Rural Affairs, Climate Change and Environment Committee

Meeting date: Wednesday, March 11, 2015

Official Report 577KB pdf

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Community Empowerment (Scotland) Bill: Stage 2

Good morning, everybody, and welcome to the 10th meeting of the Rural Affairs, Climate Change and Environment Committee in 2015.

Before we move to the first item on the agenda, I remind people that mobile phones should be switched off, as they can affect the broadcasting system. However, committee members may use tablets for the business of the meeting.

Agenda item 1 is stage 2 of the Community Empowerment (Scotland) Bill. Today we will consider further amendments to the bill. I welcome to the meeting the Minister for Environment, Climate Change and Land Reform, Dr Aileen McLeod, and her officials. Dr McLeod is accompanied by Stephen Pathirana, Dave Thomson, Rachel Rayner, Elizabeth Connell and Annalee Murphy.

I now have to read this out—it is nearly as long as one of the explanations from the minister last week about a certain amendment.

Everyone should have with them a copy of the bill as introduced, the marshalled list of amendments, which was published on Monday, and the groupings paper, which sets out the amendments in the order in which they will be debated.

There will be one debate on each group of amendments. I will call the member who lodged the first amendment in the group to speak to and move that amendment, and to speak to all the other amendments in the group. Members who have not lodged amendments in the group but who wish to speak should indicate that by catching my attention in the usual way. If the minister has not already spoken on the group, I will invite her to contribute to the debate just before I move to the winding-up speech.

The debate on each group will be concluded by me inviting the member who moved the first amendment in the group to wind up. Following the debate on the group, I will check whether the member who moved the first amendment in the group wishes to press it to a vote or to withdraw it. If the member wishes to press the amendment, I will put the question on the amendment. If a member wishes to withdraw their amendment after it has been moved, I will check whether any other member objects. If any committee member does object, the amendment is not withdrawn and the committee immediately moves to a vote on it.

If a member does not wish to move their amendment when it is called, they should say “Not moved.” Any other MSP present may move the amendment. If no one moves the amendment, however, I will immediately call the next amendment on the marshalled list.

Only committee members are allowed to vote. Voting on all divisions is by a show of hands. It is important that members keep their hands clearly raised so that the clerk can record the vote. The committee is required to indicate formally that it has considered and agreed to each section of the bill, so I will put a question on each section at the appropriate moment.

This is our second day of consideration of amendments at stage 2. [Interruption.]

Section 48—Abandoned and neglected land

We come now to section 48 and the first grouping of amendments, on land which is eligible to be bought under part 3A of the Land Reform (Scotland) Act 2003. Amendment 58, in the name of the minister, is grouped with amendments 34, 59, 89, 60, 54, 61, 35 to 37 and 97.

Amendment 58 is a technical amendment that seeks to clarify that the land that might be bought under proposed new part 3A of the Land Reform (Scotland) Act 2003 is to be given the term “eligible land”, and seeks to bring proposed new part 3A of the 2003 act into alignment with section 68 of the Land Reform (Scotland) Act 2003, which relates to the crofting community right to buy.

On amendment 34, in the name of Michael Russell, which seeks to expand the type of land that will be eligible under proposed new part 3A of the 2003 act from land that is “abandoned or neglected” to land that is

“in substantial need of sustainable development”,

I note, first of all, that the bill builds on the 2003 act, which gave communities in crofting areas a compulsory purchase power and those in the rest of Scotland a pre-emptive right to buy. Although the bill will improve those powers, it will also introduce a new compulsory purchase power for communities to buy land that is neglected and abandoned, wherever they might be.

Although that represents another important and progressive step on Scotland’s land reform journey, it is clear from the consultation and the committee’s considerable work on the matter that the proposal is narrower in scope than what the committee was seeking. Amendment 34 would allow a community body to apply to purchase land under the new right-to-buy provisions on the ground that the land is

“in substantial need of sustainable development”,

and ministers would not need to be satisfied that the land is

“wholly or mainly abandoned or neglected”.

I have considered amendment 58 extremely carefully and have listened to the committee’s views and concerns. As I explained when I gave evidence to the committee, any amendment to the bill needs to fall within the competence of the Scottish Parliament, and that includes ensuring that the amendment complies with the European convention on human rights. A right to buy engages the right in ECHR to “peaceful enjoyment of ... possessions”, because the legislation provides for a scheme under which an owner of land can be required to sell that land without their consent. A right to buy will be compatible with ECHR if it is in accordance with law and if it pursues a legitimate aim in a proportionate way.

The phrase “in accordance with law” means that legislation must be clearly stated, foreseeable in its effects and not arbitrary. The test that land must be

“wholly or mainly abandoned or neglected”

provides all owners of land with foreseeability, as it allows those who are actively managing their land in a sustainable manner to continue to do so without concerns that they might face unnecessary processes to purchase their land when there is no intention on their part to sell it.

Having taken further legal advice, I consider that amendment 34 would be outwith the competence of the Scottish Parliament. In allowing a community body to make an application under the new right to buy on the ground that the land is

“in substantial need of sustainable development”,

it does not meet the requirement that legislation be clearly stated, be foreseeable in its effect and not operate in an arbitrary manner. Unlike the requirement that land be neglected or abandoned, a requirement for the land to be

“in substantial need of sustainable development”

is not of itself sufficiently precise to provide an owner of land with sufficient foreseeability and predictability as to when the right to buy may be triggered.

The Scottish Government made it clear in its stage 1 response to the committee that we understand the committee’s concerns and would actively consider whether we could extend the description of land to which the right to buy applies beyond neglected and abandoned land to other problem land. Although the Scottish Government accepts in principle the committee’s desire to broaden the scope, it remains concerned that the proposal and the words that have been chosen are so broad that they would take section 48 outwith the Parliament’s competence. For that reason, the Government cannot support amendment 34.

At the same time, the Government is extremely keen to try to find a solution that broadens out the reference to neglected and abandoned land to add a third test or leg to the proposal and which offers a better and much stronger definition of “eligible land”. I am extremely keen about, and am absolutely committed to, working with the committee prior to stage 3 to craft such a solution. I hope that the committee accepts my offer and will work with the Government to look for a suitable solution. On that basis, I ask Michael Russell not to move amendment 34.

On amendment 59, section 97C(2) of the bill states:

“In determining whether land is eligible, Ministers must have regard to prescribed matters.”

Amendment 59 seeks to avoid confusion by confirming that ministers are not to consider whether each and every holding of land in Scotland is “eligible land”, regardless of whether or not an application has been made, and are to consider only whether land is eligible if and when that land is the subject of an application under proposed new part 3A of the 2003 act.

With regard to amendment 89, proposed new section 97C(2) of the 2003 act will require ministers to make regulations that set out matters that ministers “must have regard to” in determining whether land is wholly or mainly neglected or abandoned for the purposes of the new right to buy neglected and abandoned land. Amendment 89 seeks to provide that, before making such regulations, ministers are required to

“consult such persons”

or bodies

“as they consider appropriate”.

The amendment also requires that the consultation take place within a year and a day of proposed new section 97C(2) coming into force.

I assure the committee that stakeholder engagement is an essential part of the regulation-making process and that stakeholders and appropriate persons will, as has already been the case, be consulted as draft regulations are prepared. I therefore do not consider it necessary to put in the bill a requirement to consult before making draft regulations, or an associated timescale for consultation. Indeed, stakeholders were consulted on the draft regulations setting out matters that ministers must have regard to in determining whether land is eligible land before the draft regulations were sent to the committee in February. With that assurance, I ask Sarah Boyack not to move amendment 89.

On amendments 60 and 61, the definition of eligible land for the purposes of proposed new part 3A of the 2003 act does not include land on which there is a building or other structure that is an individual’s home unless the building or structure falls within such a class or classes as may be prescribed in regulations. Amendment 60 seeks to remove the regulation-making powers to prescribe homes that are to be exceptions to the general exclusion of homes from the definition of “eligible land”.

Last September, the Delegated Powers and Law Reform Committee queried the requirement for that additional power and, after consideration, I agree that the power is not required. The Scottish Government is clear that homes should not be subject to the community right to buy under proposed new part 3A of the 2003 act, and the bill needs to make it clear that an individual’s home, or a building that could be treated as an individual’s home, is not considered to be eligible land.

Amendment 61 seeks to give ministers the power, via regulations, to specify what classes of building or structure are an individual’s home for the purposes of proposed new part 3A of the 2003 act. At the moment, ministers can specify only the classes of building or structure that

“are to be treated as”

an individual’s home; in other words, ministers are allowed to set out only what kinds of buildings are to be “treated” as homes for the purposes of proposed new part 3A of the 2003 act, even if they are not homes. Moreover, the amendment allows ministers to specify in regulations what classes of building or structure are an individual’s home, and that power will be used to avoid confusion about what is meant by the reference to “an individual’s home” for the purposes of the right to buy under proposed new part 3A of the 2003 act.

On amendment 54, land that is classed as bona vacantia or ultimus haeres is currently excluded from the definition of “eligible land” by virtue of section 97C(3)(e) of proposed new part 3A of the 2003 act. Bona vacantia is ownerless property that by law passes to the Crown, and ultimus haeres is land that belonged to a deceased person for whom no spouse, partner or living blood relative can be traced. Amendment 54 seeks to remove bona vacantia and ultimus haeres land from the list of such excluded land and to allow it to be subject to proposed new part 3A of the 2003 act.

Land that is classed as bona vacantia and ultimus haeres is claimed by the Crown through the Queen’s and Lord Treasurer’s Remembrancer, whose purpose is to seek to realise the value of any land that falls to the Crown as bona vacantia or ultimus haeres. The remembrancer seeks to resolve the Crown interest in such land either by a disposal, where there is interest in the land, or a notice of disclaimer in which the remembrancer’s interest in the land is disclaimed—for example where there is no reasonable prospect of a disposal proceeding.

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There are good reasons why bona vacantia and ultimus haeres land is excluded from the definition of eligible land. The remembrancer does not to seek to retain land in order to allow time for an acquisition of the land to be completed under part 3A of the Land Reform (Scotland) Act 2003. It is not in the remembrancer’s interest to do so as no disposal income would be generated and the remembrancer is not resourced to manage such land on an on-going or long-term basis. The remembrancer also seeks to avoid retaining land because of the risks of liabilities arising in relation to it. It follows from the sources of land falling to the Crown as bona vacantia that it can often be in a poor condition, bringing with it the risk of future problems if the Crown interest in it is not resolved.

In circumstances in which land has fallen to the Crown as bona vacantia or ultimus haeres land, the community body has the option of contacting the remembrancer with a view to acquiring the land. There would, in such circumstances, be no need to rely on the proposed new part 3A process.

For those reasons, I ask Sarah Boyack not to move amendment 54.

Amendment 35 seeks to change the title of the online register on which an application form and all documentation relating to an application under proposed new part 3A of the 2003 act will be maintained. The register is maintained by the keeper of the registers of Scotland in a manner and form that is convenient for public inspection. The amendment seeks to amend the title of the register from the “Register of Community Interests in Abandoned or Neglected Land” to the “Register of Community Interests in Eligible Land”.

Proposed new part 3A of the 2003 act concerns communities’ right to buy abandoned or neglected land, and it is important that that be reflected in the title of the register. Rejecting the amendment will ensure that the title of the register accurately reflects its purpose, and that it is appropriate and relevant to the information relating to abandoned and neglected land that it contains. For that reason, I ask Michael Russell not to move amendment 35.

On amendment 36, section 97G(6)(b) of proposed new part 3A of the 2003 act requires a part 3A community body to give reasons why it considers that the land that is subject to its application is

“wholly or mainly abandoned or neglected”.

