Official Report 756KB pdf
My briefing says, “Good morning”, but we all know that it is the evening, so good evening, and welcome to the 23rd meeting in 2025 of the Net Zero, Energy and Transport Committee.
Our first and only item of business is stage 2 consideration of the Land Reform (Scotland) Bill. I welcome non-committee members, of whom there are quite a few present. This is the committee’s fourth stage 2 meeting, and the deadline for completing stage 2 is 27 June. A formal target has been set for this week’s meetings—the committee will not go beyond chapter 2 of part 2 of the bill tonight, which means that the last group of amendments that can be debated is the group that relates to the tenant farming commissioner. I make it abundantly clear at this stage that, as far as I am concerned, there will be a hard stop at 8.30 this evening, so, if I am not able to finish a group by 8.30, I will stop at that stage. If members are to contribute fully, I think that it is unreasonable to go beyond that time.
I will not go through all the procedure again. Members have been to the previous meetings and understand the procedure. The one member who has not been to the previous meetings—Mr Ewing—has attended enough stage 2 sessions to know what is going on.
However, as I always do at the start of the meeting, I remind members about my declaration in the register of members’ interests. I declare an interesting—it is interesting, but I mean that I declare an interest. As is set out, I have an interest in a farming partnership in Moray. Specifically, I am the owner of approximately 500 acres—or 202.3 hectares, for those of you who want the conversion—of farmland in Moray, of which about 50 acres—or 20-odd hectares—is woodland. I also declare that I am a tenant of approximately 500 acres—or 202.3 hectares—of farmland under a non-agricultural tenancy, that I have another farming tenancy for approximately 20 acres, under the Agricultural Holdings (Scotland) Act 1991, and that I sometimes take on grass lets annually.
Before I turn to the marshalled list of amendments, do any other members want to declare an interest? Mr Eagle, I am looking at you, so that you do not get caught out when you speak for the first time.
I declare an interest as an active farmer in Buckie and as a member of the Royal Institution of Chartered Surveyors—that came up yesterday.
I declared at yesterday’s meeting that I was a member of the Royal Institution of Chartered Surveyors, although, for some time, I have been classed as a retired member.
After section 6
As noted in the correction to the groupings, the next group is on natural capital investment. Due to the order of the marshalled list of amendments, the group on Crown rights to foreshore and seabed will follow this group. Amendment 478, in the name of Rachael Hamilton, is the only amendment in the group. I call Rachael Hamilton to move and speak to amendment 478.
Amendment 478 would require ministers to
“prepare and publish an ethical framework for natural capital investment”
within one year of the bill receiving royal assent. The framework must be developed in consultation with individuals and communities that have a legitimate interest in natural capital investment.
Amendment 478 was prompted by discussions with my constituents in Newcastleton, who have raised serious concerns about the impact of recent investment practices on their local environment and heritage. In March 2023, an investment company acquired 11,400 acres of Langholm moor, with the aim of promoting carbon sequestration and generating carbon credits. However, in February this year, the same company announced plans to cull 85 per cent of the ancient herd of wild goats on the moor. The action was to be carried out during the breeding season and is causing significant distress in the community. Those goats are not only of ecological importance but are of significant cultural and heritage value. More than 12,000 local residents have signed a petition for the goats’ protection.
For generations, families have enjoyed seeing those animals on the hills, and people travel from across the country to catch a glimpse of them. The wild goats have inhabited the moorlands between Newcastleton and Langholm for centuries. They are fully wild and form part of the delicate ecology of those protected uplands.
Excuse me—I am choking on my sandwich. My understanding is that, in the past, there has been informal culling of goats in those communities. Despite the fact that this natural capital company is now applying for a formal licence to do this, my understanding, which might or might not be correct, is that there has, traditionally, been some culling of goats in the area.
Yes, and that would be expected for goats that are, for example, of a certain age or injured, but not to the extent of this cull. The company wanted to begin a cull that was set to reduce the number of wild goats from 138 to 20. The member might be interested to know that the media release from the Wild Goat Conservation Group today said that the purpose of the cull was to satisfy requirements that had to be met before the Scottish Government would give grants to the rewilding company to plant trees on its hill ground. The cull would result in quite a serious difference in the number of wild goats. Does that answer your question?
Yes.
The local community says that the goats embody the very spirit of our hills and that they are a living relic of Scottish clan crofting culture, and yet, despite their importance, wild goats have no legal protection in Scotland. The Government has stated that it has
“no plans to provide full legal protected status for primitive goats, or feral goats”.
That lack of protection has left them vulnerable and their future increasingly uncertain. My amendment seeks to ensure that we have a transparent discussion about the purpose, ethics and community impacts of natural capital investments. It would embed community voices in the decision-making process and help to ensure that investment in our natural environment is guided by clear ethical principles.
I move amendment 478.
As no other member wishes to speak, I call the cabinet secretary.
First, I will set out that, in November last year, we published our “Natural Capital Market Framework”, which provides the ethical framework that Rachael Hamilton is looking to establish. It sets out our six principles of responsible investment in natural capital, with actions to support their delivery. On that basis, I do not support amendment 478. However, if Rachael Hamilton would like to raise directly with me specific circumstances or issues in relation to the matters that she has spoken about tonight—whether those matters relate to my portfolio or to my colleagues’ portfolios—I will be happy to look into those further.
Will the cabinet secretary take an intervention?
I have finished speaking, but I am happy to hear your point.
I understand that you are finished; I wanted to hear the end of your sentence, so I am sorry about that. The six principles of natural investment miss the key point, which is that investors can come in and, aside from those six principles, do pretty much what they want in relation to meeting the Government’s net zero targets. Because the species has no legal protection, we find ourselves in a situation in which an investment company, which is possibly offshored and is probably creating absolutely zero jobs in a community such as Newcastleton, can get around the six principles of natural investment and not adhere to what the community wants. We are at a really important juncture. The Government needs to look at this, because we are at the very start of the natural investment process. Pension companies will buy up swathes of land and do pretty much what they want, without the say of the communities. As you know, cabinet secretary, the petition has 12,000 signatures. The strength of feeling in the community is unbelievable.
Would the Government consider looking at the six principles and, for example, expanding the principle of ethical investment—on the basis of the arguments that I have been making on behalf of the community—and encompassing it in separate principles?
Alternatively, would the cabinet secretary consider working with me on an amendment that could recognise that the principles have not kept up with the nature of the investment?
18:00
I thank Rachael Hamilton for her points and I fully appreciate what she is trying to do. The reason why we do not support amendment 478 is that, through the “Natural Capital Market Framework” that we published last year, we are already providing what it specifically asks for. One of those principles is about ethical investment, and another is about the community benefit that should be expected. There are other measures in the bill, such as land management plans—which we have already discussed at length in the committee’s sessions so far—that I hope could address some of those issues in the future, because those measures are about wider community engagement.
May I come back in, convener? It is an important point.
I had already finished my comments. I was just responding to Ms Hamilton.
I could get myself confused here, because the cabinet secretary had finished, and I let Rachael Hamilton ask another question. Rachael, you will, of course, get an opportunity to wind up and press or withdraw your amendment and, at that point, if you ask the right questions, you could maybe tempt the cabinet secretary to come back in.
I ask you to wind up and indicate whether you wish to press or withdraw amendment 478.
Convener?
Hold on. I took interventions from members before I called the cabinet secretary, so, again, maybe your opportunity will come if Rachael Hamilton opens the door to let you in, Mr Ruskell.
I intend to press amendment 478, to test the room on what I believe are quite strong points.
I have set out why I believe that the natural investment framework should be encompassed in the Land Reform (Scotland) Bill. The cabinet secretary said that Oxygen Conservation, which is the company that has bought 13,000 acres of moorland habitat, should be guided by the six principles for responsible investment in natural capital. If that is true, it should also adhere to those principles. The Government should lean on the company to desist from culling the goats, which is against those principles. The Government guidelines are clearly not working and it needs to introduce something stronger.
The bill’s provisions on natural capital investment could be expanded even further. Why would we want people who invest in Scotland to run riot, affecting issues that communities are passionate about, and ignoring really thorny issues, just so that they can meet the net zero targets? That would not be right.
Like the cabinet secretary, I think that you make a very strong case for having land management plans. I note that some of your Conservative colleagues are not supportive of the bill’s provisions on such plans, whereas Scottish Greens want to see them strengthened.
