognise that the bill is probably not the place to address that issue at this stage, but I encourage the Scottish Government to explore further—if not at stage 3, in future legislation—how we can address what I think is a growing disparity between the rights of communities in rural Scotland and the rights of communities in urban Scotland.
On that note, I withdraw amendment 11.
Amendment 11, by agreement, withdrawn.
Amendment 389, in the name of Tim Eagle, is grouped with amendments 397 and 341. I call Tim Eagle to move amendment 389 and speak to the other amendments in the group.
I will not take long. My amendments 389 and 397 seek to delete proposed new section 44C—which is entitled “Regulations to include obligation to consider community request to lease land”—of the Land Reform (Scotland) Act 2016.
I believe that the policy intention of section 44C is unclear. I would also welcome more details from the cabinet secretary of what would be in those regulations; for example, what does “give consideration to” mean in practice? I feel that section 44C places an unqualified responsibility on the landowner, and therefore it should be deleted.
As we would prefer to delete section 44C, I am not able to support Rhoda Grant MSP’s amendment 341 at this time.
I move amendment 389.
I call Mercedes Villalba to speak to Rhoda Grant’s amendment 341 and any other amendments in the group.
Amendment 341 would add the consideration of a
“community request to constitute land as a croft”
for the purpose of croft creation under the proposed new section 44C of the 2016 act. Currently, section 44C allows for community bodies to request the lease of land. Adding the explicit option for communities to request croft creation can empower local communities to produce food for local consumption through sustainable and regenerative agricultural practices and provide croft housing for those who are growing that food.
Does any other member wish to speak?
It is a bit unfair to ask this of you, Mercedes, because although you spoke to it, it is Rhoda Grant’s amendment. My concern is that amendment 341 seeks to move crofting outwith the crofting counties, which has huge implications. If Rhoda Grant were here, I would ask her what the implications of that would be for the costing and running of crofting in Scotland and whether that has been taken into account. I suspect that it has not, because that change would increase the costs of the croft house grant scheme and the cost of the Crofting Commission, which causes me huge concern. Perhaps the cabinet secretary, who will be speaking next, can allude to those problems, unless you particularly want to, Mercedes.
I am more than happy to come in on that, convener. We did not come up against those issues with amendment 341, because it specifies that it relates to crofting counties. Therefore, the issue that you raise would not be a concern in relation to that amendment.
I want to quickly touch on the amendments from Tim Eagle. Ultimately, we included in the bill the proposed new section 44C of the 2016 act as part of the overall aim to strengthen and improve transparency and engagement between landowners and local communities. Of course, tenants and crofters should already be engaging with landowners through the land management plan and the community engagement process, but we specifically included section 44C so that regulations would have to be laid to specifically require consideration by landowners of community requests to lease land. That is in recognition of the fact that access to assets, whether land or buildings, can be vital for community development and sustainability. The option to lease might be just as valuable as the rights that are set out under the right-to-buy legislation. That is why I am content that it is appropriate for future regulations to set out the detail of how landowners should give reasonable consideration to requests and how community bodies should make those requests. It is important that we develop those requirements with the benefit of consultation.
On Rhoda Grant’s amendment 341, we did not encounter the issues that you found, convener. Overall, we welcome the intention of the amendment, which seeks to do something similar to what we are already trying to do through new section 44C of the 2016 act—to bring forward the requirement for regulations to oblige landowners to consider reasonable requests from communities to constitute land as crofting land. There is merit in considering the amendment further, in particular to ensure that reasonable requests by crofting community bodies are considered by landowners. However, we have some issues with the drafting of the amendment, because I do not think that it achieves its purpose in the way that the member would—
Cabinet secretary—
I will just finish my sentence, convener. That is why I offer to work with Rhoda Grant if the amendment is not moved right now. I am more than happy to work with her on that. I have concluded my comments, convener, but I am happy to take a point from you.
It is just a brief question. If you were considering granting further land into crofting, which of the three bits of crofting legislation would you bring it under? One thing that needs to be done to make crofting work is a reform of crofting legislation. Are you not in danger, by increasing crofting per se, of further muddying the water as far as the legislation is concerned?
I am not concerned about that at the moment. The member will no doubt be aware of the Crofting and Scottish Land Court Bill, which was recently introduced.
