Justice 2 Committee, 09 Oct 2002

Meeting date: Wednesday, October 9, 2002

Official Report 180KB pdf

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Land Reform (Scotland) Bill: Stage 2

I welcome everyone to day 8 of our stage 2 consideration of the Land Reform (Scotland) Bill. We have reached section 24 in what is a marathon consideration of legislation. I welcome Allan Wilson and his officials.

Section 24—Local access forums

Amendments 47 and 48 moved—[Bill Aitken]—and agreed to.

Amendment 94 is grouped with amendments 133, 177, 394 and 395. As Murdo Fraser is not here, I presume that Bill Aitken will move amendment 94 in his absence.

Amendment 94 is straightforward. We feel that conservation interests should be represented in the new access forums. If the new access forums are to work—we all hope that they will—there must be the widest possible degree of representation from interested parties. That is the simple purpose of amendment 94.

I move amendment 94.

Amendment 133 is in the name of Sylvia Jackson, who is not here. Does anyone want to speak to amendment 133?

No.

Rhona Brankin is not here either. Does anyone want to speak to amendment 177?

No.

Does anyone wish to speak to amendments 394 and 395, which are in the name of Stewart Stevenson?

No.

As no other member wishes to speak, I invite the minister to speak to the current group of amendments.

Although the bill provides that local access forums should include reasonable representation of recreational and land-owning interests, it does not specify what the membership of those bodies should be. It is our intention that the guidance that will be issued to local authorities will address that issue. The guidance will include the need to consider conservation and other relevant interests. Access forums will have to take account of the interests of all those who exercise access rights, including those with disabilities. We believe that the matter is better addressed through guidance than through the bill. All interests are to be taken into account when appointing members to local access forums. As I have already explained, all guidance is subject to parliamentary veto.

Section 24, to which Stewart Stevenson's amendments refer, is already clear. Local access forums should include in their membership representatives of those exercising access rights.

On the basis of my assurance that these matters will be addressed through guidance, I hope that Bill Aitken will withdraw amendment 94, and that Sylvia Jackson and those members who favour Rhona Brankin's and Stewart Stevenson's amendments will not move the other amendments in this group.

Sylvia Jackson has arrived. Would you like to speak to the amendments in your name?

I apologise for my late arrival—I was a wee bit delayed. What amendments are we debating at the moment?

Amendment 94, which is grouped with amendment 133. You may speak to amendment 133 and any of the other amendments in the group.

Amendment 133 is similar to amendment 94, which refers to "conservation interests". I would like to insert in section 24 a reference to

"the interests of conservation of the natural and cultural heritage"

because those are defined in the bill. The term makes clearer what is meant by this provision.

I am sure that the minister has already made the point that we could add to the bill one interest group after another. However,

"the interests of conservation of the natural and cultural heritage"

are an important group that should be represented on local access forums. Their input could be useful if rare birds were nesting in an area and one wanted to create an alternative route that avoided it. I must declare an interest—I am a member of the RSPB's committee for Scotland.

If the minister is able to give us an assurance—I am sorry if he has done so already—that

"the interests of conservation of the natural and cultural heritage"

will be represented on forums, that will deal with some of the issues about which I am concerned.

There is no argument between us. We do not want to list in the bill all the interest groups that local authorities may want to appoint to local access forums. Conservation and natural heritage interests should be represented on forums, but it is best that that should happen at the discretion of local authorities. Our guidance to local authorities will specify that conservation and natural heritage interests should be represented on local access forums.

Amendment 94, by agreement, withdrawn.

Amendments 133, 177, 394 and 395 not moved.

Section 24, as amended, agreed to.

After section 24

Amendment 252 moved—[Allan Wilson]—and agreed to.

Before section 25

Amendment 305 not moved.

Section 25—Judicial determination of existence and extent of access rights

Amendment 99 is in a group on its own.

Amendment 99 is perfectly straightforward. We are seeking to specify, by map, the extent of the land in respect of which access rights are, or are not, exercisable. Clearly it is in the interests of everyone that the situation be as clear as possible. I will wait for the minister's comments before I decide whether to press the amendment.

I move amendment 99.

Section 25 makes provision for any dispute as to whether access rights are exercisable over land to be referred to the sheriff, using the summary application procedure. An application would have to describe clearly the land in respect of which it is proposed that access rights are not exercisable. We envisage that in practice any written description would be accompanied by a map; it would be impossible to suggest otherwise, as we have discussed in other contexts. The declaration will refer to the land as described in the application. If the application refers to a map, and we expect that it would, the sheriff could make reference to the map. We do not see the need to make specific provision for that in the bill. Consequently, amendment 99 is unnecessary as it covers something that would happen as a matter of course in courts.

I am prepared to accept that.

Amendment 99, by agreement, withdrawn.

Amendment 39 moved—[Scott Barrie]—and agreed to.

Amendment 306 not moved.

Section 25, as amended, agreed to.

Section 26—SNH: powers to protect natural heritage etc

Amendment 134, in the name of Jamie McGrigor, is grouped with amendments 198, 104, 100, 199, 200 and 201.

