Sporting Rights (Raasay)
The final item on the agenda is an evidence-taking session on the Raasay sporting rights lease with the Minister for Environment and Climate Change, Paul Wheelhouse. I welcome the minister. With him are Drew Sloan, who is the chief agricultural officer, and Jonathan Pryce, the director of agriculture, food and rural communities in the Scottish Government.
Do you wish to make an opening statement, minister?
I do, convener. I thank the committee for inviting me to give an update on the situation relating to the sporting rights on Raasay.
To go back to the start, as the committee knows, a mistake was made earlier this year to assign the sporting rights on Raasay to the highest bidder without sufficient consideration of the wider implications for the community on the island. That could have been avoided had ministers been consulted prior to the decision to tender or to award the lease to a successful bidder.
The decision to relet the sporting rights on Raasay was driven by the expiry of the existing lease. Although, originally, sporting rights were leased to a private landowner, the lease was subsequently assigned to the Highlands and Islands Development Board in November 1981 for the remaining period of 31 years and then reassigned to the Raasay Crofters Association in 1995. Ultimately, it was due to expire in November 2012.
On 1 November 2011, anticipating the end of the original lease, the Scottish Government rural payments and inspections division wrote to the RCA giving it notice that the lease would come to an end.
The normal practice in inviting tenders for assets that are held by the Scottish ministers is that officials advertise, assess and award bids in line with value-for-money principles as laid out in the Scottish public finance manual. In line with our practice, the lease was advertised on the open market during the weeks commencing 19 and 26 November 2012, with advertisements being placed in the West Highland Free Press and the Shooting Times & Country Magazine.
A closing date for bids of 14 December 2012 was set, and five offers were submitted by the closing date. Unfortunately, the lowest offer was, as reported following the decision, from the RCA. Two of the offers that were received—bidding for a higher amount than the RCA—originated from the Isle of Skye. Civil servants accepted South Ayrshire Stalking’s offer on the basis that it was the highest offer for the sporting rights and in line with the Scottish public finance manual best-value principles but clearly without giving sufficient weight to the wider community benefits and without consultation with the Scottish ministers.
When, regrettably, the issue was first raised with me by the local MSP, Dave Thompson, and subsequently by regional MSPs and the local MP reflecting the concerns that the RCA had expressed, I took immediate action to help to resolve the situation. Initially, we explored the opportunity to modify the terms of the lease to maximise the community engagement in its operation to mitigate the loss of sporting rights to the RCA. When it became clear that that would be insufficient to address community concerns, discussions entered a new phase.
As the First Minister announced during First Minister’s questions on 28 February, having fully considered the impacts of the RCA losing the lease, we had successfully negotiated with South Ayrshire Stalking voluntary exit from the contract. The cost to the Scottish Government was £9,000, which covered costs incurred by South Ayrshire Stalking. I should stress that they were only part of those already incurred.
My thanks go to Chris Dalton and South Ayrshire Stalking for their understanding and agreement to withdraw from the contract. As I said at the time, from Mr Dalton’s perspective, he won the lease fairly and, therefore, acted very honourably by withdrawing from it when he realised the upset caused to the community of Raasay.
Additionally, and as a result of representations made, ministers will now be involved in a manner consistent with the Scottish public finance manual in any decision that would result in a local community failing to secure a lease of which it had been, until the time of renewal, the tenant.
I met the RCA and the community on Raasay on 1 March and we discussed the background to the original decision and possible approaches to addressing the problem. Given the need to demonstrate a justification for varying from normal best-value approaches, to make decisions about the future of the Raasay sporting rights and to allow the views of the community to be heard and considered in the making of those decisions, a consultation was launched on 24 April and ran until 7 June.
Three options were presented to the community. The first was a long-term lease of up to 175 years granted to a local community group, which could be the RCA or another community group that could also involve the RCA. The second option was the lease being put on the open market with the winning bidder needing to demonstrate optimal community benefit. The third option would have been a right to buy being exercised over the land, which would include rights over the lease.
A buyout of the sporting rights only, which some have proposed, is impossible under Scots law, so we could not consider that as an option on this occasion.
