Official Report 546KB pdf
Good morning, everybody, and welcome to the eighth meeting in 2015 of the Rural Affairs, Climate Change and Environment Committee. I remind everyone to switch off mobile phones as they interfere with the sound system. Committee members will, of course, be able to consult tablets, as will witnesses, in relation to the business of the meeting. We have apologies from Claudia Beamish.
Agenda item 1 is evidence on stage 2 amendments to the Community Empowerment (Scotland) Bill on the crofting community right to buy and the draft regulations on abandoned and neglected land. I welcome Dr Aileen McLeod, the Minister for Environment, Climate Change and Land Reform, and her supporting Scottish Government officials: Stephen Pathirana, deputy director, land and tenancy reform; and Dave Thomson from the land reform and tenancy unit.
Welcome, minister. Do you want to make a short introductory statement?
Yes, I do, convener, if that is okay. I was delighted to be invited to give evidence to the Rural Affairs, Climate Change and Environment Committee on my proposed stage 2 amendments to the Community Empowerment (Scotland) Bill, which seek to amend the crofting community right to buy.
I thank the convener and members of the RACCE Committee for agreeing to take on this not inconsiderable part of the bill on behalf of the Local Government and Regeneration Committee. I also thank all the stakeholders who responded to the call for evidence on the proposed amendments and attended the meetings that my officials held in Edinburgh, Inverness, the Isle of Harris and the Kyle of Lochalsh in December. The evidence from those who participated has been instrumental in shaping the amendments.
I strongly believe that the crofting community right to buy is a tool that can be of great benefit to crofting communities, and it is therefore vital that the amendments, which introduce much-needed flexibility and simplification, are introduced at the earliest opportunity.
Only two crofting community bodies have made use of the crofting community right to buy legislation in more than 10 years. However, we heard at last week’s stakeholder evidence session that even the existence of the legislation has helped to change the culture by encouraging crofting communities to buy their croft land. The framework of the legislation acts as a useful backstop to encourage the parties to get round the table and open negotiations. Indeed, earlier this month, over 80 per cent of the community of Barvas on the Isle of Lewis voted in favour of a community buyout of the Barvas estate, which contains about 300 crofts.
That is why I strongly believe in the principles of the crofting community right to buy, which is designed to empower our crofting communities or to work as a backstop to allow them to negotiate a community acquisition outwith the framework of the Land Reform (Scotland) Act 2003.
However, I recognise that there are elements of the legislation that could cause great difficulties for communities wishing to exercise their right to buy, not least the mapping requirements that communities must fulfil, which stakeholders have highlighted as being particularly onerous. I therefore want to make the legislation more flexible when necessary and more straightforward for community use. I have listened to what stakeholders have told me, and I am introducing a number of measures to address the flaws that have discouraged the use of the crofting community right to buy, including the mapping requirements and how the legislation is used to define a crofting community.
I am happy to answer questions that the committee may wish to ask in response to the amendments.
Thank you. I assure you that we have quite a number of questions. To start with, the explanatory notes on the amendments state that they would make the crofting community right to buy
“easier for crofting communities to use, while at the same time continuing to strike a fair balance between the rights of landowners and crofting communities.”
Can you expand on that statement and indicate how many crofting communities you think might take advantage of the simplified process?
The proposed changes will encourage more communities to access their right to buy by simplifying some parts of the 2003 act and opening up more options for communities and others. For example, we will simplify the mapping requirements, which have been a key area of concern for stakeholders. We will also increase the options for communities by expanding the types of organisation that community bodies can use under the act, which will include Scottish charitable incorporated organisations and community benefit companies. In addition, we will remove some of the burdens on communities by, for example, no longer requiring auditing of accounts and allowing balloting expenses to be claimed under certain circumstances—at the moment, communities must fund their ballot themselves. I believe that the amendments as a whole will encourage communities to think about what they can do to take responsibility for their own futures.
As you will appreciate, it is difficult to estimate the number of communities that will take up the opportunity. However, as I said, even with the 2003 act as it stands, many communities use its existence to encourage dialogue with owners, which leads to purchases outwith the act. I hope that the amendments will encourage even more communities to follow that example.
I understand the context, which is that the amendments will push out the envelope so that more people can consider the crofting community right to buy. However, we need to define what a crofting community is, so Alex Fergusson has a question about that.