Amendment 134 seeks to place the onus on Scottish Natural Heritage to seek landowners' consent before taking appropriate steps to protect the natural heritage of land in respect of which access rights are exercisable. The thinking behind the amendment is fairly simple. Section 26 will enable Scottish Natural Heritage to take steps to protect the natural heritage of land in respect of which access rights are exercisable at present and requires regard to be given to section 3(1)(e) of the Natural Heritage (Scotland) Act 1991. As we all know, that section requires SNH to take into account the interests of owners and occupiers of land while carrying out its duties. It must take account of section 51(3) of the Wildlife and Countryside Act 1981, which requires 24 hours' notice to be given of intended entry to occupied land by an authorised person. The issue is straightforward. We are attempting to protect some of Scotland's beautiful land where clearly we should seek to protect both the buildings and the landscape.

Amendment 100 is a simple requirement for SNH to consult the occupiers and managers of land in relation to any powers to protect the natural heritage under the legislation.

I move amendment 134.

Before I call the minister, I point out that if amendment 198 is agreed to, I cannot call amendments 100 and 104. Agreement to amendment 104 would also pre-empt amendment 100.

Perhaps a brief recap of the history of section 26 would be appropriate at this juncture.

Members will recall that during consultation on the draft bill concerns were expressed that the creation of new rights of access to all land could impact adversely on the natural heritage in some areas. We have considered that carefully and accepted that that might prove to be the case in a few situations. We therefore drafted section 26 just prior to the introduction of the bill. The section gives SNH powers to protect the natural heritage in that scenario.

We have been giving further detailed consideration to the issue and we are clear that there is not a problem with sites that are designated for their natural heritage value—special areas of protection, special areas of conservation, and sites of special scientific interest. In those circumstances, SNH has adequate powers—by virtue of the special status conferred by European directives—to ensure that access does not pose a threat to those sites. In the case of the Natura 2000 sites, SNH is under a clear duty to ensure that the integrity of any site is not adversely affected. Section 26 is therefore limited to areas that are not designated for their natural heritage interest. There will be approximately 1,000 Natura 2000 sites by the end of the process.

There are existing measures to provide general protection to natural heritage interests and not just to designated sites. There is legislation in place relating to intentional disturbance of wildlife. As members know, we have plans to introduce regulations relating to reckless disturbance of wildlife and there is legislation in place that provides protection for plant life. In addition to all that legislation and forthcoming legislation, the code will include guidance on responsible exercise of access rights in respect of conservation of natural heritage interests. All that taken together suggests that there is no great need for more powers in the bill in respect of nature conservation. We consulted Scottish Natural Heritage on that question. We asked whether it wished to have more powers under the proposed legislation, but it took the same view as us; that there are sufficient powers in the bill and in other legislation to protect natural heritage interests.

That is why we lodged amendment 198. The effect of the amendment would be to limit the new powers that will be made available to SNH by the bill—powers that deal with issues such as extension of access rights and putting up and maintaining notices to warn people who are exercising access rights of any adverse effects that their presence might have on the natural heritage. Those powers will be reinforced by making it clear in section 2 of the bill that anyone who disregards such a notice will be considered to be acting irresponsibly and will, thereby, be excluded from exercising their access rights. That is a reasonable and balanced approach. I will not therefore support amendment 104, although I understand fully why it was lodged.

I hope that that explanation of how we have come to our position in conjunction with SNH will lead Sylvia Jackson not to move amendment 104 and to favour our approach. That approach has been taken in conjunction with the forthcoming wildlife protection bill, which will increase protection measures extensively. Some of that bill's measures on wildlife crime will probably, in due course, be considered by the committee. The wildlife bill will toughen up measures to protect wildlife from the criminal activities of those who seek to profit from stealing eggs and so on.

Amendments 134 and 100 would both require SNH to involve landowners before taking action under section 26. Amendment 100 would require SNH to consult landowners and amendment 134 would require SNH to obtain landowners' consent. I believe firmly that the decision on whether to act under section 26 should lie with SNH—in my opinion, that is what SNH exists for. If SNH considers action to be necessary, it should not be required to obtain landowners' consent. The introduction of such a requirement could undermine the whole of section 26.

Nor am I attracted to imposing a requirement on SNH to consult. Where practical, SNH should and would consult. SNH has an agreement with the Scottish Landowners Federation, as Bill Aitken will be aware, and with the National Farmers Union of Scotland, as George Lyon will know, that covers the procedures to be followed by SNH officers before they enter land. Those extant agreements between the parties will apply equally to the exercise of SNH's powers under the Land Reform (Scotland) Bill as to its powers under any other legislation.

However, one can see foresee instances, such as in efforts to catch wildlife criminals, in which SNH would need to act quickly without necessarily going through a consultative process. I expect that the existing agreements between SNH and the SLF and the NFUS will continue to operate, so I see no need to put on the face of the bill a statutory requirement for SNH either to obtain consent or to consult beyond the existing requirement to do so. I expect SNH to follow the existing provision for consultation in any event.