Oxygen Conservation has a number of estates around Scotland. For example, the committee has been to see the Invergeldie estate near Comrie, where community consultation is now on a better footing, as it is at Dorback estate in the Cairngorms.
When a new landowner with specific objectives comes into a community, they need to have an important conversation about species management and to carry out consultation with the community—with the people who have lived in the area for many years, who understand local traditions and the way in which land is managed there. The landowner needs to reflect that conversation in a land management plan. I think that strength comes from having such transparency.
If there are specific issues about culling, the number of animals that need to be culled, the traditions around that and the extent of it, those are exactly the issues that we need to see reflected in land management plans, and such plans really are a tool that can be used to crack them.
That might sound green because it is coming from a Green spokesperson, but what you are saying is not green whatsoever. A land management plan would not be retrospective in that situation. The Oxygen Conservation company would not suddenly ask for such a plan, because it has already bought the land and is already planting trees and culling goats. The goat meat is in the butcher’s shop. That is how far the company has gone, because it thought that that was what the community wanted.
I do not think that the issue is really about goats, though. There might be a bit of giggling about the fact that I am being passionate about wild goats, but my point speaks entirely to the fact that grants from the Scottish Government have gone to an offshore investment company that is creating very few jobs and has upset 12,000 people. We need to look at these things very carefully, because I do not think that relying on the investment principles works.
Rachael Hamilton mentions that 12,000 people have expressed their views. A land management plan would put a statutory duty on the landowner—in this case, the business that she has mentioned—to actively consult with all those people while drawing up a new and fresh land management plan. In an earlier contribution, Ms Hamilton said that, although we have an ethical investment framework, it is clearly not working, so there should be some form of enforcement. At the committee’s previous meeting, we agreed to amendments that will increase to £50,000 the maximum fine for non-compliance with land management plans, but Conservative colleagues tried to reduce it to just £500. What is Rachael Hamilton’s position on that?
I think that Bob Doris is talking about something entirely different, and being very childish politically, because the issue is about a specific situation in Newcastleton that pertains to individuals there. It concerns a company called Oxygen Conservation, which has bought 13,000 acres of natural moorland habitat and has been culling goats. The purchase was grant funded by the Scottish Government, so where is its oversight of all the land that was purchased with its funding?
I am sorry, but I am not going to take another intervention from Ms Hamilton. We are talking about her amendment.
I know. I am letting the question hang, Mr Doris, because that is the question that you should be asking your Government.
You have left the question hanging, Ms Hamilton, but no one is rising to the bait.
I take it that you are pressing your amendment, as you indicated at the beginning of your contribution that you would do.
The question is, that amendment 478 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Lennon, Monica (Central Scotland) (Lab)
Lumsden, Douglas (North East Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Against
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Stewart, Kevin (Aberdeen Central) (SNP)
The result of the division is: For 3, Against 4, Abstentions 0.
Amendment 478 disagreed to.
Amendments 479 and 480 not moved.
Amendment 481 moved—[Mark Ruskell].
The question is, that amendment 481 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
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)
Abstentions
Lennon, Monica (Central Scotland) (Lab)
The result of the division is: For 1, Against 5, Abstentions 1.
Amendment 481 disagreed to.
Amendment 482 moved—[Mark Ruskell].
The question is, that amendment 482 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
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)
Abstentions
Lennon, Monica (Central Scotland) (Lab)
The result of the division is: For 1, Against 5, Abstentions 1.
Amendment 482 disagreed to.
Amendment 483 moved—[Mark Ruskell].
The question is, that amendment 483 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
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)
Abstentions
Lennon, Monica (Central Scotland) (Lab)
The result of the division is: For 1, Against 5, Abstentions 1.
Amendment 483 disagreed to.
Amendments 484 and 485 not moved.
Amendment 486 moved—[Tim Eagle].
The question is, that amendment 468—amendment 486, that is; I am starting to get my numbers muddled up very early on in this session. I will need to sharpen up. The question is, that amendment 486 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Lennon, Monica (Central Scotland) (Lab)
Lumsden, Douglas (North East Scotland) (Con)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Against
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mountain, Edward (Highlands and Islands) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
The result of the division is: For 3, Against 4, Abstentions 0.
Amendment 486 disagreed to.
Amendment 514, in the name of Monica Lennon, has already been debated with amendment 355. I call Monica Lennon to move or not move the amendment.
Apologies—my papers are out of order. Can I have a second to double-check which way I will go?
You may.
I think that I will move it.
It is the amendment on the community right to buy common good land.
Then no, I will not move it.
Monica, I just want to check. I do not want to put you under any pressure, but if you do not move the amendment that will be it gone.
I have had the numbering clarified. I am sorry—there is a lot of paperwork here.
I am pausing to make sure that you are entirely happy.
Yes—thank you, convener.
Amendment 514 not moved.
We move to the group of amendments on Crown rights to the foreshore and the seabed. Amendment 515, in the name of Monica Lennon, is grouped with amendment 516. I call Monica Lennon to move amendment 515 and speak to both amendments in the group.
Thank you, convener—I have the right paperwork in front of me now. It has been a long day. I will speak to amendments 515 and 516 on Crown rights to the foreshore and the seabed.
The devolution of the management of the Crown estate was an important and overdue reform, but that journey is not complete. Back in 2000, the Parliament abolished the Crown’s role as paramount superior, as part of the abolition of the feudal system. It is within devolved competence to legislate on the Crown’s property rights and interests, as is set out in paragraph 3 of schedule 5 to the Scotland Act 1998.
Amendments 515 and 516 seek to complete the modernisation of Scotland’s land law by abolishing the remaining archaic role of the Crown in Scotland’s land tenure system by transferring ownership of the Crown foreshore to local authorities and that of the seabed to Scottish ministers. That would enable those important assets to be managed as assets of democratically accountable organisations rather than of the Crown, which, at the accession of every new monarch, is entitled to reclaim control of them.
Of Scotland’s 375 harbours and ports, 241 are owned and managed by local authorities, 24 are owned and managed by other public authorities and 33 are trust ports. They all operate under a statutory framework that is intended to secure the public interest, and they are critical to Scotland’s marine economy. It is important that that public interest extends to the foreshore and the seabed around those harbours and ports.
Amendments 515 and 516 would also prevent any future re-reservation of the management of the Crown estate, because it would cease to exist. The amendments that I have lodged might sound familiar—they were first proposed by Andy Wightman MSP during the passage of the Scottish Crown Estate Bill but were ruled out of scope because that bill dealt with the management rather than the ownership of Crown property. No such inhibition applies to the Land Reform (Scotland) Bill, which concerns the ownership and management of all land in Scotland.
I move amendment 515.
18:15
You will get a chance to wind up at the end, Monica. Michael, do you want to come in at this stage?
Yes, thank you. I have considered both amendments, which would, if I have read them correctly, effectively end Crown Estate Scotland’s role and functions. However, I am not clear about a couple of issues.
First, I am not entirely sure whether local authorities have the capacity and capability to undertake devolved foreshore responsibilities, given the significant challenges that they face in dealing with planning matters as it stands. There is a capacity and capability issue.
My second point is about aspects of spatial planning. It appears to me that, in order to ensure that the rationale for the approach that is being taken across the country is clearly understood, it makes more sense to take a consistent approach to dealing with spatial planning matters, on the foreshore and beyond, and to do so in a single organisation.
My third point is that I imagine that the challenge of passing that responsibility to local authorities is likely to result in a potential variation in approach, which will make policy at a foreshore level less transparent. How different local authorities take planning decisions on foreshore matters could also raise fairness issues.
Notwithstanding my interpretation that the amendments effectively do away with Crown Estate Scotland, the issue is whether local authorities have capacity and capability in the first place. On spatial planning, they would ultimately lead to the challenge of different organisations dealing with different things in different parts of the country, which could create transparency and fairness issues when it comes to how the process is applied.
Does any other member want to say anything?
Do you want to speak first?
No, I always speak last if I am speaking on an amendment.
The issue is quite interesting. I remember that it came up when I was a councillor in 2018, and we had quite a wide debate on it. At one point, I think that there was a proposal from the Government about whether Crown estate management could fall to councils. Ultimately, for the reasons that Michael Matheson has given, we said, “We just cannot manage this.”
In theory, it would be great to have more local involvement in management, but I imagine that the way things stood in 2018 would be the same today, so councils would just not be able to run the proposed approach. Knowledge and experience come from having Crown Estate Scotland in place. I could get behind the amendments in some ways, but the history tells us that, for councils, the proposal just would not be possible at the moment.