We received 74 responses to the consultation, or a response rate of 51 per cent. The responses showed that there were various and diverging views on the solution and the way forward, with no clear majority in favour of any of the three options, although the option to let the lease to the RCA was recognised as the community’s lead preference. The options of the lease being extended on long-term let and of a community buyout were supported by only a small number of respondents.
A key theme running through the consultation responses was a need for greater transparency and community benefit than had been delivered under the existing lease. To that end, I will ensure that community benefits are delivered to assist the community, which is fragile. Those benefits could include local employment, supply of venison butchered and packed on the island, greater promotion of tourism through the sporting rights, making better use of the fishing rights and greater community involvement and support of local businesses. I will also ensure proper transparency of the operation and finances of the sporting rights to ensure that the lease costs and community benefit are clear and sustainable.
Therefore, and on the basis of the views that were outlined in the consultation responses, I have decided that the lease should be offered to the RCA for five years. As the lease is being offered to the RCA without competition, we will be required to demonstrate value for money in line with the Scottish public finance manual. My aim is to demonstrate economy, efficiency and effectiveness, as well as value for money to the taxpayer, and that that will be provided through the community benefit that will be delivered as part of a condition of the lease to such a fragile economy. Subject to the conditions being met, there will be the option of an automatic renewal of five more years. We will, of course, negotiate the fine detail of the proposals with the RCA, and my officials will meet its members soon to discuss the way forward.
I am very aware that Raasay is a fragile island community and I fully recognise the importance of the sporting rights to the islanders. I aim to work closely with the RCA and the wider Raasay community to ensure that the best solution for everyone is achieved.
The proposed approach offers a good solution. It respects the wishes of the majority of the community respondents that the RCA should have the sporting rights and ensures that we have the opportunity to maximise the community benefit for the island and its economy.
I thank the minister for that statement. I am just sorry that the local member cannot be present, because he is unwell. Had he not been, I am sure that he would have been here to welcome the minister’s decision to put the community at the heart of matters.
Do you have a rough idea of the lease’s value to the community year on year? What is it worth in terms of income on the balance sheet?
I imagine that the community priced that into its original bid, based on the existing activity. As I said, it was the lowest of the five bids and it was some way off what South Ayrshire Stalking offered. We are talking about very small amounts, even in the case of South Ayrshire Stalking. The lease was not necessarily being run in such a way as to maximise the economic return to the island, so its value to the community and the Raasay Crofters Association was not necessarily high.
I invite Jonathan Pryce to address that issue.
Jonathan Pryce (Scottish Government)
I do not think that we have any more detailed information on the accounts of the Raasay Crofters Association so, as the minister said, taking account of what the association was prepared to offer was a fair way to make that assessment.
It is worth saying that one of the reasons why we are looking at changing the terms of the lease is to have greater transparency and a better understanding of how the lease can benefit the economy. That will give confidence to everyone who is involved that the opportunity that it presents to the island is being maximised.
You talk about making arrangements to do with economy, efficiency and effectiveness. Does that include the offer of training for local people?
Yes, indeed. With all sporting rights that are leased by the Scottish Government, there is a requirement that those who take out such leases move to train staff. In this case, it is proposed that sufficient time be allowed for members of the community to be trained to deer stalking certificate level 2, which is an advanced level qualification for deer management, to demonstrate good practice and to ensure that conservation interests are well looked after in the management of the island’s sporting rights.
This is a slight divergence, but sporting rights include shooting and fishing rights. Has there ever been any discussion about the development of fishing rights on the island?
You are right to raise that issue. It is one of the community benefit issues. We feel that there might be more scope for looking after the fishing rights on Raasay, and we will discuss with the community how best we can maximise the return to the island from sustainable management of the fishing rights.
Good morning, minister. I welcome the comments that you have made.
Out of curiosity, as I am not from the area—my region is quite a bit away from it—what were the highest and lowest bids, originally?
I do not know whether we have the figures to hand. The highest was South Ayrshire Stalking’s bid, which was £3,000, and the lowest was the RCA’s, which was about £1,000. Up to the point at which the lease ended, £650 per year in rent had been paid for the sporting rights. The RCA increased its offer to £1,000, but South Ayrshire Stalking’s bid was much higher.
Drew Sloan (Scottish Government)
Just for the record, the RCA’s bid was £1,150; I was rounding the figure.
Thanks for that.