Michael Russell has lodged amendment 34, which is linked to amendment 36. It seeks to expand the definition of eligible land for the purposes of proposed new part 3A of the 2003 act, so that it includes land that is

“otherwise in substantial need of sustainable development”.

Amendment 36 is a consequential amendment to change the reference to

“wholly or mainly abandoned or neglected”

land in section 97G(6)(b) to a reference to “eligible land”. As I have asked Mr Russell not to move amendment 34, I also ask him not to move amendment 36.

Amendment 37 is also linked to amendment 34. The purpose of amendment 37 is to obtain the landowner’s views on whether they consider that the land is “eligible”, rather than whether the land is

“wholly or mainly abandoned or neglected”.

That would be consequential to amendment 34. Again, as I have asked Mr Russell not to move amendment 34, I also ask him not to move amendment 37, for the reasons that I have set out already.

Amendment 97 is linked to amendment 89. It seeks to ensure that consultation on the draft regulations that are to be made under proposed new section 97C(2) of the 2003 act takes place within a year and a day of the bill’s receiving royal assent.

I assure Sarah Boyack that, as I said, stakeholder engagement is an absolutely essential part of the regulation-making process, and that stakeholders and appropriate persons will be consulted as any draft regulations are prepared. For those reasons, it is not necessary to place in the bill a requirement for consultation before making draft regulations or an associated timescale for consultation. I therefore ask Sarah Boyack not to move amendment 97.

I move amendment 58.

Most people would agree that section 48 is at the heart of the part of the bill that we are considering. I will address my amendments and the minister’s comments together.

The key issue that the bill presents is how we enable and assist—indeed, empower—communities to take possession of land for their use. That is not a judgment on other landlords; it is about treating land as an asset and a resource, the possession and use of which can enrich, enable and empower communities. If we make the process difficult in any way, we run the risk of not achieving the bill’s central objectives.

We know from the experience of the operation of land reform legislation in Scotland that, despite the strong good intentions that lay behind it and the Parliament’s strong support, there have been difficulties for communities in taking possession of land. The process is an incremental one that involves finding out what works and ensuring that that is in legislation so that it may work well.

My problem with leaving the bill as it stands is that the terms “abandoned” and “neglected” as they are presented are in many people’s view—not simply mine—not sufficient to achieve the bill’s objectives. The minister argued cogently that there are difficulties in the wording of amendment 34 and that the phrase

“in ... need of sustainable development”

is too vague. I think that she said that a better and stronger definition is needed.

The minister also said that terms should not be subjective. However, I believe that the term “neglected” as presented in the bill is subjective. It is perfectly possible to look at a piece of land in many different ways. For example, someone might say that a piece of land has been subject to benign neglect. Landowners who do not wish the bill to operate—there are some—will undoubtedly use the law to say that land that appears to be abandoned or neglected is not abandoned or neglected. As the committee heard in evidence, they will also use the legal definitions of abandoned and neglected as a barrier to allowing land to be bought.

The minister referred to a third leg. There needs to be something in addition that buttresses the terms “abandoned” and “neglected” in a way that fulfils the bill’s intention.

My view, which I know is the view of others, is that the term “sustainable development” is clear and has been used before in legal proceedings—for example, it was used in the Pairc judgment. We should insist that the term becomes more common in legal usage. If we add the phrase

“in ... need of sustainable development”,

when we judge whether a piece of land is abandoned or neglected, we will be able to see much more clearly what a community might be entitled to do.

However, if there is a difficulty with the term “sustainable development”, we need to find another term that will allow proposed new part 3A of the 2003 act to operate effectively. As I understand it, the Government has moved from its position at the start of the process to the position that the minister articulated, which is that the Government wishes to work with the committee to address the issue that we all raised in the stage 1 report of needing to find the third leg—the other term that will allow us to move forward.

If the minister confirms in summing up that that is the case and that the Government fully accepts that a third leg is required and will work with the committee, I will be willing, with some reluctance, not to move amendments 34 to 37 at this stage. As a new member of the committee and as a recently returned back bencher, I am mindful that it gets harder to amend bills the longer the process continues and that, when we get to stage 3, it becomes considerably harder. We are proceeding very much on trust, but I very much trust the minister to do what she says.

Sarah Boyack will speak to her amendments, but there was a proposal to remove the terms “abandoned” and “neglected” entirely from the bill. I can understand that but, the more I look at the bill, the more I think that that would create additional confusion, because we would be using the terms in one part of Scotland and not in another part, which would create problems for communities.

Provided that I am assured that the Government absolutely accepts that the terms are not yet fully and properly expressed and that, after consultation with the committee, there will be a stage 3 amendment to strengthen the bill and allow communities to use the bill with the third leg in place, I will be prepared not to move my amendments. I say that reluctantly, because my objectives and those of the committee are exactly the same as the Government’s—we want to do everything possible to empower communities, but the provisions that we are discussing do not yet achieve that.

I look forward to hearing the minister’s wind-up speech. I agree with Mike Russell that this debate is key to the whole bill. I will speak about amendment 89, which is minor, before moving on to amendment 54 and making general comments.

The regulations that follow on from the bill will be crucial. The debates that we have had throughout the process have been about what is in the bill and the regulations that will follow from that. The combination of those will be the test of whether the bill makes it possible for communities to exercise the rights that the Government intends for them. Part of the issue is the commitment to ensuring that people are properly consulted, which is an easy thing to agree about, but a commitment must also be made on timescales.

Proposed new section 97C(2) of the 2003 act requires ministers to make regulations setting out the factors that they must have regard to in deciding whether land is, in their opinion, eligible under part 3. Amendment 89, along with consequential amendment 97, would require ministers to consult on the regulations within a year of the bill receiving royal assent. I have suggested a timescale because we need to get on with the bill. Once we have passed the detail in the bill, it is important that the next stage is followed through swiftly because, until that happens, communities will feel unsure and there will be uncertainty.

Today’s debate about eligible land is a key aspect of our consideration of the bill. The debates that will follow about how the eligibility of land will be judged, and the minister setting out at more length how she sees that happening in practice, will be crucial. For example, we are only now seeing the public duty from the Climate Change (Scotland) Act 2009 coming into effect.

The commitment that I am looking for is not just from the minister but from the whole Government system. Having been a minister, I echo Mike Russell’s point that being a minister is about getting everybody and all the resources aligned, which is why I am asking for a commitment not just from the minister but from the whole system.

Amendment 54 is about the exemption of certain types of Crown land. New section 97C(3) of the 2003 act makes provision for land that is exempted from part 3A, and amendment 54 would remove paragraph (e), which exempts

“land which is owned or occupied by the Crown by virtue of its having vested as bona vacantia in the Crown, or its having fallen to the Crown as ultimus haeres”.

I have listened to the minister and I will probably want to go away and read the Official Report. It was not clear why some categories of Crown land are exempted in proposed new part 3A of the 2003 act when other Crown land is included by virtue of section 100(2) of that act and there is not a similar exemption from the definition of eligible crofting land in part 3. I have listened to what the minister said and I want to think about her reflection on why the exemption is at all necessary; she gave reasons, but I want to think about them further.

I have some comments on amendments 34 and 35, which Mike Russell lodged. I have problems with the bill referring only to “wholly ... abandoned or neglected” land. I have problems with what is meant according to the dictionary definition. The last time she came to speak to us, the minister said that she is using the normal understanding of the words and that we should look them up in a dictionary.

I have concerns about the situation in urban and rural settings. The Government’s intentions that led to the bill might be frustrated by the interpretation of neglected and abandoned land if that is not properly defined. I have concerns about how the minister suggested that it would be defined.

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The 2003 act was all about furthering sustainable development; the bill is about removing barriers to sustainable development. The policy memorandum to the bill is absolutely clear that

“The Scottish Government considers that there is a general public interest in removing barriers to sustainable development of land by enabling community bodies to purchase neglected and abandoned land.”

I agree with that ambition, but we have to make that a real outcome of the bill. That is why it is important to include the term “sustainable development”. It is a legally defined and accepted term, as Mike Russell said. It appears in environment legislation and planning legislation and it is internationally accepted. Including that is important because the land does not need to be neglected or abandoned. The idea of benign neglect is interesting. The issue is all about perception.

It is questionable, for example, whether the Eigg buyout would have met the requirements in the bill. I also have in mind the Calton test from Glasgow. I visited the east end of Glasgow, where there is land that has been lying for years with no proposals to do anything with it, which causes blight to the community. For how long does land have to be in a neglected or abandoned state before it counts under the minister’s definition in the bill?

In an urban context, we can take for example a piece of land for which a planning proposal—which might be completely against the local plan policy—is made regularly but has no chance of success. Would that land be accepted as being neglected or abandoned, given that, even though the owner has some ambition for it, there is no prospect of that being given planning permission?

The point extends to buildings. There is the Odeon test from the Edinburgh south side, where that building has been vacant for a decade. The owners have ambitions for the site, but there is no prospect of their being given planning permission.

As the bill stands, it is not clear to me how communities will be able to exercise the right to buy. It is good to have the minister’s commitment, which I very much welcome, that she is prepared to look at the issue further. Everybody round the table agrees with the objectives in the policy memorandum; the issue is about making sure that they are delivered.

The minister referred to the ECHR requirements. It is really important that this is tested properly. The test that she mentioned was that the legislation is clear and is not arbitrary—it is about foreseeability and predictability. If we look at planning legislation or the secondary legislation on antisocial behaviour that we have passed, we can see that legislation means that landowners do not have unlimited or unrestricted rights to enjoy their property—their right to enjoy their property is already limited by legislation. This needs to be pinned down and teased out.

I am very supportive of the commitment that the minister has given to look at this further. The challenge is that, once we have got through stage 2, the clock really starts ticking. The opportunity that we will have to debate the subject over the next two or three weeks or over the recess is important. I ask the minister to say how she will take matters forward. She has given a good commitment. We all agree that this is the key issue in the bill. It is about not just environmental sustainability but the social and economic impacts of neglected and abandoned land. We are frustrated that the terms as they appear in the bill will take us back rather than move us forward, in both urban and rural contexts.

I have spoken at more length than I normally would, convener, but this is such an important issue for the bill that I was keen to state our position and draw out how the minister will deliver her good commitment to making sure that we can make this the bill that we all want it to be during a difficult stage that is usually just a rush towards stage 3, because that would help us all.

I will be brief. I absolutely agree with Mike Russell and Sarah Boyack that section 48 is the core of the bill. It is also important to put it on the record that it is the only area of the bill on which there was not unanimous agreement in the committee’s stage 1 report.

When the minister gave evidence, I asked her to confirm what the policy memorandum states—that the powers under section 48 would be used only as a last resort—and, if I recall correctly, she confirmed that that is the case. I can quite happily support that in principle.

What concerns me about Mike Russell’s amendment 34—although I understand that he is likely not to move it at this stage—is that I do not believe that it provides the clarity that the bill requires. Good law is clear, unambiguous and properly defined, and I am concerned that his amendment would take us into areas that require interpretation and definition. A definition of sustainable development is a bit like beauty—sometimes it is in the eye of the beholder and very much open to interpretation. That makes for bad law.

I am happy to welcome the minister’s commitment to go away and look at the matter and try to provide some clarity, because section 48 of the bill really needs it. However, I hope that the Government will stick to its intention that the powers under proposed new part 3A of the 2003 act will be used only as a last resort.