I am sure that Monica Lennon will respond to the following points when she winds up. To correct Michael Matheson, which I do not do without being careful, the Crown Estate has estates on land as well as at sea. Those estates are spread across Scotland and are not only agricultural. The Crown Estate has other interests as well.
I tend to agree with Monica Lennon that Crown Estate reform was probably overdue when it was carried out. It is a journey that we are only part of the way through, and we are waiting to see its full effects. I have long argued about the issue of which organisation should realistically get the income from ScotWind and whether that should be Crown Estate Scotland or the Scottish Government. The sale of a long-term lease is actually revenue, so a percentage is kept by the Crown Estate and a percentage goes to the Government, and capital has to be reinvested back by the Crown Estate into the estate itself.
I am taken by the fact that, 19 years ago, Bidwells—I declare that I worked there then—managed Crown Estate lands in a part of Scotland. It was interesting due to the complexity of the management of those lands, which was not carried out by the Crown Estate but by surveyors and by several firms around Scotland. That ensured that there was the capacity to manage the land. I strongly question whether local authorities would have the scope to carry out the management of the Crown estate foreshore if that were to be passed over to them.
I also agree with the deputy convener that, when it comes to the management of the Crown estate, it is good that that is done by a central body across Scotland. That means that there is no dubiety and that there are not the huge variations that there could be in, say, how much local authorities charge for even a minor thing such as the mooring of a buoy on the seabed .
I am nervous about the amendments. I can see why they might be attractive, but maybe the cabinet secretary can set all our minds at rest. We come to you now, cabinet secretary.
The overriding concern with the amendments is that they relate to reserved matters and, on that basis, they are outside the legislative competence of the Parliament. It is true that, as we have discussed around the table tonight, some functions that were transferred to Scotland are now exercised by Crown Estate Scotland. The Scottish Crown Estate Act 2019 already gives ministers powers to transfer or delegate management to local authorities or community organisations so that they can take on the management of assets in their area, including the foreshore. It is largely on that basis that I urge the committee not to support the amendments.
I move back to Monica Lennon to wind up and press or withdraw amendment 515.
I am grateful to members and the cabinet secretary for their contributions. It has been quite a considered discussion. It was good to hear your reflections as well, convener.
On Michael Matheson’s question about the role of Crown Estate Scotland, I recognise that it currently manages property rights and interests. There is no reason why that could not continue with regard to my amendments, although there would have to be some amendment to the duties under the 2019 act.
These issues are not new; they have been hanging around since the beginning of devolution. The former Scottish Labour-Lib Dem Executive asked the Scottish Law Commission to consider the law of the foreshore and seabed back in 1999. The commission reported in 2003 but, 22 years down the line, nothing has been done on that.
I hope that that is helpful in outlining what I think the on-going role of Crown Estate Scotland would be in relation to the amendments.
This is a welcome opportunity to talk about the role of our planning authorities and the need to have more planners. I am not currently a member of the Royal Town Planning Institute, so that is not in my entry in the register of members’ interests, but that was my background before coming into the Parliament. It is worrying that there is a real shortage of planners. We need to get more people in, not just for our planning authorities but for other important organisations, including in the private sector. I am pleased that the Scottish Government is working with partners to begin to widen access to the planning profession. I will never miss the opportunity to agree with colleagues that we need to champion planners and get more of them.
The Government often asks local authorities to take on more responsibilities. Where that is right and proper, we should not make the underresourcing of our public services an excuse not to do things. If we need to talk about how we invest in public services, that is what we should do.
Good points were made by Michael Matheson about spatial planning.
I am not really qualified to contradict the cabinet secretary when she advises the committee that I am encroaching into reserved matters.
Having listened to what members have said, therefore, I will seek to withdraw amendment 515 and I will not move amendment 516. Nonetheless, there could be some further discussion to be had, and I hope that the Government appreciates the intent behind the amendments. It should recognise that many people in Scotland feel that there is unfinished business with regard to the ambitions of the Scottish Executive in 1999 and the questions that were posed at that time. Those questions have still to be answered, and if that is not to happen in this bill, when will it happen?
Amendment 515, by agreement, withdrawn.
Amendment 516 not moved.
Section 7—Duty to publish model lease
The next group is on model leases. Amendment 183, in the name of Tim Eagle, is grouped with amendments 487 and 380. I call Tim Eagle to move amendment 183 and speak to all the amendments in the group.
My amendments 183 and 487 seek to remove the provisions in the bill that will introduce a model lease. Amendment 487 seeks to delete section 7, on model leases.
Realistically, I do not think that I will press the amendments to a vote, but I have lodged them for a reason, which is that stakeholders such as NFU Scotland believe that the current tenancy structure is sufficient. In addition, the NFUS has expressed a wider concern that the provisions in section 7 could result in the removal of land from agricultural production. I strongly support maintaining land, particularly good-quality land, for agricultural production.
The bill as introduced requires ministers
“to make publicly available a model lease designed for letting land so that it can be used ... for an environmental purpose”
via section 7. Section 7(4) sets out what is meant by “environmental purpose”. However, I feel that there is already scope in legislation for land to be used for a variety of reasons, and I therefore do not believe that the model lease is needed.
I am interested in the policy intent behind amendment 380, in the name of Ariane Burgess, on a model lease for hutting, and in the cabinet secretary’s response to that, as I have some concerns that it could be overly burdensome.
I move amendment 183.
I call Ariane Burgess to speak to amendment 380 and other amendments in the group.
Ariane, it is nice to see you here, instead of chairing a committee meeting that conflicts with this one. Over to you.
Thank you, convener—it is good to be here. I apologise to colleagues that I was not able to be at the previous meeting because I was convening the Local Government, Housing and Planning Committee.
Informal buildings, or huts, are important for a number of reasons. They provide a base for outdoor activity; enable the development of better understanding of our natural environment; encourage the development of new skills; provide a platform for the creation of cohesive communities; and contribute to sustainable rural development.
No Government-endorsed model lease currently exists for public bodies that are seeking to create plots of land for hutting. A lease has been trialled at Carnock in south-west Fife to enable a group of hutters to build 12 huts on the national forest estate. Amendment 380 would require ministers to publish a model lease for similar hutting developments that could be used by public bodies in other areas of the country. That would support further public access to land and outdoor recreation, which—I believe—we all understand is badly needed in Scotland.
Thank you, Ariane. Does any other member wish to speak?
As no one wishes to speak, I will just say that I was slightly thrown in some respects by the amendments on a model lease. It would have been far more helpful to have a model lease included in the bill as introduced, so that one could see whether or not it was going to work, rather than considering a suggestion that it should come later.
I am also slightly confused by Ariane Burgess’s suggestion of a model lease for hutters—or for hutting, as it were, rather than hutters. I do not understand whether that lease would be completely separate. Would it be a lease under other legislation, rather than the bill? Would it absolve people who take on a hutting lease from anything to do with an agricultural tenancy or an agricultural holding, or any of the leases in other legislation?
I do not have a huge number of civil servants behind me, but the cabinet secretary does, and I come to her now to explain the amendments.
I turn first to the amendments that were lodged by Tim Eagle. Amendment 183 would mean that, for the purposes of the model lease, land would not be used for an environmental purpose if it was used in a way that contributed towards increasing or sustaining biodiversity. Amendment 487, as Tim Eagle outlined, would simply remove section 7 in its entirety, including the requirement for Scottish ministers to publish a model lease for the use of land for environmental purposes.
18:30I think that it would be a backward step if both those amendments were accepted. It is recognised that we all need to do more in tackling the climate and nature crises. Stakeholders have called for the provisions in section 7 as a means of management that would help community groups looking at managing woodland, for example, or help environmental organisations.
With regard to some of the points that have been raised this evening, there would be wide engagement and consultation on the model lease. That would be vitally important to the work that we take forward—
Would you give way on that point?
Yes.
I understand the need for engagement in coming up with a model lease, but I would like you to clarify one point. Are you suggesting that the terms of a model lease would provide complete freedom of contract for people who wanted to take it on, or would that not be the case? If there is no freedom of contract in the lease, there is a danger that it could fall within the scope of other legislation.
Yes, it would.
There would be complete freedom of contract.
Yes.
Okay—thank you. Sorry.