Good morning, minister. Amendment 1 would widen the definition of crofting community in section 71 of the 2003 act. However, as we learned last week in particular, amending the definition of crofting community in the way that is proposed would mean that owner-occupier crofters who are registered on Registers of Scotland’s crofting register would be included but those on the Crofting Commission’s register of crofts would not be.
To a complete outsider like me, that seems a very strange omission. Although we have been told that it is not easy to capture in legislative terms what a crofting community is, oral evidence that we took at last week’s meeting suggested that the proposed provision would produce a distinction between the two registers’ definitions of crofter. Why do you think that it is appropriate to go down that route?
The proposed amendments would amend the definition of crofting community in section 71(5) of the 2003 act to address the issue of crofters being excluded by the existing legislation. Alex Fergusson is quite right to say that the proposed amendment would include in the definition of crofting community the owner-occupier crofters who are registered on Registers of Scotland’s crofting register but not those on the Crofting Commission’s register of crofts at this point in time.
The reason for that is that, although the Crofting Commission collects information on crofters, as Susan Walker from the Crofting Commission said at last week’s committee meeting, the commission has no duty to keep owner-occupier details. The Crofters (Scotland) Act 1993 sets out the information that must be on the register of crofts. At the moment, that does not include owner-occupier details.
The Scottish Government intends to work with the Crofting Commission, and we will consider introducing legislative changes to include owner-occupiers within the information that must be included. However, until that process has been completed, it is not possible, under the bill, to rely on the register of crofts for the owner-occupier information. That is why it is proposed that the Scottish ministers take a regulation-making power to expand the definition of crofting community at a later date. Such an expansion could include owner-occupier crofters who are registered in the register of crofts. At the moment, that needs to be carried out in a two-stage process, using the ministerial power to add the owner-occupier crofters who are recorded in the register of crofts at a later date, when a legal matter is addressed by the Crofting Commission.
Thank you for that. I think that you have answered the second part of my question.
Is the purpose of the further powers that you propose to take to expand the definition of crofting to include later data, when it is more guaranteed to be correct?
Yes.
Thank you for answering that point.
Another issue that was raised with us by Susan Walker of the Crofting Commission was that the proposals appear to have removed the residency requirement. She raised the possibility that absentee crofters could influence the outcome of a community ballot, for instance. What are your thoughts on that?
On the issue of residency, we have indeed removed the requirement that tenants must be resident within 16km of the crofting community. We have replaced that with a requirement that they be either tenants registered in the crofting register or the register of crofts, or owner-occupiers registered in the crofting register. There have been some issues with the distance and just where it is measured from—from the middle of a crofting community or from the edge, for instance. That is why we sought to simplify matters, in keeping with the rest of the changes.
As you rightly point out, Mr Fergusson, there are some concerns that the removal of the distance element could lead to an undue influence being exerted by absentee crofters, who would be defined as being part of the crofting community for the purposes of the eventual act.
Under the ballot rules, there are two elements to demonstrating that the community supports the proposals of the community body. First, the majority of those voting are in favour. They must be people of the crofting community. Secondly, the majority of tenants of crofts within the land that the crofting community has applied to buy are in favour. To the best of our knowledge, there are no crofting communities where the majority of the tenant crofters are absentees, which is the only situation where any undue influence could be asserted.
I hope that I understand that.
There is a point that I wish to follow up. I suggested last week that, because we are moving to a map-based register, the Crofting Commission register as it is at the moment—that is, just a list—will eventually become redundant. We are in a transition period. Derek Flyn said that he looked forward to that, and there was a lot of laughter around the room.
The problem is about knowing how accurate the lists are that are in the Crofting Commission’s register. Could you reassure us that you are happy that those lists are competent and up to date?
I am happy to address that point, but I will hand over to Dave Thomson to cover some of the detail.
As you have said, convener, we are in a transition period. The register of crofts is the existing one, for which the Crofting Commission collects information. The crofting register is the old one. The register of crofts is the new one. As we said last week, it could take up to 80 years to populate it fully.
We intend to include information from both the registers. We want to ensure that the Crofting Commission records the information on both the registers as a duty or obligation, rather than just to make the registers as complete as they would like. That is where the regulation-making power comes in. Once the Crofting Commission is collecting all the data that we would like, we can ensure that those people are all included in the definition of a community.
