Official Report 481KB pdf
I invite members’ comments on the correspondence that has been received from the Scottish Government on amendments to the Land Reform (Scotland) Bill.
The question is whether we should write to the minister. In my view, we should, to inform him of our views.
The committee still has concerns after stage 2 about the compatibility of the bill with the European convention on human rights. If anything, the amendments that were made at stage 2 have made that even more problematic. I understand that there are also other concerns to which members may refer.
We are not a policy committee, but my principal concern is that we are in great danger of making very bad law. I do not wish to see the Parliament brought into disrepute, and have often said the bill has very real potential to do that. Many parts of the bill are likely to provoke ECHR challenges.
The letter came from Aileen McLeod, so John Scott’s reference to “him” should be taken as being to “her”. Richard Lochhead is the cabinet secretary, but it is Aileen McLeod who is dealing with the issue.
I take an entirely different view from John Scott. We have had no advice that there are any ECHR issues in respect of what is before us. If there were, we would deal with them. Any secondary legislation carries the risk that ECHR rights will be breached. The appropriate time to deal with that risk is when the secondary legislation is introduced. There is nothing special about what is before us in that regard.
However, there is an important issue on the proposals that the Government continues to work up on how we put in the public domain information about ownership of Scotland’s land. It is very important in policy terms that the Government gets that right.
In relation to the committee’s narrower interest in the construction of good law, this will clearly be a significant provision. I want to be very clear that when in due course the secondary legislation is produced that will give effect to a register of ownership, the Government will ensure that there is adequate parliamentary opportunity to consider the policy. It is not sufficient for the bill simply to be amended at stage 3 to place duties on the Government, important as that will undoubtedly be.
It is important that the bill is also constructed to explain how enhanced affirmative procedure will operate to provide, at the appropriate point before the policy is published as a draft instrument and published in the Business Bulletin, that the Parliament has the opportunity to consider it. The committee should consider writing to the minister in those terms, to ensure that she is quite clear in her mind what it is that we are after.
I draw Stewart Stevenson’s attention to the legal advice that we have been given because it is quite clear that despite the stage 2 amendments the bill remains largely as it was. Our legal advice points us to very definite European convention on human rights article 8 concerns, for the avoidance of doubt or misunderstanding.
There is clearly a huge appetite for major reform of land legislation in Scotland because it has been unsatisfactory for a long time. Almost everybody supports the idea that the bill should do that. The committee’s concerns about the original section 35, the amendment and any amendments that might be expected at stage 3 are to do with lack of detail in the bill. John Scott has his opinion about ECHR, but the reality is that we do not know about many such areas because the bill does not have the detail. We need to ask the Government for as much detail as possible in the bill.
I agree with John Scott that we should write to the minister. It seems as though the policy is still in development, and there is a way to go before stage 3. Although I agree that there is support for the principles, we need to know the details, which is why we should write to the minister now.
I do not want to disagree with you but, once we see the stage 3 amendment, the committee will not have time to do anything terribly constructive. That is why I am looking for the committee’s guidance on how I should write on its behalf because, to be frank, that is all we can do to ensure that we lay out our concerns.
As always, I am conscious that ministers and their advisers will be listening to us as we speak, and they will certainly read the Official Report, so they will get the basic message. I am looking for guidance about what I might say on the basis that concern is one thing but positive suggestion is another.
From what our lawyers have advised us, I have extracted the fact that there is, at the very least, a model within the Convention Rights (Compliance) (Scotland) Act 2001, which we have met relatively recently, for drawing up regulations in such a way as they must be subject to scrutiny and consultation. That consultation has to be looked at and discussed before regulations can be laid and approved. We could point the Government towards that model as an acceptable route.
Other than making an effort to be helpful, it is perhaps for the committee merely to define the problem. As it is the Government that has proposed the legislation, it is really up to it to bring forward the solution, which is, self-evidently, that the policy should be researched and placed in the bill. That would thereafter afford us and others the opportunity to scrutinise the policy. That is for the Government to do; it is not for us to suggest how it achieves that.