I turn to amendment 380, which was lodged by Ariane Burgess. I share the aspirations for the type of land use that she is trying to achieve with the amendment. We might consider, for example, that the but-and-bens hutting movement is ultimately about getting people closer to nature, with all the social and health benefits that come from that. However, there are some issues with the amendment—for example, the application of the provision would be limited to public land, when most huts are on private land. A final point is that the model lease for environmental purposes is intended to facilitate a wide range of environmental land uses, and that could well include hutting, where the parties are in agreement with it.
I see your point that, at present, hutting takes place mostly on private land, but there is an incredible opportunity to have hutting happen on public land; that is why the trial is taking place. My amendment is about creating more opportunities, and possibly making it easier in some ways, for people to access that land. In addition, we have to acknowledge that there is quite a lot of public land surrounding communities that could become available to people.
I fully appreciate that, and I am happy to engage with Ariane Burgess on the matter as we move forward and look to work up the model lease, because that is where we could have those conversations.
When we consider the public estate, we should have a presumption of supporting those model leases as well as the creation of small landholdings. The provisions support generational renewal for rural communities; they also support new entrants, and they allow land to be more actively managed in order to meet some of the challenges that we currently face.
While I appreciate the issues the Ariane Burgess is trying to address with her amendment 380, I ask that, on the basis that I have outlined, she does not move it, so that we can take a longer look at some of the issues that she has raised.
Thank you, cabinet secretary. I now go to Tim Eagle to wind up and say whether he wishes to press or withdraw amendment 183.
I simply reiterate the wider point that, while I am to some degree sympathetic to the requirement to tackle the climate and nature emergency, as some people put it, we are an island nation and we cannot make any more land. For me, and—I think—for many people in Scotland, food security is of the utmost importance, and I think that there are risks when we go down the line of starting to give away potentially large swathes of land for environmental reasons. Farmers across the nation are already doing incredible work that brings together food security and work on nature, biodiversity and climate change. That is what I am trying to get across with amendment 183.
Having said all that, however, I will not press amendment 183 or move amendment 487.
Amendment 183, by agreement, withdrawn.
Amendment 487 not moved.
Section 7 agreed to.
After section 7
The next group is on consent to overhead lines. Amendment 379, in the name of Douglas Lumsden, is the only amendment in the group.
Amendment 379 is simple—I think that it is—in that it gives more power to the person who is leasing land and makes sure that they have a say on power lines crossing the land that they lease. How they use the land might have to change once power lines are installed, so they are definitely an interested party and I feel that they should be involved in giving consent for those lines.
I move amendment 379.
I remind members that, as I made clear at the beginning, I am a tenant. If my landlord agrees to put power lines across the land, no payments are due to the tenant for those power lines, so that might be quite important. I am interested to hear what the cabinet secretary says to amendment 379.
Could I ask Douglas Lumsden to clarify something when he winds up? Is the amendment only about overhead lines? Over the years, I have spoken to a number of farmers who have gas pipelines going through their farms, and that has, at times, had quite a significant impact on the productivity of the soil. Sometimes it takes many decades for that soil to lose its compacted, degraded state and to return to productivity. I am not entirely sure where the fixation on overhead lines is coming from, given that lots of energy infrastructure can pass over farmland and might well have a significant impact on an agricultural tenant.
I reflect on the fact that the alternative to pylons is undergrounding, and in that case you are talking about motorway-sized trenches potentially going through sites of special scientific interest and special areas of conservation and running across riverbeds.
Energy infrastructure has an impact. I am just not sure why overhead lines are being targeted—well, I kind of know why they are being targeted, but I am just making the case. I am speaking up for the environment and the productivity of our farmland, which appears to have been ignored in the amendment, but maybe I am wrong.
Mr Lumsden will get a chance to respond to that when he winds up. I call the cabinet secretary.
I realise that amendment 379 follows similar amendments that we have discussed previously. Although the matter is of interest in my constituency, I make it clear that I am appearing before the committee today 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 that is under discussion today is distinct from that constituency interest, and my contributions should therefore be understood as reflecting the Government’s position, not a personal or constituency-specific stance.
As members will be aware, the powers to legislate for the generation, transmission, distribution and supply of electricity are reserved in the Scotland Act 1998. Although I completely understand the concern that tenants might have about electricity infrastructure, amendment 379 is beyond the legislative competence of the Scottish Parliament and, accordingly, I urge members to oppose it.
Douglas Lumsden, you have a chance to wind up, including any comments that you wish to make to Mr Ruskell, and to press or withdraw amendment 379.
I will first address the comments that you made, convener. Payment might be made to the owners of the land, but if lines go above a tenant’s land, the tenant gets no payment at all, and the lines impact how they use that land. If the energy operator wants to access the land, for example, there is an impact.
There is also an impact on what farmers might want to do underneath the lines. Farmers who I have spoken to have raised concerns about whether they are allowed to operate high machinery underneath the lines. I realise that there is guidance from the Health and Safety Executive, but that is quite old now and there are concerns.
Mark Ruskell asked whether amendment 379 is just about electricity lines. Yes, it is, but what he said suggests that I might consider further amendments at stage 3.
I understand what Mark Ruskell says about the environment, but what cost to the environment? A lot of people are very unhappy with the amount of power lines that they see crisscrossing our country. They think that that is a huge cost to the environment that nobody is questioning. It is right that we do that. It is also right that we argue for proper compensation for people who are affected.
I will not push the amendment today.
Amendment 379, by agreement, withdrawn.
Amendment 380 not moved.
Before section 8
Group 28 is on new crofts and small landholdings. Amendment 381, in the name of Rhoda Grant, is in a group on its own. Mercedes Villalba will speak to and move amendment 381.
Thank you very much, convener. Good evening to the committee and the cabinet secretary.
Amendment 381 would ensure that land transfers in key rural areas contribute to small-scale farming opportunities, which supports the bill’s overall objectives and rural sustainability goals. It would insert more equitable and productive land use in crofting and smallholding regions; introduce new obligations for landowners in certain areas of Scotland to create crofts or small landholdings when land is transferred to a new owner; and modify both the Crofters (Scotland) Act 1993 and the Small Landholders (Scotland) Act 1911.
For crofts, when land in crofting areas such as the Highlands and Islands or other designated regions is sold or transferred, the new owner must apply to the Crofting Commission to convert part of the land into a new croft. That would ensure that land sales in crofting regions actively contribute to croft creation.
For smallholdings, the amendment would require the Scottish ministers to create regulations providing that, when new landowners acquire land, they must seek to constitute part of the land as small landholdings. The regulations would follow the affirmative procedure, which means that they would require parliamentary approval.
I move amendment 381.
Having read the amendment carefully, I am unclear about how many new crofts or how many small landholdings would have to be created. That creates questions, which would mean that the regulations would constantly be challenged.
I also struggle with whether the amendment takes into account crofting estates and how new crofts would be created without causing problems to the original crofting owners, and whether, on those estates, the areas that might be included would include a share of the common grazings, which would completely skew the use of the common grazings of the remaining crofters.
As far as the Small Landholders (Scotland) Act 1911 is concerned, we have very few small landholders within that act. I can never remember quite how many there are, but I think that the number is around 70 or 80, or maybe fewer—maybe it is in the 60s. I do not know; the cabinet secretary will no doubt explain that. The evidence that we took from the people who are involved in this suggested that, rather than creating more, they would rather move such landholdings into agricultural tenancies, which may be the way forward to protect them and ensure that they survive. However, I will go to the cabinet secretary on those points.
You will be pleased to know that you were not far off; we believe that there are about 51 to 59 small landholdings, so you were nearly there.
I appreciate the intent of what Rhoda Grant is trying to achieve through amendment 381, which Mercedes Villalba has spoken to, because crofts and small landholdings are key parts of the mix of tenures that we need in Scotland.
However, I cannot support the amendment as it is set out today, because there are a number of issues with it. The scope of the amendment is wide and it would apply to all land and all transfers. We also run into difficulty whenever we mandate that somebody must do something with their land or property. Instead, there should be a focus on the Crofting Commission prioritising bringing all current neglected crofts back into active use and for more active use of common grazings.
It is vital that croft land serves crofting communities well, because that is key to ensuring that we have a vibrant future for crofting. Provided that land is situated in the crofting counties, or in the designated areas, a landowner can apply to the Crofting Commission to have that land or part of it constituted as a croft. That is an existing and better solution to the same issue.
In the next group, we will consider amendments on the modernisation of the small landholdings legislation, which would include the creation of new small landholding tenancies. We should give those reforms time to have effect before adding new requirements, particularly such broad ones, because the reforms that we are introducing will help to address the issue with new entrants outwith the crofting areas and ensure that the legal framework that we have is more accessible and fit for the 21st century.