I will make a brief comment on Sarah Boyack’s amendment 54, on the QLTR. I listened carefully to what the minister said about that. I have a situation in my constituency at the moment, of which the minister will be well aware, and it seems to me that the fact that the land has now fallen into not the ownership but the caretakership—if there is such a word—of the QLTR is helping the process of community purchase of the asset. The process would have been much longer and more drawn out if that had not been the case. I know that Sarah Boyack said that she would go away and think about the issue, but that is just one example of where the situation helps rather than hinders the process of community empowerment. I will leave it at that.

Good morning, minister. I seek clarification in relation to amendment 60. Will there be a definition, if not in the bill then in regulations, of the amount of land that can surround a home? That might need clarification.

I support Sarah Boyack’s concluding comments, in which she sought an understanding from the minister as to how in practice the minister and the committee will be able to work together to find an appropriate third leg. It would be useful to understand that. Given the consideration that the minister has already given the issue, and as she is aware of the committee’s views, realistically, how optimistic is she that we can between us come up with a third leg that ensures that the bill works as we all want it to work in practice?

I will make a couple of comments. First, on a point that was raised about making land available, this is a process and not an event, as we know. I understand that the forthcoming land reform bill might look at aspects of compulsory purchase. Will you confirm that, minister? That might well be a short cut in some cases towards achieving some of the ends that we are interested in.

Secondly, you suggested that Michael Russell’s amendment 34 might be ultra vires—in other words, that it is outwith the Scottish Parliament’s competence. Will you explain that a little further, please? It is important for members to grasp why, if the amendment was pressed, it might be illegal. We need to know something of that.

I will try to answer the points that committee members have raised and I will start with amendment 34. I recognise the case that the committee has put forward, and we are continuing to explore every avenue and every option within the confines of the law.

I give members my absolute commitment that I will sit down with the committee and my officials ahead of stage 3. I have asked my private office to have that discussion with me so that, if the committee decides to go down that route, we can get a date in the diary for us all to sit down, work through the bill and try to find a solution that meets the policy objectives that we all want to achieve and delivers them in practice. I hope that that will enable us to lodge appropriate amendments at stage 3.

I am absolutely committed to working with the committee and with our stakeholders to achieve greater clarity. We can find better ways of meeting the objectives that we are pursuing in the bill, and I am committed to doing that by sitting down with the committee together with my officials to see what solutions we can find.

On Graeme Dey’s point, I am optimistic that we can find some agreement. It might not be easy, because the issue is complex, but you have my commitment that I am keen to ensure that committee members can sit down and discuss the bill with me and my officials.

On amendments 89 and 97, I reassure Sarah Boyack that our stakeholders will be engaged as an essential part of the process. We will ensure that stakeholders are consulted on the draft regulations, and I commit to engaging with our stakeholders at the earliest possible opportunity.

On amendment 54, the QLTR is exempted because the process is such that the QLTR does not hold on to land for any length of time; it seeks to release land as quickly as possible. If amendment 54 were agreed to, it would delay that process. Communities can approach the QLTR to see whether they can get land, and I agree with the points that Mr Fergusson made.

Claudia Beamish made points about amendment 60. We can certainly consider setting out an amount of land in regulations, along with considering other regulations.

On the convener’s point about amendment 34, I confirm that the proposal would be outwith the Parliament’s competence, as it would not be in accordance with the law. That is because the amendment is not clearly enough stated for its effects to be foreseeable. The landowner could not have sufficient foreseeability as to when the right to buy would apply.

Amendment 58 agreed to.

Amendment 34, in the name of Michael Russell, has already been debated with amendment 58.

On the basis of the minister’s reassurances, I will not move amendment 34.

Amendment 34 not moved.

Amendment 59 moved—[Aileen McLeod]—and agreed to.

Amendment 89, in the name of Sarah Boyack, has already been debated with amendment 58.

I would like to move amendment 89, because it is not just about consultation with interested parties; for me, it is also a timescale issue. I would hope that, if a consultation on regulations were held within the year, we would have both the same minister and the same bill team. The expertise that we have at this point needs to be followed through, and the commitments need to be followed through to the regulations. I am keen to push my amendment, so that the consultation can be done and the regulations can be introduced within the year.

Amendment 89 moved—[Sarah Boyack].

The question is, that amendment 89 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Hume, Jim (South Scotland) (LD)

Against

Dey, Graeme (Angus South) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 89 disagreed to.

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Amendment 60 moved—[Aileen McLeod]—and agreed to.

Amendment 54 not moved.

Amendment 61 moved—[Aileen McLeod]—and agreed to.

We move to group 2, which is on ways in which proposed new part 3A community bodies may be constituted et cetera. Amendment 62, in the name of the minister, is grouped with amendments 63 to 72 and 88.

During consultation on the bill, respondents have been clear about the need for ministers to offer a wider range of entities that a community body could use. Stakeholders in particular highlighted Scottish charitable incorporated organisations, or SCIOs, and community benefit companies, or bencoms, as being suitable.

At the moment, the right to register an interest in property and the community right to buy in proposed new part 3A of the Land Reform (Scotland) Act 2003 can be exercised only by “community bodies”. The bill as introduced sets out the types of legal entitles that members of the community may form to be a “community body”. The amendments in this group will add SCIOs and bencoms to the types of legal body that are eligible to be part 3A community bodies under proposed new part 3A of the 2003 act, and will align that part with parts 2 and 3 of the 2003 act.

Amendments 62 and 65 specifically include community benefit societies and SCIOs as eligible legal bodies for the purposes of proposed new part 3A of the 2003 act. Their effect is that community bodies will be able to take the form of a company limited by guarantee, a community benefit society or a SCIO when they form their part 3A community body. That will provide communities with more flexibility to select the type of body that best meets their requirements.

The amendments will mean that the registered rules of a community benefit society and the constitution of a Scottish charitable incorporated organisation must satisfy certain requirements in order for a body to be a community body for the purposes of the community right to buy. Those requirements are similar to those that are currently in place for companies limited by guarantee. The amendments will have a similar effect to the amendments that the committee agreed to last week in relation to parts 2 and 3 of the 2003 act.

Amendment 65 seeks to insert new subsection (1B) into proposed new section 97D of the 2003 act. Paragraph (g) of that new subsection includes a provision that,

“on the request of any person for a copy of the minutes of a meeting of the SCIO, the SCIO must, if the request is reasonable, give the person within 28 days of the request a copy of those minutes”.

The right would be open to a wide range of interested parties. Among the more obvious ones would be the owner of the land in question, members of the community or even other community bodies that were looking for examples of good practice.

As far as what would be considered a reasonable request is concerned, I would expect community bodies making such a decision to base it on common sense. If the request were for the minutes of an annual general meeting, for example, that would be perfectly reasonable, but if it were for the minutes of a meeting that was held, say, 15 years ago or for the minutes of all meetings over the previous 10 years, that would be another matter entirely. Public bodies must make similar considerations in relation to freedom of information requests, although community bodies are not subject to the freedom of information legislation.

Amendment 65 also provides some measure of protection for the community body against unreasonable requests by including a provision that, where a request is made, the community body

“may withhold information that is contained in the minutes”.

Information that could be withheld could be personal information or anything—either personal or commercial—that was provided in confidence. Again, we would expect community bodies to base their decisions on factors that are similar in nature to those that are set out in freedom of information legislation, at least in terms of what would be reasonable to withhold.

Amendment 65 also includes a provision that

“any surplus funds or assets of the society are to be applied for the benefit of the community.”

It would be for the community body to decide how to use those surplus funds; the provision is simply there to ensure that any such surplus funds are, in keeping with the bill’s policy aims, used solely for the benefit of the community.

I turn to amendments 63 and 64. At present, proposed new section 97D(1) of the 2003 act sets out that a part 3A community body must be a company limited by guarantee that meets certain requirements. Amendment 63 seeks to amend that list of requirements. The bill as introduced states that the articles of association of a community body must provide that the body has at least 20 members, and amendment 63 seeks to reduce the minimum number of members to 10. The intention is to address the difficulties, as highlighted by the committee, that some smaller or remote communities may experience in finding enough members to form the community body.

Amendment 64 also seeks to amend the list of requirements of the articles of association of a community body. Currently, the requirement is that the articles must provide that the majority of members of a community body must be members of the community. The amendment seeks to change that so that the articles must provide that three quarters of the members of the community body are members of the community. That is to ensure that, even in relation to community bodies in which the number of members is small, the interests of the local community are protected. I note that, last week, the committee agreed to similar amendments in relation to community bodies under part 2 of the 2003 act, and to crofting community bodies under part 3.

Amendment 66 will allow ministers to disapply the requirement for a company limited by guarantee, and a community benefit society or Scottish charitable incorporated organisation, as inserted by the amendments in this group, to have no fewer than 10 members if ministers think that that is in the public interest.

Amendment 67 will renumber a subsection following the insertion of the additional types of legal body. Amendment 68 will insert a power to enable ministers to amend at a future date the subsections listing the types of legal entities that communities can use to form part 3A community bodies. The amendment will enable ministers to add to the types of legal entities that communities may use to form community bodies under proposed new part 3A of the 2003 act.

Amendment 69 is a consequential amendment that specifies how a community benefit society and Scottish charitable incorporated organisation, in addition to a company limited by guarantee, will define their community by reference to

“a postcode unit or postcode units or a prescribed type of area”.

Amendment 70 is a consequential amendment following the insertion of community benefit societies and Scottish charitable incorporated organisations as types of body that communities can use to form a community body. It will add definitions of “community benefit society”, “registered rules” and “Scottish charitable incorporated organisation” to the bill.

I turn to amendment 71. The bill as introduced does not permit a part 3A community body to modify its memorandum or articles of association without ministers’ consent in writing, as long as the land or any part of it remains in its ownership. Amendment 71 will apply that prohibition to a Scottish charitable incorporated organisation’s constitution and a community benefit society’s registered rules, following the inclusion of those two types of legal body as eligible bodies for the purposes of proposed new part 3A.

Amendment 72 is a technical change that will add the omitted word “body” after “community” in new section 97E(3) of the 2003 act, as inserted by section 48 of the bill. Amendment 88 is linked to amendment 68 and will subject the ministerial powers inserted by amendment 68 to the affirmative procedure.

I move amendment 62.

I support all the amendments in the group. It is welcome that SCIOs and bencoms are to be included in the bill, and it is right that the eligibility requirements are very carefully defined so that everyone knows where they are. The extension of ministerial discretion over numbers provides a useful flexibility. It is important that, while land bought under proposed new part 3A of the 2003 act remains in the ownership of a community body, that community body cannot change its rules without ministerial permission. That will give reassurance to communities and the wider public. The broadening of the range of bodies, with the clarification on membership numbers and a range of other issues, including reasonable transparency, is important.

I thank Claudia Beamish for her support. The key purpose of this group of amendments is to ensure that we protect our smaller communities. We want to ensure that smaller communities are not disadvantaged if they are unable to identify 20 members. By proposing the decrease in the number of members, we ensure that the interests of such communities are protected.

Amendment 62 agreed to.

Amendments 63 to 72 moved—[Aileen McLeod]—and agreed to.

Amendments 35 and 36 not moved.

The next group is on applications for consent to buy under proposed new part 3A of the 2003 act: information to be included in application and criteria for consent. Amendment 73 is grouped with amendments 74, 75, 45, 90 and 76.

The mapping requirements that are proposed in part 3A are similar to the mapping requirements in part 3 of the Land Reform (Scotland) Act 2003 on the crofting community right to buy. I propose the group of amendments to replace the proposed mapping requirements in part 3A, taking account of stakeholder feedback in relation to the mapping requirements in part 3 of the 2003 act, and to incorporate the proposed amendments in part 3A of the 2003 act.