Again, there is no obligation; it is about considering requests from crofting community bodies. Although the drafting is not quite right, I support what the amendment is trying to achieve.
Thank you, cabinet secretary.
I call Tim Eagle to wind up and to press or withdraw amendment 389.
I have nothing to add, convener, but I press amendment 389.
Just to clarify, in order to try to speed things up, I am going to change the way that I said I was going to do the voting. The priority of the committee is to ensure that everyone watching the session is aware of how people have voted in each situation. One member—Kevin Stewart—is online. When he votes, I will say how he has voted, so that people can see that. I hope that that will speed things up, rather than doing a roll call.
The question is that amendment 389 be agreed to. Are we agreed?
Members: No.
There will be a division. Those who are in favour of amendment 389, please raise your hand. Those who are against amendment 389, please raise your hand. Kevin Stewart has voted against the amendment. Those who wish to abstain, please raise your hand.
For
Lumsden, Douglas (North East Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Against
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Lennon, Monica (Central Scotland) (Lab)
Matheson, Michael (Falkirk West) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Stewart, Kevin (Aberdeen Central) (SNP)
The result of the division is: For 2, Against 5, Abstentions 0.
Amendment 389 disagreed to.
Amendment 12, in the name of the cabinet secretary, is grouped with amendments 13, 15, 108, 417, 132, 162, 161, 165, 165A, 458, 170, 175, 217, 219 and 220. I call the cabinet secretary to move amendment 12 and speak to the other amendments in the group.
As I have said in previous evidence sessions with both the Delegated Powers and Law Reform Committee and this committee, it is important for the Scottish Parliament to have the appropriate scrutiny powers for each regulation that stems from the bill. I have carefully considered the committee’s recommendations and have lodged a number of amendments in response to many of those.
Some of the recommendations were to include in the bill statutory duties to consult. As I have set out in various responses, I would already expect the Government to undertake the appropriate consultation, but I am happy to add statutory duties to consult across a number of powers in the bill. Amendments 15, 108, 132, 162, 165 and 170 do that.
Amendments 12 and 13 will make a technical change to the power in the proposed new section 44A of the 2016 act, requiring ministers to consult such persons as they consider appropriate before “laying”, rather than “making”, regulations.
Amendment 175 would insert section 67V(4) into the Land Reform (Scotland) Act 2003, which would provide a power to the Scottish ministers to make further provision for compensation through regulations, including how claims for compensation are to be made and how the amount payable is to be determined. The power is currently subject to the negative procedure, but the Delegated Powers and Law Reform Committee recommended that use of the affirmative procedure would be more appropriate. Although I considered that use of the negative procedure in this instance would make the regulation-making power equivalent to similar powers in previous land reform legislation, I am happy to accept that recommendation, and amendment 175 will ensure that the power is instead subject to the affirmative procedure. Under amendment 165, there will be a statutory duty to consult on any such regulations.
I hope that I can go some way towards meeting Tim Eagle’s intentions and what he is trying to achieve with his amendments in the group. His amendment 417 would create a pre-laying procedure for regulations to modify chapter 2 that are made under proposed new section 44M of the Land Reform (Scotland) Act 2016. I appreciate that a pre-laying procedure was recommended by both this committee and the Delegated Powers and Law Reform Committee. Again, I want to ensure that Parliament has the appropriate scrutiny powers, but the Parliament will have to agree to any such regulations that are made as they are already subject to the affirmative procedure, and there will be a statutory duty to consult. The bill already specifies the land in relation to which those obligations may be imposed by regulations—that is in proposed new section 44A of the 2016 act and in the list of persons in proposed new section 44E(2). Any regulations that are made in future would really be to modify what is already there rather than to introduce new powers. It is more common to see a pre-laying procedure for the latter. That is why I recommend that the committee opposes amendment 417.
Amendment 458 would attach a similar procedure to the power in proposed new section 67V(4) of the Land Reform (Scotland) Act 2003 to make further provision about compensation. The DPLR Committee recommended that that power be subject to the affirmative procedure, and my amendment 175 will ensure that it is. The DPLR Committee also recommended a statutory requirement to consult, which my amendment 165 will introduce. It did not recommend a pre-laying procedure, which is why I ask the committee not to support amendment 458.