I am surprised that only a five-year lease has been offered. I know from previous experience that companies have looked at giving local organisations longer leases in order to foment good will. You said that the lease could be extended automatically, but why did you decide on a period of just five years?
The indication that we received was that, at this stage, there is not a desire for a lease of longer than 10 years. We had discussed the potential of a lease of up to 175 years with the community, but there had not been strong support for that.
Given the particular concerns to ensure that transparency and community benefit had been demonstrated, we plan to have a regular meeting with the RCA to discuss what has happened in the previous year and update what has happened on community benefit management of the deer stalking and fishing rights and other issues to assure ourselves that the terms of the lease are being delivered.
That arrangement will provide an automatic break clause in case things are not working well, although we have no reason to believe that there will be a problem. The community on the island, through the RCA, has been managing the estate on a broadly satisfactory basis for some time. We fully expect that, with the training going to DSC level 2, the sporting rights will be managed in a sustainable way.
11:45
As I said, I do not expect any problems, but our arrangements will protect the public and community interest, given the concerns that were raised about ensuring that transparency and community benefit were demonstrated better than they had been in the past. I discussed the proposal with Anne Gillies today and explained to her that we do not expect any problems. However, there is an option for an automatic extension of the lease to 10 years, which we understand is the length that the RCA was looking for.
I realise that the decision in question was taken by an official, without your knowledge, and that some decisions in other places are delegated. I take it that decisions of that type are now not delegated and that they will automatically come in front of ministers on every occasion.
You are quite right. Having explored as far back as we can in terms of the knowledge of the people who work in the Scottish Government—that is about 11 years for senior managers and about 30 years for those on the administration side—we can find no example of such a matter going to a minister for a decision. It is worth putting on record that that was established practice under previous Administrations, which we carried forward.
We will ensure that in any circumstance in which a community is at risk of losing its sporting rights, ministers will be involved at some point in the process. We must do that in a way that is consistent with the Scottish public finance manual, which means that I will probably not take the actual decision. However, I can be involved in steering the criteria on which the tender is offered, if there is a tender.
Our intention regarding how to proceed in the future will obviously apply to the situation of the Raasay crofters. Assuming that they take up our lease offer, at the end of the 10 years a notice to quit will be served; that would be normal for any lease that the Government offered. We will then enter into discussions with the crofters, as we would with any crofters or community in any other location, on whether they want to continue the lease. We will also discuss what criteria we might require for any subsequent contract.
We are therefore changing the procedures. We recognise that there was an issue of insufficient consideration being given to the community and the wider community interests. We have rectified that and in future we will involve Scottish ministers in a way that is consistent with the requirements of the public finance manual. We will ensure that there is probity from my and my successors’ point of view and that we will have an input into any similar decisions.
I think that the Raasay Crofters Association will be very happy with your intervention. Your positive conversations with South Ayrshire Stalking got us to where we are now. My question is on similar lines to that of Richard Lyle. You said that officials made decisions without reference to ministers. Of course, being the captain of the ship, you are responsible for the crew. I think that it is even against the code of conduct for ministers to blame officials, so there is a very thin line.
To what other areas should we extend the due diligence process that you have described? We want to ensure that decisions on matters that are ultimately ministers’ responsibility—albeit that the decisions are made without their knowledge, as you have admitted happened in this case—are secure and that we have no repeat in other situations of what happened in this sporting rights situation, with decisions being made without ministers’ knowledge on matters within their governance.
On your first point, we must avoid finger-pointing and blaming. I am keen not to do that anyway, and you are quite right to say that it is not appropriate for me to do that. We want to learn from what happened and ensure that, as far as we can, we can prevent a similar situation from arising again. We targeted an approach to procedures for similar situations that might arise within this portfolio and we have done everything that we can to address the procedures to ensure that what happened does not happen again.
It is a fair question. What else do we do? My RPID colleagues Jonathan Pryce and Drew Sloan, who are here with me today, have been looking at the implications. In forming a solution for the problem that has arisen on Raasay, we have to take account of the implications for ending other tenancies and lets elsewhere within Scottish Government estates. We have to do something that is consistent with the public finance manual, and I am sure that members would expect nothing less from me as a minister.