Currently, the application form that ministers must prescribe requires the community body to identify all rights and interests in the subjects of the application. Those rights and interests are

“sewers, pipes, lines, watercourses or other conduits and fences, dykes, ditches or other boundaries in or on the land ... known to the applicant body or the existence of which it is, on reasonably diligent inquiry, capable of ascertaining”.

Those requirements are widely recognised as likely to be particularly onerous and complex for a community body.

We propose the amendments because we recognise that the current mapping requirements are particularly complex. Ministers will still set out the required information for the application in regulations, but there will no longer be a requirement to include those interests that I mentioned as being considered particularly difficult to identify.

The purpose of amendment 73 is to clarify that the part 3A community body is required to include in the application all rights and interests known to the part 3A community body.

Amendment 74 removes the provision requiring a part 3A community body to specify

“all sewers, pipes, lines, watercourses etc.”

and simplifies the mapping requirements to a more reasonable level, in the same way as it does for part 3.

11:00  

Amendment 75 removes another particularly onerous provision, which requires a part 3A community body to detail how its

“proposed use, development and management of the land”

would affect any of the sewers, pipes, lines, watercourses, fences, boundaries and so on.

Section 97H sets out the matters about which ministers have to be satisfied before they can grant consent to an application. Section 97H(c) provides that, in order to approve an application, ministers must be satisfied that, if the owner of the land were to remain as its owner, that ownership would be inconsistent with

“furthering the achievement of sustainable development in relation to the land”.

The purpose of amendment 45 is to introduce a different standard of test of which ministers must be satisfied in order to approve the application. The test that is proposed in the amendment is that ministers must refuse consent unless they are satisfied that it is unlikely that the owner’s continuing ownership would further the achievement of sustainable development in relation to the land.

Section 97G(6) states that the part 3A community body must demonstrate in its application that its proposals are

“compatible with furthering the achievement of sustainable development”.

When considering section 97H(c), ministers must satisfy themselves that, if the land were to remain with its current owner,

“that ownership would be inconsistent with furthering the achievement of sustainable development in relation to the land”.

That is not something that the part 3A community body is required to demonstrate. Ministers will come to a decision based on all the facts and circumstances.

Of course, the part 3A community body has the option to demonstrate in its application that it is in the public interest for the application to be approved because the current ownership would not be consistent with the sustainable development of the land, but that is not a requirement. Equally, it would be open to the landowner to make representations to the effect that their continued ownership would be consistent with the sustainable development of the land.

In essence, the purpose of section 97H(c) is to ensure that the application is not approved in cases where the current owner has demonstrated that his continued ownership of the land would further the achievement of sustainable development of the land, because if that is the case, the policy objectives of the bill will already have been met.

Amendment 45 seeks to achieve a similar goal. Having listened very carefully to the view of the committee, I am very happy to support the amendment. In deciding whether to consent to the exercise of the right to buy, ministers will have to act reasonably and that will include taking account of all relevant information, including any plans that the landowner has for the land. The change that is made by amendment 45 will not affect that.

The community body is required to accurately identify the current owner of the land in a part 3A application in order for the application to be valid. If the application does not accurately identify the owner, ministers are bound to reject it. Amendment 90 proposes the removal of the requirement for the community body to accurately identify the current owner. The community body would instead be required to have exercised all reasonable diligence in seeking to identify the owner, although the community body is not able to provide an accurate identification of the landowner in the application.

The effect of amendment 90, in circumstances where a part 3A application had been approved without an owner being identified, would be to require title to land to be transferred to a community body even though the current landowner is unknown. First, that amendment could deny landowners the opportunity to comment on the application to buy their land and thus make it difficult for ministers to come to a fair decision about the application.

Further, in circumstances where a community body has tried and failed to identify the owner, the community body has the option of contacting the Queen’s and Lord Treasurer’s Remembrancer to see whether the land has been deemed bona vacantia. If so, the body could take steps to acquire the land when the land is disposed of by the QLTR. For those reasons, I ask Sarah Boyack not to move amendment 90.

One of the current criteria for approval of an application under part 3A is that the application accurately identifies creditors in a standard security over the land that is the subject of the application. Amendment 76 seeks to restrict that so that only creditors in a standard security with a right to sell the land must be identified, and not all creditors in a standard security.

Amendment 76 seeks to make the application process less onerous on the community body, whilst ensuring that the appropriate creditors are identified. If the amendment is approved, there will be no requirement for the community body to identify a creditor in a standard security who does not have a right to sell the land that is the subject of the application.

I move amendment 73.

I will not say very much because the minister has said that she is happy to support amendment 45. I am pleased to hear that. The test that will be put in place because of amendment 45 will be much more reasonable and communities will be able to comply with it. In contrast, the previous test would have been very difficult, if not impossible.

I welcome amendments 73, 74 and 75 because they will help to remove hurdles to community purchase. In some circumstances, it can be a huge challenge to identify the detail of sewers and pipes—that is a level of detail that is not required in relation to pursuing the option of community ownership.

If I understood correctly, the minister now accepts Dave Thompson’s amendment 45. Amendment 45 proposes a more proportionate test of ownership, rather than requiring bodies to prove that

“if the owner of the land were to remain as its owner, that ownership would be inconsistent with furthering the achievement of sustainable development in relation to the land”.

Amendment 45 is an improvement to the bill and I welcome the minister’s acceptance of it.

I am disappointed that the minister does not feel able to support amendment 90, which seeks to ensure that where a community group has exercised all reasonable diligence in seeking to identify the owner, that is sufficient. The new section 97H of the 2003 act sets out that

“Ministers must not consent to an application”

for a part 3 community right to buy, unless they are satisfied about the matters that are listed in the section. Paragraph (d) provides that ministers must refuse consent unless they are satisfied

“that the owner of the land is accurately identified in the application”.

Community Land Scotland raised concerns that that sets a high bar for part 3 community bodies to meet, given the often complex process of determining ownership. Amendment 90 would give the minister flexibility to consent to an application where the community body has exercised all reasonable diligence in seeking to identify the landowner, but has not been able to do so. What if there is a complex trail of ownership and, ultimately, the land is owned overseas and the community body cannot track that?

There is a similar provision in section 73(5)(b) of the 2003 act, in relation to applications by crofting community bodies for consent to buy croft land. That section requires the inclusion of information regarding all

“rights and interests in the subjects of the application ... known to the applicant body or the existence of which it is, on reasonably diligent inquiry, capable of ascertaining”.

I want to tease out from the minister whether she objects to the principle or the detail of my amendment. I could understand it if the land in question was regarded as bona vacantia; in that respect, I go back to my earlier amendment 54, which I did not move. However, the real question is how much time and resource communities are expected to put into tracking down owners. There is a lack of clarity, and my amendment seeks to ensure that a community will not be frustrated in bringing forward its proposals merely because the ownership of the land is hidden or the trail of ownership is too complex for it to understand. We are not talking about bona vacantia; the land in question is owned, but a community is unable to track down the owner. That frustrates the bill’s ambition for communities to be able to exercise their right to buy in line with the bill’s aims.

I am keen for the Government to give amendment 90 proper consideration, because I think that there is a real reason why it should be accepted.

I return to the issue of clarity that I highlighted earlier. What disturbs me about Dave Thompson’s amendment 45—and the reason why I am afraid I cannot support it—is the inclusion of the word “unlikely”, which I think takes us into the realms of cloudiness. It lacks the clarity that I believe we need. I have some difficulties with this part of the bill anyway, but I have great difficulties with the lack of clarity in the amendment. For a start, I do not know who would be called on or asked to determine whether

“sustainable development ... would be ... furthered”

by the ownership of land. Someone has to sit there and make those judgments; I assume that it would be Scottish ministers, but I am afraid that the lack of clarity that has been highlighted means that I cannot support amendment 45.

I tried to point out in my remarks that, if agreed to, amendment 90 would require title to land to be transferred when the land was purchased, even if the current landowner were unknown. It would also deny landowners the opportunity to make representations on the application. An owner has to be identified for land to be purchased; it cannot be bought from an unknown entity. The Government is committed to completing the land register to assist us in this task, and as part of the land reform legislation we consulted on ways of improving transparency of ownership. For those reasons, I ask Sarah Boyack not to move amendment 90.

Amendment 73 agreed to.

Amendments 74 and 75 moved—[Aileen McLeod]—and agreed to.

Amendment 37 not moved.

Amendment 45 moved—[Dave Thompson].

The question is, that amendment 45 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Dey, Graeme (Angus South) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)

Against

Fergusson, Alex (Galloway and West Dumfries) (Con)
Hume, Jim (South Scotland) (LD)

The result of the division is: For 7, Against 2, Abstentions 0.

Amendment 45 agreed to.

Does Sarah Boyack wish to move amendment 90?

I will move the amendment because we could be waiting years before we have clarity on land ownership.

Amendment 90 moved—[Sarah Boyack].

11:15  

The question is, that amendment 90 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)

Against

Dey, Graeme (Angus South) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Hume, Jim (South Scotland) (LD)
MacDonald, Angus (Falkirk East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 90 disagreed to.

Amendment 76 moved—[Aileen McLeod]—and agreed to.

The next group is on the reimbursement of costs of holding a ballot under part 3A of the 2003 act. Amendment 77 is grouped with amendment 78.

As introduced, the bill requires the part 3A community body to meet the expense of conducting a ballot. Amendment 78 introduces subsections (6A) and (6B) into new section 97J. They give ministers regulation-making powers, which will allow a part 3A community body, in particular prescribed circumstances, to apply to ministers to seek reimbursement of the cost of conducting the ballot. For example, one such circumstance could be if community support were demonstrated as a result of the ballot. We would develop those ideas further in discussions with stakeholders, should the bill be passed.

Amendment 77 provides that the current obligation under proposed new section 97J(6), that the part 3A community body is to meet the expenses of a ballot, is subject to the new regulation-making power inserted by amendment 78.

Amendments 77 and 78 bring part 3A into alignment with part 3 of the 2003 act, on the crofting community right to buy.

I move amendment 77.

The minister has said that there might be circumstances in which Scottish ministers would reimburse communities for the cost of conducting a ballot. She said today that that would be the case if there had already been an indication of support in the community and the ballot merely confirmed that support. I would be interested to hear where the minister thinks that it would not be appropriate to provide financial support for a ballot. In what circumstances can she conceive of that happening?

Where crofting communities already have buy-in to a proposal and have considered the community support to satisfy the legislation, I would expect the community to be given support automatically. I cannot see why there is a set of criteria given that we do not really know why it would not be appropriate and why a community might not automatically get the cost of the ballot reimbursed. It would be much clearer to allow communities to have the finance to conduct a ballot automatically. I still do not see why the minister would not do that for them.

I agree with Sarah Boyack’s issue, but for an entirely different reason. I find it very difficult to see which way to go on the matter without knowing the circumstances under which the reimbursement would apply. There could be a huge cost implication. Without knowing more of the details, I find it difficult to know where to go. It would be useful if the minister were to give us further explanation in her summing up.

We discussed the issue last week and there was some explanation then. I look forward to the minister clarifying it again for members.

I can say that the ballot in part 3A would be held before the application is received by the Scottish Government, so at that point we would not know anything about the community. An example of the circumstances that I was referring to might be that there is a protest group that wishes to delay a particular sale or development and all that it would have to do would be to say that it was holding a ballot, which the Scottish Government would then have to run and pay for, even if the protest group knew that it did not have the support of the majority of the community.

Amendment 77 agreed to.

Amendment 78 moved—[Aileen McLeod]—and agreed to.

The next group is on the effect of ministers’ decisions on the right to buy under part 3A of the 2003 act. Amendment 79 is grouped with amendments 80 to 85.