For those reasons, I ask members not to support the amendments.
18:45
I thank the cabinet secretary, and I come back to Mercedes Villalba to press or withdraw amendment 381.
I thank the cabinet secretary for her response, which Rhoda Grant will respond to. I am sure that she will be in touch to discuss the issue further, and she is aware that there are later amendments that seek to address some of the issues that she was looking at. On that basis, I withdraw amendment 381.
Amendment 381, by agreement, withdrawn.
Section 8 agreed to.
Schedule
We move on to small landholdings: general. Amendment 488, in the name of the cabinet secretary, is grouped with amendments 489, 490, 508, 508A, 508B, 509, 491, 492, 510, 493 to 496, 216, 511, 498, 499, 512, 500, 506 and 513. I call the cabinet secretary to move amendment 488 and speak to all the amendments in the group.
The Government’s amendments in this group will take a major step towards consolidating and modernising our current small landholdings legislation, which dates from 1886 to 1931, ensuring that the legislation is fit for purpose and, ultimately, enabling it to meet the needs of Scotland’s existing small landholders, the next generation of small landholders and new entrants. It will also give greater clarity to landlords.
The amendments build on the changes that are already in the bill and modernise other important areas in the existing small landholdings legislation. Amendment 488 makes a number of changes to modernise the process of creating new small landholding tenancies and brings new and existing small landholdings within the scope of the schedule. The provisions set out important aspects of what a small landholding is, including who can be a small landholder and the types of land that are able to form part of a small landholding.
The changes make it easier to create a small landholding tenancy, remove references to redundant legislation and reform aspects of the existing process, including in relation to registration. Creating more small landholdings is a positive step for the next generation of farmers and small producers. The amendment also sets at 20 hectares the upper size limit for new small landholding tenancies entered into under the schedule, and it includes a power enabling the Scottish ministers to amend that in the future.
Repealing the provisions on the register of smallholdings that was created prior to world war one is really poignant. In St Andrew’s house, there is a marble memorial to staff of the Board of Agriculture who lost their lives in the great war. It was those people who held the register, and then, following their deaths, the main paper register was lost. It has never been recovered or kept up to date.
Amendment 508 further consolidates and modernises areas of the Small Landholders (Scotland) Act 1911. It sets out important provisions on the terms of the landholder’s tenancy, including how they must use the landholding and the landlord’s rights of access on to the holding. It entitles the landholder to compensation for damage from game or game management, which broadly mirrors what is in section 20 of the bill in relation to agricultural holdings.
When we were taking evidence during stage 1, there seemed to be an appetite—certainly when we spoke to the smallholders—for an agriculture law rather than the creation of new legislation to strengthen old legislation that was perhaps failing. Why did you discount that, and why do you think that what you propose is better when every iteration that I have seen of changes to the crofting acts has added problems and created further confusion and further dilemmas about which act to respond to with regard to crofting?
That is where those amendments are important. To me, they address exactly that point by bringing the legislation into one place, to consolidate it and modernise it rather than keeping the redundant provisions. I do not agree that we discounted the views of small landholders on the issue, because, ultimately, what we are doing with this set of amendments, and with our amendments in later groups, is aligning all the provisions with the small landholdings and agricultural holdings provisions. I believe that that addresses the points that you raise.
Amendments 508A and 508B, in the name of Tim Eagle, seek to amend those changes to remove indirect damage from the type of game damage that the small landholder is entitled to be compensated for where damage has been caused by game or game management. That would result in the small landholder being entitled to be compensated only for direct damage. We have heard from stakeholders about the significant losses that can be incurred as a result of indirect damage to holdings and that it is important that small landholders and tenants are fairly compensated. That is why I would ask members not to support amendments 508A and 508B.
A fair compensation process that accounts for the damage caused by inadequate game management is needed. There is already extensive guidance that parties and the court can have regard to, including Animal Health and Plant Agency guidance, guidance for the shooting industry on reducing avian influenza disease risk, Scottish Government guidance on the declaration of an avian influenza prevention zone, and the shooting industry’s standing advice on bird flu and game birds. As I have done for tenant farmers and their landlords, I intend to ensure that training on assessing game damage will be made available to small landholders and their landlords in advance of game damage provisions coming into force.
Amendment 510 consolidates and modernises the provisions for small landholders’ security of tenure and the grounds on which they can be removed from the holding. Amendments 506 and 513 concern the parliamentary procedure for regulations that are made under the powers that are provided for in other amendments in the group. Amendment 506 provides that the regulations that are created under amendment 488, which enable the Scottish ministers to vary the upper size threshold for a small landholding or the land that can be taken into account in calculating the size of a holding, are to be subject to the affirmative procedure. Amendment 513 provides that regulations that are made under the compensation for game damage provisions are to be subject to the negative procedure, which is consistent with the equivalent powers for agricultural holdings in section 20.
Amendment 216, in the name of Tim Eagle, relates to the ability of the Scottish ministers to specify by regulations the basis on which a valuer is to assess the compensation payable to a small landholder. The bill simply provides a mechanism for future flexibility, if required, and it sets out that changes would be made by regulations. The amendment would require the Scottish ministers to make regulations for every valuation, even if they were not considered necessary, which I do not think is proportionate for either party. That is why I do not support amendment 216.
Amendment 499 restates an existing provision that limits the ability of parties to contract out of the rights of small landholders under the schedule. Amendment 511 repeals redundant sections of the landholders acts and sets out which areas will continue to apply to small landholdings. Amendments 500, 509 and 512 change various definitions in the schedule, including those of small landholding and cultivation. The other amendments in the group—amendments 509, 512, 491 to 496 and 498—make consequential or minor changes to the terminology used in order to reflect the changes provided for in the other amendments in the group. Combined, the changes have the potential to reinvigorate the small landholding sector and breathe new life into smaller areas that are suitable for new entrants to access. I ask members to support my amendments.
I see that the convener is making eyes at me, as if he wants to intervene.
I do not think that I have been making eyes at you, cabinet secretary, but I was trying to get your attention.
Some of the issues that have come up with crofting are neglected crofts and crofts that are not being used. However, I do not see anything in the legislation that deals with those specific problems in relation to smallholdings, nor do I see anything similar regarding crofts that deals with occupancy and where the crofter needs to be. Did you consider those issues? If you did, why are they not in the legislation?
In relation to the crofting element, I am sure that the convener will be aware that we have introduced crofting legislation, which covers some of the most pertinent issues.
My point was that you have introduced legislation on crofting and that the Crofting Commission will enforce that for crofts that are left unoccupied or are not properly being used, but there is nothing in the legislation regarding smallholdings. Are you content that the situation with crofts will never happen on smallholdings when you are giving them that extra protection?
The key thing that we have been trying to do with the small landholding legislation is consolidate it, modernise it and repeal the redundant provisions rather than introduce anything particularly new. However, it is also important to set out that the amendments that we are introducing remove the need for the register of small landholdings, too.
I am sorry that I interrupted you as you were winding up. Have you finished your contribution?
Yes I have, convener.
I move amendment 488.
I call Tim Eagle to speak to amendment 508A and any other amendments in the group.
I thank the cabinet secretary. The remarks that have been made already give some comfort on this matter, but I will try to explain where I was coming from with amendment 508A.
Proposed new paragraph 5E, which amendment 508 will insert into the schedule, allows the landholder to be compensated for game management damage to the landholding. Amendment 508A would clarify that that part of the schedule—and thus compensation—would apply only to direct damage.
Requiring the damage to be direct would make the law far more certain and improve its enforceability while minimising costs to all parties. As drafted, the provision creates a wide and slightly unclear definition. The current scope of compensation raises significant legal questions, particularly regarding causation and the evidentiary challenges that are associated with disease transmission. As a result, claims against landowners outwith direct causation could encompass a wide range of losses over which they may have little or no control. Therefore, amendment 508A seeks to ensure that a tenant can claim compensation only for direct damage.
My amendment 508B would further amend amendment 508 at subparagraph 5E(2), which states:
“The landholder is entitled to be compensated by the landlord where game or game management have caused the landholder to sustain”
damage
“(whether directly or indirectly)”.
Amendment 508B seeks to delete the phrase “(whether directly or indirectly)”. Together with amendment 508A, that would ensure that the tenant would be able to receive compensation only for damage directly sustained.