The member makes a legitimate point; I do not know, but perhaps we could come back to the committee about what we are doing more widely. Jonathan Pryce or Drew Sloan might want to comment about the implications that there might be for other parts of the RPID estate and portfolio.
We have been careful to ensure that we get the message out to staff within the directorate, including all the area office staff who work in agricultural areas, that community interests are very much at the top of the ministers’ agenda. Members can be pretty well assured that issues of this nature will be escalated and the ministers will be involved, even if it is just to get information and ensure that they are aware in the future.
That is useful; thank you.
I want to ask about the guidance that officials or ministers use when they are taking decisions. I understand that there is an estate charter that dates back to 1999, which is quite a long time ago. I do not know how such things are kept up to date or kept in people’s minds, or whether there is a checklist of documents that are referred to when decisions are being taken, but that estate charter has a commitment to
“take account of local community perspective considering offers for sporting rights on the Scottish ministers’ estates.”
That was interesting to me. I just wanted to refer the relevant people to that charter as a point of information. Perhaps there are some words or principles in there that can be brought to bear on future decisions.
That is certainly a fair point. The seventh commitment in the estate charter makes it clear that community interests should be taken into account in the consideration of sporting rights. I hope that what we have done in this particular case will mean that when sporting rights come up and a community interest is involved, that can be addressed formally.
It is standard practice for the principles that lie behind the estate charter to be taken into account in managing the Scottish ministers’ estate, alongside other Scottish Government policies and the requirements of the Scottish public finance manual. In the Raasay case, those principles do not seem to have had sufficient weight in the ultimate decision. With the benefit of hindsight, we have recognised that the decision was not correct and we have tried to put it right.
Good morning, minister. The estate charter and its 10 points have existed since 1999, which is quite a long time. How does it relate to the public finance manual and your ministerial responsibilities for those estates that lie within your remit? There is an expectation in the public finance manual that we should get best value, but I understand that best value also includes the dreaded sustainable development. How do the two relate?
There are now protocols that have come from the lessons learned—I cannot formally thank you in any way for that, but we are moving forward. How do they fit together with your responsibilities?
Claudia Beamish is right. There is an issue about what the public finance manual states, which, as she identified, is about best value and sustainable development. If ministers are involved in, or are issuing guidance for, similar situations, we can get the two things to interact by setting the criteria under which the tender is issued to make it explicit that all such bids have to demonstrate community benefit. Best value will then be assessed on the basis of the tender criteria that have been established. Best-value principles will still apply, but the criteria will have been established prior to the tendering exercise. Everyone will be treated fairly and will have an opportunity to bid in the expectation that they will be asked to answer to what community benefit they will deliver in their tender. There is a bit of a gap between the two, and that is probably the way in which we can bridge it.
As I have outlined, in managing the estates we take into account the estate charter. In this example, though, there was a bit of a disconnect in respect of the ultimate result. We are trying to ensure that procedures address that. In future, in a manner consistent with the public finance manual, I feel that I—or my successors—could be involved in setting the tender criteria where we feel that it is important to demonstrate community benefit and to have a level playing field.
Might it be helpful at this stage if clear guidance was publicly available on how the charter works with the public finance manual?
We have explained to the staff involved that there is scope for flexibility in the public finance manual. There is room for adapting tender criteria as long as, from that point on, everyone has an equal chance in the tender exercise, we demonstrate best value and the competitive tendering process is fair and open, based on the criteria that have been set. I am willing to look at what we can do to make the process more explicit so that people understand it. On a tender by tender basis, that would be the case. I do not know whether Jonathan Pryce has any advice about what we can do to have general, overarching guidance on that.
I was going to draw attention to the fact that the definition of best value in the public finance manual speaks about maintaining an appropriate balance between quality and cost. Essentially, I would see the estate charter as being the definition of quality in this kind of transaction. That was what was not given sufficient credence at the time of this decision. It is a relatively simple thing to make those dots join up.
How many estates are there in your remit, minister?
It is easier to say how many there are that are exactly the same as this one, or similar to it—
I just want to get a feel for what we are talking about.