Amendments 79 to 85 address the Delegated Powers and Law Reform Committee’s concerns regarding the wording of the provisions in proposed new section 97N, and seek to clarify the nature of the regulation-making powers that are set out in that section. The revised wording makes it clear that the powers that will be given to ministers by section 97N are to make provision in regulations for or in connection with prohibiting, during such periods as may be specified in the regulations, specified persons from transferring or dealing with land that is the subject of a part 3A application. The regulations may specify transfers and dealings that are not prohibited; require or enable specified persons to register notices in the register of community rights in abandoned or neglected land; and, in specified circumstances, require information to be incorporated into deeds relating to the land.

Ministers may also make regulations that provide for the suspension, for a period to be specified in the regulations, of certain rights in or over land that is the subject of a part 3A application. Those regulations may specify rights to which the regulations do not apply and rights to which the regulations do not apply in certain specified circumstances.

I move amendment 79.

I will be brief. I support the group of amendments, which I regard as tidying up the language of the provision. Clarity is always key.

I thank Claudia Beamish for supporting the amendments.

Amendment 79 agreed to.

Amendments 80 to 85 moved—[Aileen McLeod]—and agreed to.

11:23 Meeting suspended.  

11:34 On resuming—  

The next group of amendments is on the valuation of land under part 3A of the 2003 act: representations about appointment of valuer and valuation of land, and reasons for Lands Tribunal decisions. Amendment 91 is grouped with amendments 86 and 87.

I am proposing amendment 91 to ensure that there is another way to deal with the issue of valuation if either of the parties is unhappy about the valuer appointed. It is quite an important issue to tease out.

New section 97S of the 2003 act sets out the procedure for a valuation of the land in respect of which a part 3A community body is exercising its right to buy. Section 97S(1) requires ministers to appoint a valuer to assess the value of that land within seven days of consenting to an application. It is not unreasonable to imagine a scenario in which one of the parties to a part 3A community right to buy might have an objection to the appropriateness of the valuer selected by ministers.

My amendment 91 would require ministers to notify the landowner and the community body of the appointment and give them the opportunity to raise any concerns. It would then be at ministers’ discretion whether to appoint a different valuer, based on the strength and nature of the objection, or to press ahead with the original valuer, providing an explanation to the objector as to why that was being done.

Amendment 91 would give more legitimacy and transparency and allow us to achieve a better outcome.

I move amendment 91.

Amendment 91 would require ministers, within seven days of the appointment of a valuer, to invite written representations from the landowner and part 3A community body on the appointment of the valuer. The landowner and part 3A community body would then have seven days in which to respond. Ministers would have to have regard to written representations received and, within three days of the expiry of the deadline for written representations, appoint another suitably qualified valuer or confirm the appointment of the valuer and provide a written explanation of that decision to any person who submitted written representations objecting to the appointment of the valuer. That whole process could take up to 17 days, eating into the eight-week timetable for the completion of the valuation process, unless that timescale was also amended.

New section 97S(1) already requires ministers to appoint a valuer whom ministers consider

“to be suitably qualified, independent and to have knowledge and experience of valuing land of a kind which is similar to the land being bought”.

Subsection (11) requires the valuation to be carried out within eight weeks of the appointment of the valuer, or such other period as ministers agree to, following an application by the valuer.

If amendment 91 were agreed to, a further amendment would be needed to ensure that the eight-week period for carrying out the valuation began only when the new valuer’s appointment was made or the original valuer’s appointment was confirmed. Amendment 91 would extend the valuation period and therefore delay the application process.

The bill as introduced requires the valuer to invite the owner of the land and the community body to make representations in writing about the value of the land. If Government amendment 86 is agreed to, the landowner and part 3A community body will have the opportunity to make counter-representations on the value of the land. The landowner will be invited to make counter-representations on the community body’s representations and vice-versa. Seeking counter-representations will allow the valuer to take all circumstances into consideration.

The valuer will take account of all representations and counter-representations received when assessing the value of the land in order to reach a fair assessment. Should the landowner or the part 3A community body dispute the valuation, the parties already have the option of appealing to the Lands Tribunal in relation to the valuation of the land.

I urge Sarah Boyack to withdraw amendment 91, on the basis that there are currently enough safeguards in place to ensure a fair valuation process.

The current provisions of proposed new part 3A of the Land Reform (Scotland) Act 2003 require the valuer to invite the owner of the land, the tenant or the person who is entitled to the sporting interests—whichever it may be—and the community body to make representations in writing about the value of the land.

In the interests of completeness, I lodged amendment 86, which would allow for counter-representations to be made on comments that were made relating to the valuation of the land, and to allow the valuer adequate time to take those into account. The amendment seeks to allow counter-representations to be made by the owner of the land, the tenant or the person who is entitled to sporting interests, in response to representations made by the part 3A community body.

Amendment 86 also seeks to allow counter-representations to be made by the part 3A community body in response to representations made by the owner of the land, the tenant, or the person who is entitled to sporting interests. The amendment’s effect is to ensure that the valuer takes account of all parties’ views on the application and has time to do so.

The Government amendments seek to assist the valuer in reaching a fair assessment of the value of the land or interest that is the subject of the part 3A community body’s right-to-buy application.

Amendment 86 aligns the provisions of proposed new part 3A with the provisions in parts 2 and 3 of the 2003 act, as agreed by the committee last week, and I ask the committee to support it.

I move on to amendment 87. New section 97W(5) of the 2003 act, which will be inserted by section 48 of the bill, states:

“The Lands Tribunal must give reasons for its decision on an appeal under this section.”

However, currently, there is no time limit on when a written decision should be provided. With amendment 87, I propose to insert a time limit of eight weeks after the hearing of the appeal for the Lands Tribunal to issue written reasons for its decisions. That limit is proposed in order to provide the Lands Tribunal with flexibility when scheduling its cases.

In addition to inserting an eight-week time limit, the amendment also provides an option for the Lands Tribunal, if it considers that it is not reasonable to issue a written statement of reasons within the eight-week time limit, to notify the parties to the appeal of a new date by which it will issue its written reasons.

I propose amendment 87 in order to provide flexibility for the Lands Tribunal when scheduling its workload while at the same time ensuring that the parties to the appeal have a degree of certainty as to when they will receive the written statement of reasons. The amendment also provides that the validity of anything done under part 3A is not affected by failure by the Lands Tribunal to comply with these provisions.

Amendment 87 aligns proposed new part 3A of the 2003 act with the changes to parts 2 and 3 of the 2003 act that were agreed to by the committee last week, and I ask the committee to support it.

I have listened carefully to what the minister said. I can see that amendment 86 would provide more clarity and new opportunities for the parties to reply to each other’s representations. That is a very good thing.

However, the minister did not address what would happen when either party is fundamentally not happy about the valuer, for whatever reason. I still think that this is an important new opportunity to address that situation, and the minister did not say why addressing it would not be a good thing. I would like the minister to come back between now and the stage 3 debate to clarify why amendment 91 is not an intelligent addition to the bill, as a safeguard. I will not press amendment 91 at this point.

Amendment 91, by agreement, withdrawn.

Amendments 86 and 87 moved—[Aileen McLeod]—and agreed to.

The next group is on financial support for part 3A community bodies. Amendment 92, in the name of Sarah Boyack, is the only amendment in the group. Sarah Boyack will speak first; other members can listen carefully to see whether they wish to join in.

11:45  

At present, community bodies utilising the provisions in part 2 of the 2003 act are able to apply to the Scottish land fund, which provides practical and funding support. Funding comes from the Scottish Government and is delivered in partnership by the Big Lottery Fund and Highlands and Islands Enterprise.

My purpose in lodging amendment 92 is to ask whether that support will be replicated for part 3A community bodies and to have a discussion about that. The amendment places a requirement on the Scottish Government to adjust the application criteria for the land fund to include part 3A community bodies.

I am interested to hear the minister’s thoughts on how the operation of the land fund will be modified in light of the bill, because the bill expands the areas where communities will be able to use the community right to buy, and a key lesson from the Land Reform (Scotland) Act 2003 was the importance of supporting communities financially to enable them to buy land. If we are expanding the scope of the legislation to cover more communities, it begs the question of how the new legislation will be implemented and what funds will be available to those communities.

I am keen to hear the minister’s comments about the principle and the detail of amendment 92. I certainly hope that she will support the principle. I hope that I have got the detail right, although that can never be guaranteed. I am also keen to hear the minister’s comments on the intention behind the amendment. I hope that she will support it and that I have at least got some of the detail right.

I move amendment 92.

I welcome the intention behind Sarah Boyack’s amendment 92. The amendment requires ministers to adjust the application criteria that apply to any funds that are maintained by ministers and which provide financial support to community bodies for the purchase of land. That ensures that funding provision is made for both part 3A and part 2 community bodies, so that they will have the same access to funds for the acquisition of land.

Current funding would be available, via the Scottish land fund, to part 3A community bodies in the same way that funding is currently available to part 2 community bodies. The current Scottish land fund, which funds land acquisitions, runs until March 2016. We are considering how the fund will operate, and the scope of its eligibility throughout Scotland, from 2016 to 2020.

As the First Minister announced in June last year, a further £3 million has been allocated to the Scottish land fund for 2015-16, with a total of £9 million since 2012-13. We have also committed to extending the Scottish land fund until 2020. Community bodies can, of course, also seek funding from sources other than funds that are maintained by ministers.

On that basis, I ask Sarah Boyack to withdraw amendment 92.

If I understand the minister rightly, she has said that communities already have the rights that I am intending to include in the bill. She has made that commitment on the record—I will seek clarity that my understanding is correct after the meeting. For that reason, I will not press amendment 92. However, I reserve the right to bring an amendment back if my understanding of that commitment is in any way not 100 per cent right.

Amendment 92, by agreement, withdrawn.

Section 48, as amended, agreed to.

After section 48

The next group is on persistently abandoned and neglected land: compulsory sale order. Amendment 93, in the name of Sarah Boyack, is the only amendment in the group.

The package of changes that we are debating should include amendment 93, because it was one of the recommendations of the land reform review group’s final report. When we debated the Scottish Government consultation on the Community Empowerment (Scotland) Bill many months ago, the then Minister for Local Government and Planning, Derek Mackay, said that he would address extending local authorities’ compulsory purchase powers. I was keen for the Scottish Government to do that, but I do not see it in the bill.

I want to address the gap in respect of the potential role of local authorities as the key democratic and civic players with the capacity to bring land back into use for public benefit and to assist and empower community groups to identify new and better uses for that land. That is especially important in an urban context, where land can lie abandoned or neglected for years and become a blight on the community, thereby frustrating social and economic progress.

Amendment 93 would introduce a new part 3B to the 2003 act, to address

“persistently abandoned or neglected land”,

through the introduction of compulsory sale orders. Proposed new section 97ZB will introduce a requirement for local authorities to establish and maintain an abandoned land register. Subsection (5) sets out that

“Land is eligible to be included in an abandoned land register if in the opinion of the local authority it ... has been abandoned or neglected for a continuous period of at least 3 years”

and it

“may be in the public interest for the land to be subject to a compulsory sale order under section 97ZD.”

Land that is excluded from proposed new part 3A of the 2003 act’s provisions on the community right to buy abandoned or neglected land will also be excluded from proposed new part 3B. Proposed new section 97B(4) provides that

“Land may be included on the abandoned land register ... at the initiative of the local authority, or ... on an application by a community body.”

Under subsection (6), the local authority is required to send notice to the land owner and any creditor and to invite representations, although, under subsection (7), that it is not required if the individuals cannot be identified. The local authority must notify its decision on whether land is to be included in the abandoned land register to owners, creditors and the community body, as set out in subsection (9), and make arrangements for those parties to apply for a review of the decision under subsection (10).