Amendment 216 seeks to strengthen the requirement on ministers to set out by regulations the basis on which the valuer is to assess the compensation payable. Currently, the bill says:
“The Scottish Ministers may by regulations modify this paragraph so as to specify the basis on which the valuer is to assess the compensation payable and the consideration to be given to certain matters by the valuer in doing so.”
The valuer is currently allowed to assess the amount of compensation to which the landlord or small landholder is entitled under that part of the schedule. Amendment 216 would change that requirement from “may” to “must”. That would mean that the Scottish ministers would have a duty to specify the basis on which the valuer is to specify the compensation payable.
If no one else wants to contribute, you get the chance to wind up, cabinet secretary.
I do not have anything further to add at this point, convener.
The question is, that amendment 488 be agreed to. Are we agreed?
No—oh, sorry. Yes.
It is early enough in the evening to confuse me, Mr Matheson.
I am always getting my numbers mixed up, like you, convener.
Amendment 488 agreed to.
Amendments 489 and 490 moved—[Mairi Gougeon]—and agreed to.
Amendment 508 moved—[Mairi Gougeon].
Amendment 508A moved—[Tim Eagle].
The question is, that amendment 508A be agreed to. Are we agreed?
Members: No.
There will be a division.
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 508A disagreed to.
Amendment 508B moved—[Tim Eagle].
The question is, that amendment 508B be agreed to. Are we agreed?
Members: No.
There will be a division.
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 508B disagreed to.
19:00
The question is, that amendment 508 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
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)
Against
Lumsden, Douglas (North East Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
The result of the division is: For 5, Against 2, Abstentions 0.
Amendment 508 agreed to.
Amendments 509, 491 and 492 moved—[Mairi Gougeon]—and agreed to.
I am just trying to work out when the best moment is for a brief pause. I will push on a bit in the hope that that entices you all to keep moving in the right direction.
The next group is on assignation and succession. Amendment 184, in the name of the cabinet secretary, is grouped with amendments 185 to 215, 230 to 233 and 305 to 308. I ask the cabinet secretary to move amendment 184 and speak to all the amendments in the group.
The purpose of the amendments in this group is to update the assignation and succession provisions for tenant farmers so that they align with the small landholdings provisions in the bill and to make a number of related and minor changes for clarity.
The main amendments in the group, amendments 230, 233, 305, 306 and 308, update the descriptions of the people to whom a lease under the 1991 act or the 2003 act can be assigned or passed in a person’s will. Those amendments make related changes to the definition of “near relative” across the assignation and succession provisions applying to tenant farmers, to reflect the updated descriptions.
The amendments also make procedural and technical changes, including the alignment of timescales in which a landlord can intimate that they are withholding their consent or are objecting to a proposed new tenant with those for small landholdings and the requirement that a person who succeeds a lease in a succession scenario must specify their relationship to the deceased tenant in order to help determine whether the person is a near relative. Those changes align the provisions for those forms of tenure with those in the bill for small landholders.
Amendments 208, 210, 212, 215 and 306 modify the succession provisions for small landholders and tenant farmers regarding the date on which the tenancy applies to an incoming small landholder or tenant following an objection by the landlord. Under the current provisions, those dates are inconsistent in relation to intestate scenarios and where the landlord objects to the person becoming the new tenant or small landholder. The amendments clarify and align the positions for both small landholders and tenant farmers.
Amendment 307 modernises the language in section 12C of the Agricultural Holdings (Scotland) Act 1991 to reflect the equivalent provisions for small landholdings in the schedule. The other amendments in the group are mainly minor. They are consequential or technical changes to the small landholdings or tenant farming provisions.
Amendments 184 to 205 and 213 make minor drafting changes. As you will probably be relieved to hear, the majority of those just make a grammatical change to the small landholdings provisions.
Amendments 206, 207, 209, 211 and 214 are minor drafting changes to the small landholdings provisions, amending references to “tenant” to “small landholder” for consistency with other parts of the schedule.
With that, I hope that the committee can support the amendments in my name in this group.
I move amendment 184.
Amendment 184 agreed to.
I now require a bit of concentration from everyone, as I have a long list of amendments.
I call amendments 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 510, 493, 494, 495 and 496, all in the name of the cabinet secretary and all previously debated. I think that I got those right; if I got them wrong, let me know. I invite the cabinet secretary to move all those amendments—I will not repeat them all.
Amendments 185 to 215, 510 and 493 to 496 moved—[Mairi Gougeon].
The question is, that amendments 185 to 215, 510, 493 and 496 be agreed to. [Interruption.] Sorry—I knew that I would get that wrong. I will clarify that. The question is, that amendments 185 to 215, 510 and 493 to 496 be agreed to.
Amendments 185 to 215, 510 and 493 to 496 agreed to.
Right—I need to get back online with the script.
Amendment 216, in the name of Tim Eagle, has been debated with amendment 488. Do you wish to move or not move the amendment, Tim?
Apologies, convener—what number did you say?
Don’t do this to me, Tim. We are on amendment 216, which has been debated with amendment 488.
Amendment 216 moved—[Tim Eagle].
The question is, that amendment 216 be agreed to. Are we agreed?
Members: No.
There will be a division.
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 216 disagreed to.
Amendment 217 not moved.
I am going to pause at this stage. I ask members to be back by a quarter past 7 for the final hurrah.
19:07 Meeting suspended.
I welcome everyone back to this meeting of the Net Zero, Energy and Transport Committee, as we continue our stage 2 deliberations on the Land Reform (Scotland) Bill.
We move to the next group, which is on rights to buy. Amendment 497, in the name of the cabinet secretary, is grouped with amendments 218, 221, 222, 224 to 229 and 309.
I call the cabinet secretary to move amendment 497 and speak to all amendments in the group.
This group relates to the pre-emptive right-to-buy process for small landholders and 1991 act tenant farmers. The changes align the processes for those forms of tenure and make related amendments.
Amendment 225 modifies the right-to-buy measures for secure 1991 act agricultural tenancies and enables a tenant to exercise their right to buy when a landlord takes certain steps with a view to transferring the land and then fails to notify the tenant. The amendment clarifies when the tenant can exercise their right in those circumstances and aligns the position for tenant farmers with the small landholding provisions. The amendment also enables the Scottish ministers to make regulations for the timescales in which a tenant will be required to notify their landlord that they intend to buy the land. Those regulations would be subject to the affirmative procedure.
Amendments 221 and 309 provide for equivalent regulation-making powers in respect of small landholding provisions. Amendment 228 is related to amendment 225 and clarifies the date on which the land is valued in those circumstances. It also makes minor technical changes.
Amendments 224 and 229 make minor and technical changes to the right-to-buy measures for secure 1991 act agricultural tenancies, including the timescales in which an owner must send a copy of the extract of the tenant’s registration of interest to a creditor and any standard security.
Amendment 497 relates to small landholdings and makes a consequential change following on from amendment 488, in the group on small landholdings, which provides that the schedule does not apply to sub-leases. Amendment 497 removes the reference to excluding sub-tenants in the schedule, because it is redundant following the committee’s agreement to amendment 488.
I turn to Tim Eagle’s amendments 222 and 226, which seek to limit the powers in the bill for the Scottish ministers to make regulations for how small landowners and tenants can register their interest in acquiring the land comprised in their tenancy. We consider that the process of registering an interest in land should not be unduly burdensome and should enable transparency for parties who transact with the land. We consider that that is best achieved by working in partnership with stakeholders and Registers of Scotland to develop an improved registration process, and there is support for that from stakeholders more widely.
Amendments 222 and 226 would restrict the ability of the Scottish ministers to develop regulations in a way that meets stakeholders’ needs. The powers in the bill as currently drafted will enable ministers to give effect to an appropriate co-developed process, and the regulations will be subject to the affirmative procedure.
Amendment 218, from Tim Eagle, seeks to limit the ability of the Scottish ministers to update the list of exempt transfers that do not trigger the small landholders’ right to buy, and would require that the list could only be expanded. The power in the bill allows ministers to take into account how the measures are operating in practice—if ministers could only add transfers to the exempt list, that would limit their flexibility to respond to any changing circumstances in the future and to make changes quickly. The power to change the exempt transfer list needs to be sufficiently wide to enable the removal or modification of any transfer on the exempt list in order to ensure that the process operates in a fair and transparent manner. I ask the committee not to support that amendment.