Amendment 161 is similar to my amendment 162. It would add a statutory duty to consult in relation to the power in proposed new section 67S of the 2003 act, but it includes a requirement to prepare and publish a report on the consultation. It is standard practice to publish the details of any consultation, so that seems unnecessary. In addition, the amendment suffers from a drafting flaw, because the requirement for regulations that are subject to the affirmative procedure should be that there is consultation before they are laid rather than before they are made. I therefore ask the committee not to support amendment 161.
Amendment 165A would amend my amendment 165, which creates a statutory duty to consult in relation to the power in proposed new section 67V of the 2003 act, in order to require ministers specifically to consult a person who is an accredited valuer of land. Given that that section concerns compensation, the seeking of advice from accredited persons or appropriate bodies would be an expected part of the development of regulations, so I do not think that amendment 165A is necessary. It would also be unusual to require an individual to be consulted, rather than a category of persons or a professional body. Those are the reasons why I ask the committee not to support amendment 165A.
However, I am keen to work with Tim Eagle on the remainder of his amendments in the group—amendments 217, 219 and 220. Like others, they would expressly require Scottish ministers to consult people that they considered appropriate before making regulations under certain paragraphs of the schedule. I am open to including in the bill a requirement to consult in relation to those powers in order to reflect the intention of those amendments. If Tim Eagle is happy not to press them, I will be content to work with him on them ahead of stage 3.
I move amendment 12.
Thank you, cabinet secretary. I call Tim Eagle to speak to amendment 417 and other amendments in the group.
As the cabinet secretary said, many of my amendments in the group relate to parliamentary oversight. I appreciate her comments on amendments 217, 219 and 220.
My amendment 417 is about improving parliamentary oversight of regulations that will be triggered by this framework bill. It would require all draft regulations that are made under proposed new section 44M of the 2016 act to be laid before Parliament and the views of relevant committees sought on those matters.
My amendment 161 seeks to amend proposed new section 67S of the 2003 act, which states:
“Ministers may offer to buy land ... following a review of a lotting decision only if they are satisfied that it is likely that the fact that the land has not been transferred since the lotting decision was made is attributable to the land being less commercially attractive than it would have been had the lotting decision not prevented its being transferred along with other land.”
There are already a number of conditions in the bill relating to how that would proceed. Proposed new section 67S(6) will allow ministers by regulation to make further provision about buying land. My amendment 161 would require ministers, before they make regulations under that section, to consult relevant persons and prepare and publish a report on that consultation.
My amendment 165A seeks to amend the cabinet secretary’s amendment 165. It simply provides that, during the consultation, one of the consultees must be
“a person who is an accredited valuer of land”.
My amendment 458 also seeks to improve scrutiny of regulations that are made under this framework bill. It applies to proposed new section 67B of the 2003 act, which will allow ministers to make regulations relating to compensation. The amendment would require any draft regulations to be laid before Parliament and the relevant committees to be consulted.
12:15My amendment 220 concerns when ministers may make regulations to modify the basis on which a valuer may assess the compensation that is payable and the consideration to be given to certain matters by the valuer in doing so under chapter 1 of part 4. The amendment would require ministers to consult people whom they considered appropriate before making such regulations.
Amendments 219 and 220 are similar, but they relate to different regulation-making powers. It is essential that ministers consult those who have knowledge and understanding before making changes. That will allow unintended consequences to be avoided and ensure that the views or interests of all those who are involved are taken into account.
Thank you, Tim. As no other member wishes to speak to the group and I am not going to do so, I invite the cabinet secretary to wind up.
I have nothing to add, convener.
Amendment 12 agreed to.
Amendment 13 moved—[Mairi Gougeon]—and agreed to.
Sorry, Mr Eagle. I saw you trying to vote, but you are not quite on the committee yet.
Sorry. I am just enthusiastic, convener.
We are at a difficult point in the stage 2 proceedings, because we are about to go into another group, which will require debate and a series of votes. That would take us well beyond the time that I have allowed for our meeting this morning, so I propose that we hold it there. We have not got as far as we hoped, and we will have to work out what we are going to do as regards continuing our stage 2 consideration of the bill. We have that to look forward to. Cabinet secretary, we will be in contact with you once we have discussed our work programme.
I close the public part of the meeting.
12:17 Meeting continued in private until 12:53.Previous
Subordinate Legislation