Proposed new section 97B(13) of the 2003 act provides that the local authority must make its abandoned land register available for inspection in person and online. Subsection (14) provides ministers with the power to make regulations on further provisions in relation to abandoned land registers, as they see fit.

Proposed new section 97ZC of the 2003 act states that

“a local authority must have regard to any guidance issued by the Scottish Ministers in relation to the duties”

that will be imposed by section 97ZB.

Proposed new section 97ZD of the 2003 act will introduce compulsory sale orders so that where

“land has been included on an abandoned land register for a continuous period of at least 3 years, the local authority must, if requested to do so by a community body,”

issue a compulsory sale order, requiring the owner to offer the land for sale through a public auction. That public auction must take place within six months of the order being issued. Under subsections (2) to (5), after that period, if certain conditions are met, the local authority

“must offer the land for sale at a public auction as soon as practicable”.

Where land is put up for sale at a public auction and the land is not sold, no further application for a compulsory sale order may be made for at least three years from the date of auction. Where land has been purchased following a compulsory sale order, the owners have three years to at least commence work towards appropriate development, or the local authority may acquire the land for itself.

Proposed new section 97ZF of the 2003 act makes provision for ministers to make further provisions by regulations, as they see fit, in connection with the powers of the part.

Amendment 93 is based on recommendations from the land reform review group’s final report. There is a gap in the proposed legislation that needs to be filled. I am concerned that land is blighted year on year. The amendment would improve the capacity to deliver on the objectives that have been set out in the policy memorandum by ministers. I hope that the minister will look favourably on the proposals that I have made.

I move amendment 93.

The purpose of amendment 93 is to require each local authority to establish and maintain a register of

“persistently abandoned or neglected land”

in its area—that is, land which has been continuously neglected or abandoned for at least three years. Amendment 93 would enable a community body to request that a local authority instruct the landowner to offer the abandoned or neglected land for sale. The land would have to be offered for sale via pubic auction within six months of the landowner’s being instructed to do so by the local authority. The amendment would also require the local authority to offer the land for sale via public auction, and allow the local authority to compulsorily acquire land that had been sold via public auction, in certain circumstances.

I appreciate what Sarah Boyack is trying to achieve with amendment 93, and the ideas behind it. However, a great deal of careful thought and consultation would be required for such far-reaching proposals, and no consultation of local authorities has yet taken place.

The aim of the abandoned and neglected land provisions in proposed new part 3A is to get such land back into productive use. It might be difficult for community bodies to obtain funding to use the proposed provisions and bid for the land at auction. The proposals require land to have been abandoned or neglected for a total period of six years before the local authority can, at a community body’s instigation, require the landowner to sell the land at public action. However, the bill as drafted will allow a community body to acquire abandoned or neglected land six months from the date on which ministers consent to the application.

I consider that the provisions in section 48 offer far more to communities, while balancing the rights of landowners, and will ensure that land is brought back into productive and sustainable use far more quickly and effectively than amendment 93 proposes.

Section 48 will ensure that a community body’s proposals will further sustainable development of the abandoned or neglected land, and that acquisition of the land is permitted only where that is in the public interest. It will also ensure that landowners are fully compensated for sale of their land by way of the provisions that require an appropriate valuation to be carried out, which attracts appeal rights, and it will ensure that the landowner is properly compensated for any loss or expense that is incurred in connection with an application that is made by a proposed new part 3A community body.

The section 48 provisions will ensure that a community body must demonstrate that it has plans to use the abandoned or neglected land in a way that will further the achievement of sustainable development of the land. However, there are in amendment 93 no such requirements for when the land is sold via public auction. I do not consider that the proposals are sufficient to ensure that the issues that are afflicting land that is classified as abandoned or neglected would be fully and properly addressed. For that reason, I ask Sarah Boyack to seek to withdraw amendment 93.

I listened carefully to the minister’s comments. She said that there are better provisions for communities in the bill as drafted and that there are flaws in some of the detail of what I suggest in terms of the timescale. I want to look at that and may bring the issue back at stage 3. Accordingly, I seek agreement to withdraw the amendment. However, I think that there is an issue in relation to involving local authorities and enabling local authorities to play a role that I think they do not currently have under the bill.

The minister said that the detail has not been consulted on. That is true, but the provision is something that was talked about in the land reform review group report. The ambition to allow stronger community purchase powers by local authorities was also something that was in the initial consultation.

I will consider the drafting of my amendment, but I dispute the view that there has been no discussion of the issue, because ministers themselves floated the prospect of using some form of local authority compulsory purchase order process to ensure easier access to community right to buy.

Amendment 93, by agreement, withdrawn.

Amendment 94, which concerns the right to register an interest in land and be notified of proposed changes in its use, is in the name of Sarah Boyack and is the only amendment in the group.

I lodged amendment 94 in order to try and implement a community right to register an interest in land, as recommended by the land reform review group in its final report. The review group referred to that right as

“a low threshold opportunity to register an interest in land”.

Essentially, a community group’s registering an interest would result in that group being notified of sales and changes in owner. The benefit of that approach is explained in the review group’s report. The group noted that such a register of interest would reduce the chances of community interests being damaged, by making landowners and planning authorities aware of those interests.

It is also suggested that the approach could encourage greater co-operation between landowners and communities, and that it would help communities to be better prepared to make use of part 2 of the Land Reform (Scotland) Act 2003, with the knock-on effect of reducing late and missed applications.

12:00  

In the stage 1 evidence sessions, the committee was keen to avoid communities missing the boat and having to make use of late applications. The proposed new section of the 2003 act that amendment 94 would insert would raise awareness among owners and communities, and it would shift the balance of power.

Rather than land and buildings remaining empty for years, the measures would potentially change how we think about unused land. They would provide a hugely valuable opportunity to enable community development, which would strengthen the opportunities and influence of communities and local authorities in bringing that about.

I move amendment 94.

Amendment 94 seeks to give a community body the power to request that an interest in land be registered. Ministers could direct the keeper of the registers of Scotland to register that interest if they decided that that was in the public interest.

Where an interest was registered, amendment 94 would require the keeper to notify the landowner and any creditor in a standard security of the registered interest. Where the landowner or creditor in a standard security proposes to transfer or take any action with a view to transferring the land or to undertake development of a kind set out in regulations in relation to the land, the amendment would place a duty on the landowner or creditor to notify the community body of the proposal.

Where an interest is registered, under amendment 94 a landowner or creditor who is proposing to take steps to transfer their land, or who is developing their land in certain ways, would be required to notify the community bodies that have registered an interest of the intention to do so. However, there are no timescales within which the landowner or creditor in a standard security must do that. There is nothing in the amendment to stop the owner or creditor immediately selling the land directly after notifying the community body of their intention to do so. That would mean that, even if a community body was notified of the intention to sell the land, it would not necessarily have time to take any action to acquire the land before it was sold to someone else.

There are no prohibitions placed on the landowner in relation to disposal of the land, which would give the community time to take steps to acquire the land after notification to the community body. The landowner or creditor will be freely able to transfer or develop the land, notwithstanding the existence of the registration of interest. The landowner is not prevented from taking steps to transfer the land, so there may not be an opportunity or time for a community body to submit a late application under part 2 of the 2003 act or to contact the landowner with a view to purchasing the land.

Further, amendment 94 does not contain any enforcement provisions that would place any kind of sanction on the landowner or creditor if they did not comply with the provisions of the amendment and just sold or developed the land without notifying the community body. That is different from part 2 of the 2003 act, which places certain prohibitions on landowners throughout the application process in order to ensure that the landowner cannot undertake avoidance measures to avoid the effect of the provisions of part 2 of the 2003 act.

Unlike part 2 of the 2003 act, which contains well-considered checks and balances throughout the application procedure, the provisions in amendment 94 could place a disproportionate burden on landowners. It could be the case that many community bodies register their interest in a piece of land, which would require the landowner to notify each of those community bodies each and every time the landowner took any action with a view to selling the land or developing the land in certain ways.

Amendment 94 seeks to include notification requirements when a landowner is undertaking development on the land in certain ways, but I do not think that it is necessary to deal with the development of land in that way. Planning legislation already includes requirements for public consultation.

The provisions of amendment 94 do not require a community body to undertake any further work after its initial registration of interest. Unlike under part 2, the community body would not be required to carry out further work for a potential acquisition—for example, preparing its business plan and demonstrating why its plans will further the achievement of sustainable development. However, it is clear that stakeholders welcome measures that encourage communities to be proactive when seeking to purchase land. The provisions of part 2 of the 2003 act currently achieve that aim, but amendment 94 would not.

I know that the proposal behind amendment 94 is the first in the land reform review group’s menu of land rights, but we are still considering the review group’s final report and recommendations, through the likes of the land reform bill consultation. For those reasons, I ask Sarah Boyack to seek to withdraw amendment 94.

No other members wish to speak, so I invite Sarah Boyack to wind up and to say whether she wishes to press or withdraw her amendment.

I welcome the fact that what I am proposing is not ruled out for the future, even though the minister has said why she thinks the detail of amendment 94 is not fit for purpose. However, the matter could be considered as part of the next stage of land reform. In the absence of a queue of colleagues speaking in support of amendment 94, I shall graciously withdraw it, with the committee’s permission.

Amendment 94, by agreement, withdrawn.

We move on to a duty on local authorities to support community bodies, crofting community bodies and part 3A community bodies. Amendment 95, in the name of Sarah Boyack, is grouped with amendment 98.

The backdrop to amendment 95 is that, having been involved in the local government brief over the past three years, I am keen that local authorities and communities work together. The intention behind the amendment is to add another route to help communities to exercise the right to buy.

The provisions in the bill will significantly strengthen the legal framework for communities to work together to take ownership of local assets for the benefit of local people, but I hope to explore more closely with amendment 95 and the consequential amendment 98 how the bill will support that in practice. Even with the streamlined processes that the bill seeks to introduce, the journey for a community from the initial idea to taking ownership remains complex. I know from my work as an MSP how challenging that process can be for communities, so I am keen to ensure that information and support are available to communities from the outset to help them to take forward their ideas.

For the purposes of getting this important issue discussed, my amendments suggest that local authorities could be of great assistance in providing support in the first instance. Amendment 95 would place a duty on local authorities to provide support to groups seeking to constitute themselves as community bodies for the purposes of parts 2 and 3 and proposed new part 3A of the 2003 act, and to provide support to groups that are already constituted as community bodies and are seeking to register interest or progress the right to buy.

I understand that that is a significant change, so ahead of that duty coming into force, the Scottish Government would be required to consult and issue guidance to local authorities on how they would be expected to carry out that function. I am not trying to set out the detail of exactly how that would happen; I accept that to do that in the bill is not the best way. However, one of the things that concerns me is that it is not just a question of legislation but one of community capacity. We are seeking to increase community empowerment, and although there are many communities out there for whom the potential in the legislation could be fantastic, we have to accept that skills, resources and knowledge are not equally distributed throughout society and that not all community groups will have the necessary first-hand experience on day 1.

Amendment 95 is about communities having the capacity to exercise the provisions of the bill, however they end up in detail once we have gone through stages 2 and 3. I am very keen that the human aspect of the bill be assisted and promoted, and that social and community aspects will be supported, so that communities can exercise the new powers in the bill.

If the Scottish Government does not see local authorities as the best route to achieving that aim, I would be keen to hear from the minister how she thinks community empowerment might be taken forward. Do you see, for example, Co-operative Development Scotland having a role, with the new community bodies definition bringing co-operative organisations into play? Do you see Highlands and Islands Enterprise’s powers being expanded? Do you see Scottish Enterprise, which does not currently have a social aspect to its constitution, becoming an alternative way to support communities? If Scottish Enterprise were to be involved, that would change its purpose.