Tim Eagle’s amendment 227 would require ministers to consult
“organisations with an interest in agricultural holdings”
before exercising the power to make regulations regarding the registration of a tenant’s interest under the 1991 act. The power already requires ministers to consult the keeper and the other persons who are
“likely to have an interest in the registration of interests to acquire land.”
Therefore, the consultation would already take place.
Although I do not think that it is necessary, and its wording is not quite right, I am happy to work with Tim Eagle on amendment 227 in advance of stage 3 and I ask that he does not move it today.
I move amendment 497.
I now ask Tim Eagle to speak to amendment 218 and any other amendments in the group.
My amendment 218 would amend the part of the schedule that deals with “Transfers not requiring notice”, which is paragraph 49.
As drafted, the bill allows ministers to amend that paragraph by regulation—they could make changes to subparagraphs (1) to (4). Those cover a significant number of provisions, which deal with the reasons why a transfer of land would be exempt from providing
“Notice of proposal to transfer land”,
which is outlined in paragraph 48 of the schedule and applies to certain instances.
Amendment 218 would restrict the ministers’ powers and mean that the only change that ministers can make by regulation to paragraph 49 would be to add to the list of
“transfers of land that are exempt transfers for the purposes of paragraph 48”.
My amendment 222 has a similar ambition. As drafted, the bill includes a paragraph in the schedule titled:
“Registration of small landholder’s interest: power to modify provisions”.
It includes a subparagraph that will allow ministers to modify various previous paragraphs. Those powers are too broad in scope and the subparagraph should be more narrowly drafted, which is what my amendment 222 aims to do.
I lodged some amendments to amendment 225 today, which I think that we will discuss next week, and I will not move amendment 226 because my new amendment 543, which we will also discuss next week, replaces it.
In light of what the cabinet secretary has just said, I will not comment on amendment 227. I will be happy to work with her on the amendment over the summer.
Cabinet secretary, do you have a long wind-up comment on this group?
I do not have anything further to add, convener.
Amendment 497 agreed to.
Amendment 218 moved—[Tim Eagle].
The question is, that amendment 218 be agreed to. Are we all agreed?
Members: No.
There will be a division.
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 218 disagreed to.
I call Tim Eagle to move or not move amendment 219.
Amendment 219?
Amendment 219, Mr Eagle—I got the numbers in the right order.
Sorry, yes—it is in front of me.
Amendments 219 and 220 not moved.
Amendment 221 moved—[Mairi Gougeon]—and agreed to.
Amendment 222 not moved.
Amendments 511, 498, 499, 512 and 500 moved—[Mairi Gougeon]—and agreed to.
Schedule, as amended, agreed to.
Section 9—Extension of Tenant Farming Commissioner’s functions
Amendment 528, in the name of Fergus Ewing, is grouped with amendments 223, 501 and 502. I welcome Fergus Ewing and ask him please to move amendment 528 and speak to all the amendments in the group.
In this group alone?
In this group, yes.
Thank you for having me as a guest to the committee, convener, and thank you to your members. I am here because Scottish Land & Estates, on behalf of landowners, invited me to move a series of amendments—
Sorry, Mr Ewing, I cannot hear your dulcet tones as well as I would like to. Can you adjust the microphone? That is it. Thank you.
I was just saying, convener, that I am here because Scottish Land & Estates contacted me some time ago to ask whether I would be willing to lodge amendments in relation to the right of resumption, as set out in the act. Since those amendments were substantially agreed by the Scottish Tenant Farmers Association, I agreed to do so on the basis that both tenants and farmers agree with the approach that I am about to advocate.
I say that by way of background. Although I have not received written confirmation from the STFA that that is the position, I have spoken to Chris Nicholson and believe that to be the case. I will set out what I have to say in more detail on Tuesday morning, when I hope to appear virtually, convener, rather than in person. I thought it fair to offer that explanation.
Members will be pleased to know that I will be brief. Amendment 528, in my name, is related to my amendments in the next group, which aim to introduce an alternative for fairly compensating a tenant when a part of a tenancy is resumed. There are two situations when the tenant’s interest in the lease might need to be valued, and my amendment seeks to clarify that the tenant farming commissioner may issue a code of practice in relation to both.
The first is when only part of a tenancy is resumed. My amendments in the next group address that situation, which I will come to with your permission, convener, on Tuesday morning. The other scenario is when an incontestable notice to quit is served and the tenant is giving up the whole of the holding rather than part. My amendments in the next group do not specifically cover that scenario, but I expect that, if progress can be made now on how to deal with partial resumption, similar provisions could be lodged at stage 3 to deal with a notice to quit. Amendment 528 would enable the tenant farming commissioner to issue guidance for both scenarios.
As I will come on to in the next group of amendments on Tuesday morning, amendment 528 and those that are associated with it have widespread industry support. I am grateful to the organisations comprising the tenant farming advisory forum, which I understand include SLE, the STFA, the NFUS, the two valuers associations—the Central Association for Agricultural Valuers and the Scottish Agricultural Arbiters and Valuers Association—and the Agricultural Law Association. As you and members will know, convener, there is a great body of expertise in all those groups. They have come forward with that option and, as I understand it, have been in discussion with the minister’s officials for some considerable time.
Therefore, there is hope among both sectors that the broad approach that they have suggested, rather than that which is currently set out—for reasons that I cannot come to now because they are relevant to the amendments in the next group—might find favour with the minister.
I move amendment 528.
Thank you very much, Mr Ewing—oh, that was very formal. I will be less formaI and say thank you very much, Fergus.
I call Tim Eagle to speak to amendment 223 and any other amendments in the group.
Amendment 223 relates to section 9 of the bill and deals with the extension of the tenant farming commissioner’s functions. I do not intend to press it—it is more of a probing amendment.
Section 9 largely modifies the Land Reform (Scotland) Act 2016, and the bill seeks to keep reference to the 1991 act and the Land Reform (Scotland) 2003 Act, and to add reference to section 30 of the Crofters Holdings (Scotland) Act 1886, which I am sure that you are all very familiar with.
For clarity, section 30 of the 1886 act allows for a sole arbiter to be chosen. It states that
“the landlord and the crofter may agree to accept the decision of a sole arbiter mutually chosen instead of the decision of the Crofters Commission, and in that case any order pronounced by such sole arbiter shall, when recorded in the ‘Crofters Holdings Book’ along with the agreement to accept his decision, be as effectual to all intents and purposes as an order of the Crofters Commission”.
My amendment would delete the modifications that the bill makes to subsection (9) and would, in effect, delete section 30 of the 1886 act. I raise the issue because I have heard concerns from stakeholders that including section 30 of the 1886 act could introduce an absolute right to buy. Therefore, I am looking for the cabinet secretary’s guidance in order to get clarity on the effect of this provision.
19:30
Thank you, Tim. I now turn to Emma Harper—welcome. I invite you to speak to amendment 501 and any other amendments in the group.
Thanks, convener. I am pleased to join you. I will speak to amendments 501 and 502, and I thank the cabinet secretary and the team for meeting me to discuss these amendments. It is helpful to be able to explain the purpose and, like Mr Ewing, I have had guidance on my amendments from tenant farming professionals.
Amendment 501 concerns a provision on an application to the tenant farming commissioner to inquire into a breach of the code of practice. I propose to expand the class of persons who can make a complaint to the commissioner when a breach of the code of practice is suspected. At the moment, a tenant farming commissioner can investigate only if a landlord or a tenant chooses to make a complaint. I would like to amend section 29(1) of the 2016 act by inserting:
“(c) is a near relative of a person mentioned in paragraph (a) ... or appears to the Tenant Farming Commissioner to represent the interests of landlords or tenants of agricultural holdings”.
This expansion to the persons who are able to make a complaint would include inserting the language of “near relative”, which means that a near relative could make an application to the tenant farming commissioner to initiate an inquiry into whether there has been a breach of the code of practice. The term “near relative” is defined in agricultural legislation, and I propose to allow ministers to determine the definition of “near relative”—whether that would include parents, siblings, brother-in-law and so on.
Single tenants can be reluctant to make a complaint if relationships are going poorly for the landlord and the tenant, and it is difficult to raise a concern, which can affect a tenant’s and their family’s mental health, which is why I propose adding the wording:
“is a near relative of a person mentioned in paragraph (a)”.
Proposed new paragraph (d) refers to a person who
“appears to the Tenant Farming Commissioner to represent the interests of landlords or tenants of agricultural holdings”.