Sure. The Scottish Government currently lets 30 sporting leases, with leases generally running for about 10 years—that is on a similar basis to the one on Raasay. Raasay is a relatively unusual instance in that the lease had been held by the local crofting association for a very long time. Four similar sporting leases are due for renewal in the next 12 months and eight in total are due for renewal in the next two years. We have already taken steps to give an extension in the case of the Newton shootings in the Western Isles while we wait to see what lessons might be learned from the consultation. We will take forward the principles that we have established in dealing with Raasay in our subsequent handling of Newton.
Thank you. Just for information, I see that it was at Newton that the charter was originally launched.
Indeed.
The discussion about the charter is interesting. In my experience on the Environment and Rural Development Committee between 2003 and 2007, we heard nothing about the charter. Its application has only now emerged from the cupboard. Since the charter was launched, there have been a lot of developments in land reform and in the communities aspect of Government policy. Is there some means of reviewing what the estate charter says and considering how it could be worded in a fashion that fits the relationship with the public finance manual and how this Government might respond to that in future?
12:00
I have to be honest and say that we have neither looked at nor planned for such a proposal. However, if you want us to address the matter, I am certainly happy to come back to the committee with how we might do that.
As I have explained, the estate charter is still being applied—albeit in this case not with the outcome that the community or indeed I would have wanted—and is still being used to inform our estates management. It might therefore be appropriate to refresh it and look at how it applies currently.
I think that that would be appropriate, given that the charter has been raised again after a long period in which it has not been discussed—or has even, one might say, lain dormant.
It is worth stating for the record that the Scottish Government very much believes in empowering communities and, indeed, the current land reform legislation seeks to promote greater community ownership. As a result, the suggestion fits with our aspiration to take community interests into account.
A question has just occurred to me as we have been talking. Is the Raasay Crofters Association made up purely of Raasay crofters or are other residents on the island members of it?
I have not looked in detail at the association’s membership. Some demonstration of a linkage to crofting is implied in the name, but I am happy to look at that issue. The RCA’s composition has not been formally raised in the consultation, but I can say that the responses that we received indicated a desire for as much transparency and openness as possible about the operation and management of the sporting rights and no desire to interfere with the RCA’s operation and on-going activities.
I was not suggesting for one minute that we should interfere in the association’s activities, but it would be interesting to find out who the members are. Perhaps you can let us know in writing. After all, the future of what you have described as a fragile community will depend on bringing together as many people as possible who can help to build the economy there.
I suppose that a dimension of the transparency that we are looking for is to allow people to understand who benefits from the sporting rights and how much the wider benefit goes to the community. We can address that matter in the lease.
You have said that several other leases are going to come up for renewal in the next couple of years. Will you be carrying out any local consultation before you or your officials make a decision on any of those leases and will you keep the local constituency and regional MSPs in the loop to ensure that there are no upsets in the future?
The suggestion of keeping members informed is a constructive and helpful one. In this case, of course, it was not just local members but me who was caught out by the news of what happened, and there should be a procedure for ensuring that members are aware of and can engage in the situation. We must ensure that the community engages with us at appropriate times so that, if a notice to quit is served, we can enlist the essential support of Scottish Parliament members, MPs and others to ensure that the community responds either positively or negatively on whether they want to continue with the sporting rights or whether they are interested in changing the terms of the lease. Such responses can then be taken into account in framing the subsequent discussions.
I am not being critical in any way, but it is worth pointing out as a matter of fact that, after the notice to quit was served in November 2011—I was not minister at the time, but this is my understanding—there was very little contact from the RCA before the lease came on to the market. In fact, the only contact that we had was a request for an indication of the value, and clearly our officials could not give out that information as it would have interfered with the tendering process. Had there been more contact and had we been made aware of the strength of feeling in the association and the wider community, alarm bells might have started ringing and the situation might have been brought to a happier ending.
You are quite right, Mr Lyle. Engaging with local members on the ground who know the circumstances might assist us in addressing these problems in future.
As there are no other questions, I thank the minister and his team for that forthright discussion and the welcome news about the lease for the Raasay Crofters Association. No doubt we will hear more about the subject in due course, but we hope that the news will be happy rather than about a crisis. Again, I thank the minister for bringing the matter and the various details to our attention.
At our next meeting, there will be a round-table evidence session on climate change behaviour change and consideration of an approach paper on climate change adaptation. That should show the breadth of what we do on this committee.
Meeting closed at 12:05.