In an ideal world, we could sit back and wait for the Government to say whatever it is going to say. However, the reality is that we are now extremely tight for time in the parliamentary session so we need to cut some corners. One corner can be cut by saying in the convener’s letter to the minister that, if things go ahead as we anticipate they will, there should be an enhanced form of affirmative procedure. We should also give the details that the convener mentioned about consultation and so on.
There are clearly two parts to the committee’s view. John Scott has made the point that he does not want anything other than that the provision be on the face of the bill. I am sure that we can understand that view.
There is also the practical view that we are where we are and, if the provision cannot be in the bill, it should be done through regulations, which would be so close to being the way in which we generate bills afterwards that it will work. I suspect that I need to articulate both those points, but I am open to suggestions.
11:30
If I have read correctly what colleagues have said, we are of one view in that there should, by whatever means this bit of policy development is completed and put into law, be adequate parliamentary time for it to be properly scrutinised, because it is significant policy. If the Government does that by way of amendment at stage 3, so be it, but there must still be adequate parliamentary time to deal with it. If the Government makes the changes through secondary legislation, as it appears determined to do, the same principle will apply. That is our overriding point.
John Scott is perfectly reasonably articulating that his preference—the committee has previously said this in other domains—is for the changes to be made in primary legislation. It is perfectly reasonable for us once again to say that to the Government, while recognising that the reality of our being in the fifth-last week of this session of Parliament is that the proposal is unlikely to be introduced early enough and that the policy is not likely to be developed enough for us and other committees to look at it in sufficient detail. However, that is a matter for the Government, not for us.
Indeed. It is not a matter for us—it is not our problem that the Government finds itself in this extremely awkward position of making poor legislation and, as John Mason helpfully pointed out, seeking to cut corners because of the timescales that we face. The Government is in a dreadful position. This is, essentially, the final month of a five-year term. The issue is about when the Government has chosen to introduce the legislation in what is essentially an undeveloped form. That is a matter for it. It is for this committee to ensure that processes are adhered to and that corners are not cut. I am sorry to be so uncompromising, but if that is a problem, it is a problem of the Government’s own making.
We could go on and on about this. As in a range of life’s issues, when a problem is of somebody else’s making, we accept that. At the same time, we must find a practical solution. The proposal that we write to the Government and specify that an enhanced affirmative procedure would be useful is the correct one.
My concern is that the policy has not been worked out. There is a lack of scrutiny and consideration. If the proposal is that the policy be developed under regulation, I am concerned about that.
I have heard what everybody has said and members have heard what I have said. Clearly, I need to write to the Government, because that is all that we can do in the timetable to which we are working. I am happy to reflect everything that has been said—that is my duty.
I am certain that you will do that wonderfully well, convener.
All that I will say is that I do not think that all the various points that have been made, including mine, are inconsistent with one another, although they definitely do not start from the same place. In the letter to the Government we need to reflect that we would not want to have been in this position in the first place. Members have articulated clearly why that should not have been necessary. However, while recognising that we are in this position, we must ensure that whatever is introduced—and retained—in the bill fits the best possible processes for providing good parliamentary scrutiny and proper policy development on a proper timetable. That will not be in this session, because we are talking about regulations that will be dealt with in the next session, if regulations are where we go.
Are colleagues comfortable with that approach? I can see it being a fairly long letter. We will try to reflect everything that has been said. Does anybody have anything to add?
Will you circulate the letter before you send it?
I am happy, in principle, to do so, given the contentious nature of the matter. At the end of the day, I will have to sign off my letter, but I am happy to circulate the first draft.
I would be grateful if you would circulate the letter. It is a vital issue. In the absence of a revising chamber, this committee’s role is to be one of the guardians of the rules and processes of our Parliament. Therefore, what I have said is absolutely fundamental to the integrity of this committee.
If members are comfortable, I will leave that item there.
Meeting closed at 11:35.