The other substantive amendment in the group is amendment 199. Just as there might be situations in which it is necessary to warn people who are exercising access rights that their presence could adversely impact on the natural heritage, such situations could also arise in respect of the cultural heritage. For example, if someone was out exercising their access rights and inadvertently came across an archaeological dig, one could imagine that they might disturb the process and thereby prospectively harm our cultural heritage. Amendment 199 will provide Scottish ministers with a parallel power in respect of cultural heritage. In practice, that power would be exercised on ministers' behalf by Historic Scotland, which is our agency on cultural matters.

Hence, amendment 199 and consequential amendments 200 and 201 would extend the power to protect our cultural heritage as well as our natural heritage.

Amendment 104 is a probing amendment. If I heard the minister correctly, he said that SNH already has the duty to cover all the areas that are listed in amendment 104, so there is nothing further to say.

Do any other members wish to speak?

I welcome the minister's explanation of the current process by which SNH accesses land in order to carry out its work. I was not aware of the agreement, and I thank the minister for clarifying matters.

Before I ask Bill Aitken to wind up, does the minister want to add anything?

No—other than to say that we will be strengthening the process by the provisions that will be in the new wildlife protection legislation.

I have listened to the minister with great care and I am sure that his intentions are the best, as always. However, I am not entirely satisfied that the bill as it stands offers sufficient protection. I will therefore press my amendment.

The question is, that amendment 134 be agreed to. Are we agreed?

No.

There will be a division.

For

Aitken, Bill (Glasgow) (Con)

Against

Barrie, Scott (Dunfermline West) (Lab)
Lyon, George (Argyll and Bute) (LD)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)

The result of the division is: For 1, Against 4, Abstentions 0.

Amendment 134 disagreed to.

Amendment 198, in the name of the minister, has been debated with amendment 134. If amendment 198 is agreed to, I cannot call amendments 104 and 100.

Amendment 198 moved—[Allan Wilson]—and agreed to.

Amendments 199 to 202 moved—[Allan Wilson]—and agreed to.

Section 26, as amended, agreed to.

Section 27 agreed to.

Section 28—Application of section 15 to rights of way

Amendment 50 moved—[Bill Aitken].

The question is, that amendment 50 be agreed to. Are we agreed?

No.

There will be a division.

For

Aitken, Bill (Glasgow) (Con)

Against

Barrie, Scott (Dunfermline West) (Lab)
Lyon, George (Argyll and Bute) (LD)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)

The result of the division is: For 1, Against 4, Abstentions 0.

Amendment 50 disagreed to.

Section 28 agreed to.

After section 28

Amendment 51 moved—[Bill Aitken].

The question is, that amendment 51 be agreed to. Are we agreed?

No.

There will be a division.

For

Aitken, Bill (Glasgow) (Con)

Against

Barrie, Scott (Dunfermline West) (Lab)
Lyon, George (Argyll and Bute) (LD)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)

The result of the division is: For 1, Against 4, Abstentions 0.

Amendment 51 disagreed to.

Amendment 52 not moved.

Section 29—Interpretation of Part 1

Amendment 203 moved—[Allan Wilson]—and agreed to.

Amendment 135, in the name of Jamie McGrigor, is in a group on its own.

Amendment 135 seeks to maintain the status quo in respect of non-tidal and tidal rivers, so that there is no change in the relevant rules and regulations.

I move amendment 135.

Mr McGrigor raises an interesting point about the difference between tidal and non-tidal rivers. For example, from Perth, the River Tay—I am sure that the minister is familiar with it—becomes tidal. Amendment 135 seeks to make it clear that the bill refers only to the non-tidal parts of a river. Otherwise, there will be differing interpretations of what is and is not permitted and I would have thought that, in many cases, such interpretations would be governed by commercial interests. Section 29 contains a serious loophole and unless the minister can demonstrate that he has closed that loophole elsewhere, amendment 135 should be agreed to.

The overwhelming power of Bill Aitken's argument has persuaded me that we should support the definition that is contained in amendment 135. That would mean that section 29 would comply with section 123 of the Civic Government (Scotland) Act 1982, which is an important consideration. I am happy to accept Mr McGrigor's amendment.

I am pleased that the minister was persuaded by Mr McGrigor's eloquence.

I am delighted that the minister accepts amendment 135, which will be to the benefit of the bill.

The minister has made Bill Aitken's day.

Amendment 135 agreed to.

Amendment 204 moved—[Allan Wilson]—and agreed to.

Section 29, as amended, agreed to.

That completes our consideration of part 1 of the bill—members may wish to celebrate now—and our consideration of the Land Reform (Scotland) Bill for today. We still have another two parts of the bill to get through, but we have completed a substantial part of it. I thank Allan Wilson for spending so much time with us. We will meet again after the recess to deal with part 2 of the bill.

I remind members that we will continue after the recess with a scheduled meeting on Wednesday 30 October, but members will be aware that we are trying to schedule additional meetings in order to meet our timetable.

Will there be a meeting on Tuesday 29 October?

We will discuss that during our consideration of the forward work programme.

We now move into private session.

Meeting continued in private until 12:15.