Concerns are often raised by landlords and tenants—even multiple tenants who share the same landlord. Some tenants and landlords already raise concerns and seek advice from representative organisations, including the NFUS, SLE, the STFA and even the Royal Scottish Agricultural Benevolent Institution. RSABI is a charity with the purpose of supporting farmers, including when support for mental health is a priority.
Expanding the class or type of people or organisations who are able to request the tenant farming commissioner to investigate poor practice or potential breaches of code, including near relatives, would allow the commissioner to step in to resolve issues more directly.
Amendment 502 would modify the 2016 act by inserting:
“Having determined in a report on an inquiry under section 33 that the code of practice has been breached, the Tenant Farming Commissioner may, by notice, impose a fine on the person that committed the breach.”
Examples of breaches that could be resolved by the tenant farming commissioner’s intervention and recommendation, rather than by proceeding to the Scottish Land Court, include disagreements that may be related to game management, management of leases and—
I would like a bit of clarity on amendment 501. Am I right in thinking that it would mean that a near relative could make a complaint, even if the tenant themselves did not want to make a complaint?
Potentially. At the moment, those complaints may not be raised, so the amendment would give an opportunity for a near relative to raise a concern.
I wanted to raise this point earlier—it is an interesting issue—because my experience is that a tenant’s family often does not necessarily agree with the tenant, although the tenant is quite happy. I am worried that that will create a situation where the tenant is overridden by a family member who might have other reasons for raising a concern that are in their interests but not in the tenant’s interests. I wonder how that will be addressed.
In my conversations about the issue, family members often recognise that there are challenges because tenants might not wish to raise concerns. If there is an absence of information or things that need to be clarified, I am happy not to press the amendment and to have further discussions about it. However, my understanding from the professionals I have spoken to is that, sometimes, it is necessary for other people to raise an issue, and amendment 501 would afford families the ability to support a tenant who might not wish to come forward on his or her own.
Let me go back to amendment 502, which would allow the tenant farming commissioner flexibility to intervene in proposing or requesting an investigation into any breach of a code that might be resolved more quickly and directly with intervention and recommendations—recommendations that will more likely lead to arbitration. Resolution could then be obtained more effectively, efficiently and in a more timely manner.
Intervention means that any disputes could be assessed and potentially resolved, incurring less cost, including, for example, when a breach of the code of practice is made. There would then be an opportunity for the breach to be remedied. Amendment 502 allows the commissioner to consider evidence of whether a person has committed a breach of the code of practice, whether it is a first-time breach and whether they have had the opportunity to remedy it and then failed to correct the breach.
The commissioner can then have regard to whether there have been previous failures or failures to comply with the code of practice. Finally, they could apply a sanction of a fine. In essence, amendment 502 provides the tenant farming commissioner with more teeth to support the landlord and the tenant and could provide a more balanced approach to ensure that good practice is followed.
That is the longest that I will speak on any of my amendments.
You should not be worried about the length of your speeches, because they clarify the amendments, so thank you very much. I do not think that any other member wishes to comment, so I will come to you, cabinet secretary.
I understand Fergus Ewing’s reasons for amendment 528 and the need for clarity on the basis for the valuation for resumption. It is not necessarily necessary for the 2016 act to detail all the topics that the tenant farming commissioner can issue codes of practice on, but I appreciate why the tenant farming sector might also wish to see that in the bill itself. There are some particular issues with the wording of the amendment, but I am happy to work with Fergus Ewing to revise amendment 528 ahead of stage 3, so, on that basis, I ask him not to press the amendments at this stage.
Tim Eagle’s amendment 223 seeks to reverse the changes that the bill makes to provide that regard is given to the relevant code of practice during arbitration proceedings concerning a small landholding. The provision is equivalent to that for tenant farmers and reflects the expanded scope of the tenant farming commissioner in relation to small landholdings under section 9 of the bill. Ultimately, the amendment would mean that a code of practice would not have the same status in arbitration proceedings relating to small landholders as it would for proceedings relating to tenant farmers.
I was not sure what the rationale behind the amendment was, so I appreciate what Tim Eagle has outlined today. However, I want to clarify that the provision relates to codes in an arbitration context, not an absolute right to buy. However, if he wants to engage in further discussion with me about that, I am more than happy to do that.
I will now turn to Emma Harper’s amendments. Although I understand the reasons behind amendment 501, expanding the group of people who could apply to the TFC requires more consideration in order to assess whether the current procedures for reporting an alleged breach would continue to be suitable. I absolutely recognise the importance of RSABI’s work and its importance to the industry, which has been touched on, including in relation to some of the delicate situations that it has to navigate.
I recognise that the amendment would also appear to enable representative bodies in the sector to report alleged breaches to the TFC in relation to their members or people they might be engaging with. Again, we will have to consider the wider implications of that and any potential unintended consequences. However, I would like to work with the member to explore the issue further and to ensure that the process for reporting breaches meets the needs of those in the sector. I would ask her not to move amendment 501 today.
In relation to amendment 502, I appreciate that some in the tenant farming sector would like to see increased powers for when the TFC finds that a person has not complied with a code of practice. The purpose of the codes of practice is to encourage and promote best practice in how landlords and tenants manage their relationships. However, parties are not required to comply with the terms of a code of practice—it is guidance. That means that there would be significant difficulty with imposing penalties for non-compliance. Any changes to the role of the tenant farming commissioner in that context would need to be considered more widely than solely looking at the question of enforcement. We would have to go through some robust stakeholder engagement as part of the process.
I am happy to commit today to consulting on the role of the tenant farming commissioner in inquiring into and reporting on alleged breaches of codes of practice. Any consultation could consider wider matters, and I would aim for such a consultation to take place and to report before the end of the current parliamentary session. On that basis, I ask Emma Harper not to move amendment 502.
I now come to Fergus Ewing to wind up and press or withdraw amendment 528.
I am grateful for the cabinet secretary’s assurance, and I am happy to work with her with the objective of coming up with a legally sustainable and accurate form of the amendment. I believe that both the SLE and the STFA accept that there are technical infelicities in the amendment, and I may have communicated those to the officials. If not, I suspect that they will be listening and I may do so before the night is out—who knows?—if they are at their desks.
Can I ask a question of the member before he completes his winding up? It is on the issue of compensation at the end of a tenancy, especially a 1991 act tenancy, where it is allowed under the lease, which is the only way that a resumption can be allowed. Given your offer to work with the cabinet secretary, Mr Ewing, would you consider including me in the group that discusses the issue with the cabinet secretary? I think that the provisions for tenancies under the 1991 act, where resumption is considered, are not sufficient and need to be upgraded, so I would like to be included in that conversation.
Of course, convener. That is a good suggestion—your expertise as a former surveyor with your interests would bring extra experience and wisdom to the table.
What you say is one reason why I believe that the SLE and the STFA feel that another solution is required for tenancies under the 1991 act, although the position is different under the 2003 act, as we might come on to on Tuesday. My understanding is that the scheme that is proposed in the bill does not really meet modern circumstances. It is a bit out of date as it is based on land values. It does not really reflect the reality or the costs to the tenant of partial resumption, when new gates and fences are required to be erected, and so on.
We will come to all that on Tuesday. This was always a probing amendment, as I indicated to the cabinet secretary, so that we could have this discussion, for which I am grateful. I know that her officials will continue their dialogue with the various interests, and I am sure that that means that the law will have a better chance of not falling foul of the European convention on human rights or other hazards. On that basis, I seek to withdraw amendment 528, with the committee’s permission.
Amendment 528, by agreement, withdrawn.
Amendment 223 not moved.
Section 9 agreed to.
After section 9
I call amendment 501, in the name of Emma Harper, already debated with amendment 528. Emma Harper to move or not move.
Given what the cabinet secretary has said and the willingness to meet me to further discuss, I will not move amendment 501.
Amendment 501 not moved.
Thank you, Ms Harper. I am giving you a bit of leeway this evening. I am usually quite strict about members saying only whether they are moving or not moving an amendment. You have got your comment there, and we will not need to do that again. I encourage members not to do that.
Amendment 502 not moved.
We have got to where we needed to get to this evening so I will now pause stage 2 proceedings for today. We will continue our consideration on Tuesday 24 June. It is still my aim to complete stage 2 in time to meet the end of June deadline. I warn members who wish to contribute that we will start at 8.40 on Tuesday. Mr Ewing, it will, as always, be delightful to see you, even if you are only virtual at that stage.
With that, I close the meeting.
Meeting closed at 19:46.Previous
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