I strongly prefer the local authority route, because it would be consistent across the country. Local authorities already have community development functions and community development experience. There is an accountability issue, which would apply across the whole country. That would be a better route, in terms of clarity and consistency. I am not suggesting what should be the detail; amendment 95 is more about competence for local authorities. I hope that the minister will look favourably on my intentions and the detail of my amendment.

I move amendment 95.

I appreciate where Sarah Boyack is coming from with amendment 95 and I welcome the local government experience that she brings to the discussion, with regard to local authorities and community capacity.

Amendment 95 would place a duty on local authorities to provide support to groups of people within a local authority area who are seeking to form bodies for the purposes of exercising the various rights to buy in the Land Reform (Scotland) Act 2003. The amendment would also place a duty on local authorities to support

“community bodies, crofting community bodies and Part 3A community bodies”

in exercising the various rights to buy under the 2003 act.

Amendment 95 would also require ministers to issue local authorities with guidance to assist them in carrying out the support services that they would provide under the amendment. Finally, amendment 95 would also provide that, before issuing that guidance to local authorities and within one year of the provision coming into force, ministers would be required to consult such persons or bodies as they considered appropriate.

I recommend that the amendment be rejected as I do not believe that the duty to provide a support service to community groups is best placed on local authorities. There are currently a number of sources of support for community groups that wish to exercise the rights to buy under parts 2 and 3 of the 2003 act. Those sources of support include the Scottish Government and Highlands and Islands Enterprise, both of which support communities through the entire right-to-buy processes. It is ministers’ intention that the support provided by the Scottish Government will be extended to communities that wish to exercise a right to buy under the new part 3A of the 2003 act.

I take Sarah Boyack’s point about the building of community capacity, but that could be a function of the community land agency that is to be created and which was announced in the programme for government. Once established, the agency may have a key role in supporting all communities that wish to exercise the various rights to buy under the 2003 act, and to support them through the processes.

I do not believe that there is a need to include in the bill provisions that state that there must be consultation on any guidance issued by Scottish ministers about the various rights to buy. Stakeholder engagement is an essential part of such a process, and stakeholders and appropriate persons will be consulted as any draft guidance is prepared.

Amendment 98, which is linked to amendment 95, seeks to require ministers to consult on the guidance to be issued under amendment 95 within a year and a day of royal assent to the bill. As I said, stakeholder engagement is always an essential part of the process, and stakeholders and appropriate persons will be consulted as any guidance is prepared by Scottish ministers on the changes that the bill makes to the community right to buy and the crofting community right to buy and on the new right to buy neglected and abandoned land.

For those reasons I ask Sarah Boyack to withdraw amendment 95 and not move amendment 98.

12:15  

I welcome some of the comments in the minister’s speech. I note the reference to the proposed community land agency. There may be opportunities, through the agency, to help with this process.

The point that I wanted to draw attention to was that, if we are thinking about social justice, not all community bodies will be equally placed at the start of the journey to exercise greater influence on their communities. Areas that have been economically deprived and socially held back will struggle with the complexity of implementing the bill and with how they can make use of its provisions.

Although I will reflect on what the minister has said, I wanted to ensure that Co-operative Development Scotland, HIE and Scottish Enterprise were mentioned in the Official Report in relation to the bill. We should be thinking about the range of agencies that could promote community ownership and community use of land. Local authorities are a key interest group. They have a unique democratic legitimacy that the community land agency and HIE do not have at the local level.

I am interested in the idea that the Scottish Government itself will provide support to communities. I support the localism principle—I have not seen colleagues queueing up to support it, so perhaps I will speak to them afterwards about it—so I think that we should not pass legislation that looks to the centre to provide all the support. The shape of the community land agency might be the solution. However, I was keen to explore with colleagues, in public, the idea that local authorities, with their range of experience and other social and economic obligations, might be a beneficial player in the process. I seek leave to withdraw amendment 95.

Amendment 95, by agreement, withdrawn.

Section 49 agreed to.

After section 49

We come to review of compulsory purchase legislation and guidance. Amendment 96, in the name of Sarah Boyack, is in a group on its own.

Right, colleagues, my last few amendments have not been universally supported. Why have I lodged this one? One of the opportunities of stage 2 is to anticipate how the legislation will work in practice, to test the strength of the proposals in the bill and to ensure that, when ministers respond to our amendments, they make commitments in public, on the official record.

I have raised the issue of a review of compulsory purchase legislation. It was a commitment from ministers, in the chamber, when we debated the bill at an early stage, before a committee had been allocated to take it forward. When I was on the case as local government spokesperson, I was keen to explore the opportunities of using compulsory purchase legislation. During the initial consultation, the Government asked whether communities should have the right to request that a local authority use a compulsory purchase order on their behalf.

The minister said that the detail of my previous amendment was not fit for purpose and that there were better alternatives in the bill. One of the things that we have to do, in passing legislation, is to ensure that that legislation will last, not just for the first couple of years but for a significant period. In a way, I would like to future proof the legislation.

The consultation document highlighted that, under their existing guidance, local authorities can use CPO powers to bring vacant and unused property back into use and that there is the possibility of transferring property to a community group once it has been purchased. It was noted at the time that powers have not been used for such a purpose. The analysis of responses to the Government’s initial consultation, which was published in December 2012, found overall support from respondents for communities having the right to request that the local authority use CPO powers on their behalf. Many community groups and third sector representatives saw that as representing a significant shift in the balance towards community empowerment.

In response to questions about the extension of the community right to buy, the Glasgow and West of Scotland Forum of Housing Associations noted that such an extension would be “a useful additional route” to CPO, which it described as the “most obvious route” for bringing unused buildings back into productive use.

However, in the Government’s second, more detailed consultation in November 2013, all reference to community purchase was gone, with the focus shifting to a compulsory right for communities to purchase land that would later evolve into the part 3 provisions in the bill.

Amendment 96 seeks to return us to the discussion on whether compulsory purchase could be a useful route by which communities can bring assets back into productive use. If ministers do not like my previous amendment, amendment 93, they may view this one as providing a less prescriptive route. It would require ministers to conduct a review of compulsory purchase powers as they sit at present and to report on the outcome. Such a review would allow consideration of how community purchase contributes to sustainable development; whether communities are sufficiently involved; whether communities should have the right to request the initiation of compulsory purchase; and whether the process could be made more efficient.

As with the community right to register an interest in land, which we discussed earlier, the right to request a CPO was recommended by the land reform review group. Amendment 96 would help to take us towards that point.

The amendment would also potentially provide future proofing. We know that local authorities will change over time and that experience will grow following the initial implementation of the bill. I would like the option that the amendment provides to be available, certainly in principle. The amendment is a lot less prescriptive than the others that I have lodged.

I would like local authorities to be part of the process in the future. If there is a complex network of land ownership in an urban area, there may be circumstances in which one might want the local authority to bring some of that land into use, potentially for housing that could be delivered either by the local authority or by other housing providers. We might want to guarantee that there is a community option, so that land can be acquired and given to the community. It might be about thinking about the community from day 1 when a bigger CPO is taking place.

The amendment offers a slightly different route. It would require the Government not necessarily to bring forward a right to request a CPO at this stage but to make a commitment that there will be a review over time. For that reason, it would be a useful addition to the bill.

I move amendment 96.

I have considerable sympathy with Sarah Boyack’s point about the involvement of communities in compulsory acquisition processes. That is an element that is missing, and local authorities have been notoriously unwilling to undertake compulsory purchase actions in circumstances in which they should have undertaken them. One of the reasons is that local authorities are reluctant to find themselves the owners of property on which they then have to expend resources.

The involvement of communities in compulsory purchase actions would solve that problem, and would in fact create a virtuous circle. I can think of a number of circumstances in my constituency in which communities would very much favour an action of compulsory purchase by the local authority if that led to the transfer of the asset to the community.

The issue is genuine and important, and the fact that the land reform review group made the recommendation adds weight to it. However, I do not think that the bill is the place in which to stipulate a Government review. That is problematic: if the review took place and the Government reported, that part of the bill would go out of use, unless the Government carried on reviewing. There is no indication in amendment 96 that a review should take place every five or 10 years, which is the sort of stipulation that would have a place in the bill.

The bill is not the place for specifying a review, but I hope that the minister might commit to considering the issue again. If a specific proposal was made at stage 3 to introduce the ability for communities to request compulsory purchase, that would, although the issue is complex, certainly be of interest. If the minister and the Government were to look again at the use of compulsory purchase in order to transfer assets to communities, perhaps with a view to bringing forward a proposal in further land reform legislation, that would meet the objective, which is a genuine one.

As no other members wish to comment, I invite the minister to respond.

Amendment 96 would require ministers to carry out a review of compulsory purchase legislation and guidance in order to consider how communities could be further empowered in relation to the better use or acquisition of land. I take on board the points that were very eloquently made by Mr Russell. I appreciate that it is an important issue.

It is not appropriate to add provisions to the bill that would require a review to be carried out of compulsory purchase legislation. In December 2014, the Scottish Law Commission published its discussion paper on compulsory purchase, and it seeks responses to its consultation by June. The discussion paper examines the current statute law on compulsory purchase, suggests that it is antiquated, outdated and unfit for purpose, and proposes that it should be replaced by a comprehensive modern statute. Following consultation, the Scottish Law Commission will issue its final report and recommendations for future action. We will be happy to consider that as part of the consultation process on the proposed land reform bill.

I therefore ask Sarah Boyack to withdraw amendment 96.

I welcome Mike Russell’s supportive comments. I think that the amendment deals with an important issue, and I welcome the minister’s comment that it can be looked at in the future.

We are talking about bringing in an important additional route. A review of CPO powers is under way, and I hope that I have highlighted the importance of bringing communities into that discussion. We should seek opportunities to expand the existing compulsory purchase legislation and the capacity to use it in the interests of community groups so that, in the context of the bill, we can make better use of land that is not meeting its full potential.

On those grounds, I seek the committee’s permission to withdraw amendment 96.

Amendment 96, by agreement, withdrawn.

Schedule 4—Minor and consequential amendments

Amendments 38 to 41 moved—[Aileen McLeod]—and agreed to.

Amendment 55 not moved.

Amendment 88 moved—[Aileen McLeod]—and agreed to.

The next group is on decisions under parts 2, 3 or 3A of the 2003 act: ministers to have regard to the International Covenant on Economic, Social and Cultural Rights. Amendment 46, in the name of Mike Russell, is the only amendment in the group.

I will quote from the covenant. I apologise for the gender-specific language, but it was written in 1966. It says:

“Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights,

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant”.

12:30  

The Scotland Act 1998 places an obligation on the Scottish Parliament to observe and implement international obligations. That is a matter that is devolved. Of course, it is not entirely clear what that means, and there are some difficulties with it. However, in light of what I have quoted, it is important to ensure that those rights are respected and that everything that we can do is focused on ensuring that we meet our international obligations.

If we fail to recognise those wider rights and are mindful only of, for example, the European convention on human rights, we are promoting—always promoting—the concept of individual rights and never promoting the concept of community rights. It is important, at least at the base of decision making by ministers, that they should be mindful of those wider obligations.

In the area of land reform, it is also important that they are mindful of those wider obligations, because, as we can see in the developing debate over land reform, the issue will, at times, become a debate between the rights and expectations of an individual and the rights and expectations of a community. Ministers have to be able at least to consider the wider obligations that the Parliament and the Government owe to a community.

The international covenant lays out a wide range of obligations, not all of which are relevant, but it would be helpful to ministers to have reference to it; it would be helpful to the land reform debate; and, most importantly, it would be helpful to communities, which would be able to see that they are not always pitted alone against individuals, some of whom are extremely powerful, but have a wider body of law and international agreement on which to draw.

In my view, this is a modest amendment. I know that there are those who are of the school of thought that says that the more you put into a bill, the more can be challenged, and who might therefore think that the amendment could add a complication, but I think that it would reassure communities that, when they find themselves challenging powerful individuals, there is a wider, global context and there is protection for their rights.

I hope that this modest proposal will prove acceptable to my colleagues on the committee and to the Government.

I move amendment 46.

In a 2013 review of the application of the covenant, the Scottish Government said that it is committed to giving effect to international human rights treaties in a way that works for Scotland. It said:

“We are working to ensure that Scotland’s distinctive approach is incorporated into the UK’s reporting to international treaty bodies and their subsequent examination of our human rights records under UN and Council of Europe Conventions and Treaties to which the UK is a signatory.”

That underlines the fact that the covenant has a purpose that is reviewed regularly.

To back up what Michael Russell says about the interests of communities, it might well be that the convention becomes something that it is even more important to have incorporated into domestic law as we move into the land reform processes. I would like to give my support to Michael Russell’s comments.

As we all did, I received a letter from the minister yesterday that seems to indicate that the covenant is subservient—that might not be the right technical expression—to the ECHR. Can she clarify that when she responds? I see that heads are being shaken, but that was the impression that I got from the letter.

I support the amendment, in view of the sometimes very powerful individual interests in relation to matters concerning urban and rural land. I believe that the inclusion of the amendment will be a recognition of the importance and value of the rights of communities to be empowered and take forward their own destiny.

As we have heard, amendment 46 requires ministers to have regard to the International Covenant on Economic, Social and Cultural Rights when making decisions under parts 2, 3 or 3A of the 2003 act.

As Mr Russell has explained, the covenant is an international human rights treaty that sets out certain rights that state parties agree to recognise, and aspirations to work towards. As is highlighted in the Scottish Government’s contribution to the UK’s periodic report to the Committee on Economic, Social and Political Rights, a copy of which I provided to the committee as an appendix to my letter of yesterday, we are committed to giving effect to international human rights treaties in a way that works for Scotland, and that document sets out the steps that the Scottish Government has already taken to give effect to the treaty.

In response to the question that Mr Fergusson asked, I note that neither the ECHR nor the covenant is subservient. They are taken into account together.

The rights in the covenant are high-level and aspirational rights that are suitable for implementation by Governments as part of, for example, a legislative programme. The introduction of the bill could be considered evidence of Scotland’s commitment to take into consideration the rights that are recognised by the covenant.

Amendment 46 would place the responsibility for testing and directing Scotland’s approach to the covenant at the door of the courts, even though the covenant’s wording does not easily translate into clear, enforceable rights. The terms of the covenant have not been drafted in a way that lends itself to interpretation by the courts. However, it is absolutely certain that acts of the Scottish Parliament and decisions of ministers are not law if they are incompatible with the rights that are set out in the European convention on human rights, and the amendment would not affect that.

Ministers must in any event have regard to the covenant and other international treaties in order to comply with their obligations under the ministerial code. I appreciate that Mr Russell is keen to ensure that ministerial decisions about the right to buy are taken subject to appropriate safeguards to ensure that they are fair and in the public interest. I consider that the 2003 act and the bill already provide for that. However, in the interest of stating the Government’s support for the covenant within those rights to buy, I support amendment 46.

If the committee agrees to the amendment, I will need to consider whether any amendments are needed at stage 3 to ensure that the amendment is effective.

I call on Mike Russell to wind up and press or withdraw amendment 46.

I very much welcome the minister’s comments. At the risk of using this as an advertising slot, I note that the Scottish Human Rights Commission and Community Land Scotland, along with me, will be hosting an event in the Parliament on 1 April, which members are welcome to attend, to consider the wider question of human rights and land reform. That is just a little plug for that event. I press amendment 46.

I hope that the event will be after midday so that it is not an April fool.

The question is, that amendment 46 be agreed to. Are we agreed?

I will say something briefly, convener, if I am allowed to. I wish to abstain to keep my options open at stage 3.

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Dey, Graeme (Angus South) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Hume, Jim (South Scotland) (LD)
MacDonald, Angus (Falkirk East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)

Abstention

Fergusson, Alex (Galloway and West Dumfries) (Con)

The result of the division is: For 8, Against 0, Abstentions 1.

Amendment 46 agreed to.

The next group is on acquisitions of land under parts 2, 3 or 3A of 2003 act: mediation. Amendment 47, in the name of Graeme Dey, is the only amendment in the group. I call on Graeme Dey, who has waited a long time for this, to speak to and move his amendment.

Thank you, convener. I will be brief.

It would be nice to think that the aims of the Community Empowerment (Scotland) Bill, which the past two and a half hours have demonstrated everyone round the table supports, will be realised without any instances of disagreement or indeed conflict. However, we live in the real world and there will be scenarios of that nature—and often, once the dust settles, those who have been involved in the process will have to live alongside each other or at least come into contact on occasion. Therefore, if it is practically possible to facilitate mediation when it is requested, common sense tells us that that should be done.

It is in everyone’s interests to make the bill work as simply and cleanly as possible, and stakeholders such as Peter Peacock of Community Land Scotland and Sandy Murray of NFU Scotland were clear in their evidence to the committee about the merits of being able to call on mediation. Certainly, private discussions that I have had with landowning interests suggest that they, too, would favour it. I hope that this amendment is one that the Government might be prepared to accept.

I move amendment 47.

I very much agree with the principles that have been put forward by Mr Dey, and I am very supportive of the amendment.

The purpose of amendment 47 is to give ministers the power to introduce a mediation service to assist with the negotiated transfers of land from landowners to those community bodies that wish to exercise their right to buy under parts 2, 3 or 3A of the Land Reform (Scotland) Act 2003.

That would enable ministers to make the necessary arrangements and would enable their departments and agencies to arrange the facilitation of negotiated transfers of land that would otherwise be the subject of a proposed acquisition under the community right to buy, the crofting community right to buy or the new right to buy abandoned or neglected land.

Such a service could well be a function of the dedicated resource for community land ownership that was announced in the programme for government, such as a community land agency. A short-life working group will be set up as part of the 1 million acres target work and will look into that.

In proposing the amendment, Graeme Dey is giving a clear indication of this Government’s commitment to support all parties in trying to find solutions that are acceptable to everyone concerned, and for that reason I support amendment 47. However, I also propose lodging an amendment at stage 3 to ensure that it refers to community bodies, crofting community bodies and part 3A community bodies specifically, as well as ensuring that the amendment is technically correct.

I welcome that support and I press amendment 47.

Amendment 47 agreed to.

The next group is on acquisitions of land under parts 2, 3 or 3A of 2003 act: correction of errors. Amendment 56, in the name of Claudia Beamish, is the only amendment in the group.

Part 4 of the Community Empowerment (Scotland) Bill builds on the experience that we have gathered over the past decade—and far back from that as well—in relation to the community right to buy and the findings of the land reform review group.

We have heard strong evidence highlighting the complexity of the process for community bodies, and a number of provisions in part 4 are about streamlining that process. My amendments aim to recognise and ease the pressure that is placed on community bodies during the right-to-buy process in two very specific ways.

Amendment 56 would give community bodies under parts 2, 3, and 3A of the 2003 act the opportunity to correct clerical and other non-material errors in an application at any time before it is disposed of. Given the complexity of the process, that would reduce pressure on community bodies and ensure that applications are as accurate as possible.

Amendment 57 seeks to provide some flexibility in the numerous short timescales throughout parts 2 and 3A, which principally fall on community bodies. I recognise the need for those timescales and, as drafted, they are not unreasonable. However, although community bodies should seek to meet the timescales—

We are only talking about amendment 56 at this point.

I apologise. I moved on to amendment 57—my mistake.

I move amendment 56.

Amendment 56 is clearly a reasonable amendment, and I would be quite happy to support Claudia Beamish if she is so minded to press the amendment.

Thank you. We will see whether the minister thinks that it is reasonable when she responds.

There are no provisions in the 2003 act that allow a community body to amend its application to correct any errors. If an application contains a technical error, ministers will be bound to reject the application. However, Scottish Government officials work closely with community bodies during the application process to reduce the likelihood of a technical error being made in the application.

Amendment 56 seeks to enable a community body to correct any clerical or non-material error in its application before a ministerial decision is made on the application or the application is otherwise disposed of. We should consider the overall effect that that would have on the timing of the application process.

If a process were introduced to allow the amendment of applications, an additional time period would need to be introduced to allow the other parties to reconsider the amended application. Additional time would also be required to enable counter-representations to be made on that amended application.

In addition, amendment 56 could open up the potential for applications to be appealed if they have been changed to any large extent. We believe that the assistance that officials give the applicants in submitting their application is sufficient to deal with the issue of clerical or non-material errors.

For those reasons, I ask Claudia Beamish to withdraw amendment 56.

12:45  

In view of the minister’s remarks, I will withdraw the amendment. I will consider whether to reintroduce the proposal with more clarity and detail at stage 3, possibly following discussion with the minister.

Amendment 56, by agreement, withdrawn.

We move on to parts 2 and 3A of the 2003 act and the extension of periods of seven days to 14 days in certain circumstances. Amendment 57 is the only amendment in the group.

Thank you convener, and my apologies for rushing on to speak about amendment 57 earlier.

Amendment 57 seeks to provide some flexibility in the numerous short timescales throughout parts 2 and 3A, which principally fall on the community bodies. I recognise the need for the timescales and, as drafted, they are not unreasonable. However, although community groups should seek to meet the timescales, we need to remember that, in many cases, bodies will be run by voluntary and part-time effort. My amendment therefore provides a marginal flexibility to give ministers the discretion to extend the timescales to 14 days if they are satisfied that there is good and sufficient reason to do so.

I move amendment 57.

I feel that, if the provisions in the amendment are appropriate, we should just extend the timescale to 14 days anyway. I am concerned that we are creating two categories of timescale.

The effect of amendment 57 would be to allow ministers to extend the seven-day timescale in which either community bodies or ministers are required to take certain action, such as for the community body to provide certain information in connection with its application or ballot, or for the ministers to appoint a valuer. It is proposed that ministers may have discretion to extend the timescale to 14 days, when there are good and sufficient reasons for doing so, in order to give community bodies an element of additional flexibility should they require it.

If the option to extend these seven-day limits is offered, when time is of the essence it could cause timing issues for a community body, as ministers would have to set out their reasons for any decision to extend the time limit. If the request is considered to be invalid and is refused, most of the original seven days will, by then, have passed.

As you know, convener, I always like to end on a positive note. Therefore, to ensure that key stages of the process are met, I would propose bringing forward an amendment at stage 3 to ensure that amendment 57 achieves the intended effect and is technically correct. On that basis, I support amendment 57.

I am pleased that the minister has accepted the amendment.

Amendment 57 agreed to.

Schedule 5—Repeals

Amendment 42 moved—[Aileen McLeod]—and agreed to.

Section 99—Commencement

Amendments 97 and 98 not moved.

Long title

Amendment 43 moved—[Aileen McLeod]—and agreed to.

That ends this committee’s stage 2 consideration of the Community Empowerment (Scotland) Bill. The amended version of the bill will be printed once the Local Government and Regeneration Committee has completed its stage 2 consideration. Stage 3 amendments may be lodged after that point.

I thank the minister and members for the process. It has been a useful debate that has thrown up various issues that still have to be settled at stage 3, but it has made a lot of progress on behalf of the aims of the bill and in terms of improvements to it.