09:45
There is nothing like having an 80-year legacy ahead of you.
That is job security.
Yes.
I want to come back on that. Again, I stress that I am a total outsider to crofting law and it is a complete mystery to me—every time I look at it, I am more confused. However, what Mr Thomson has just said suggests that it makes all the more sense to use both registers. As far as I can see, where somebody is registered in the Crofting Commission’s register of crofts in a way that is safe and secure and we know that it is the correct information, the amendment will not take that ownership into account, and it seems strange not to do so. Perhaps I am being too simplistic.
No, you are correct. The difference is to do with the duty that the Crofting Commission has to collect the details of owner-occupiers. At present, the commission collects those details, but it is not under a duty to do so. Therefore, in theory, it could at any point stop doing so. If the bill relies on that as a measure of who is in a crofting community, we could be left in a situation in which we are asking for information that is not being collected any more. We want to impose a duty on the Crofting Commission to collect that information and then use the regulation-making power to include that as part of the definition.
That helps.
I am glad that we have got that cleared up.
That is the work that we are keen to take forward with the Crofting Commission.
We will move on to croft land mapping.
Good morning, minister. In your opening remarks you briefly acknowledged the issue of croft land mapping requirements. The amendment that has been lodged with regard to croft land mapping will repeal some existing mapping requirements, such as those relating to sewers, pipes, lines and watercourses. The oral evidence that we heard last week broadly supported the amendment. Derek Flyn stated:
“The transfer of ownership of a Highland crofting estate is a massive problem because it tends to be a jigsaw puzzle with lots of pieces removed.”—[Official Report, Rural Affairs, Climate Change and Environment Committee, 18 February 2015; c 34.]
Peter Peacock of Community Land Scotland also warmly welcomed the proposed changes. However, as we might expect, Scottish Land & Estates said in written evidence that the change will affect
“inter alia valuations and details of ownership.”
Are valuations and details of ownership likely to be affected by the amendment? Will you clarify how a fair balance between the rights of the landowner and those of crofting communities will be ensured?
To start with your last question, we are maintaining the balance that is there. Obviously, we are improving the process and providing greater flexibility for community bodies. We are trying to streamline and simplify the crofting community right to buy process in line with feedback that we have received from stakeholders. Landowners will still have the opportunity to put their views across and they will still be entitled to compensation. The factors that protect landowners’ interests will still be there.
Some feel that the current mapping requirements are not particularly onerous, as they refer to the fact that the information is that which is
“known to the applicant body or the existence of which it is, on reasonably diligent inquiry, capable of ascertaining”.
Such information is easier to obtain for small areas of land, where there is less chance of making technical errors in producing maps, but that is certainly thought to be particularly difficult for large crofting estates. The complexity of the maps that are required when submitting a first application to Registers of Scotland is often cited as a reason for community bodies not engaging with the process in the first place. We are keen to remove the complexity of having to include the details of
“sewers, pipes, lines, watercourses or other conduits and fences, dykes, ditches or other boundaries”.
However, the maps provided will still have to be sufficiently detailed to allow checks to be made against the ownership of the land in question and, later on, to allow the land to be valued, should the application be approved.
I think that that covers my question. I should reiterate the point that the majority of those who have contributed evidence have broadly welcomed the amendments.
We move on to questions about identification of owners, tenants and certain creditors.
Although Scottish Land & Estates is broadly happy with these amendments, everyone else is somewhat unhappy with them, including in particular experts in crofting law.
At the beginning of the meeting, you correctly pointed out that the bill’s purpose is not only to empower communities but to remove barriers to the transfer of assets that have beleaguered crofting for a long time now. However, I put it to you that the amendments contain quite a considerable barrier. The obvious change might have been to put the burden on the owner, but as Derek Flyn has rightly pointed out, crofting law essentially depends on the owner being expected to do virtually nothing and the tenant being expected to do virtually everything, and if you put the burden on owners, they might not respond to it.
Have you considered simplifying things further by, for example, requiring the crofting community body to use the best of its endeavours to find out the information, or ensuring that the provision relates only to material that is publicly available? Sometimes there are difficulties with estate ownership in that the beneficial owner of the estate resides a very long way away and they might not be accessible to a community body that is trying to find out about them.
It is important to identify the owner and creditor. After all, we are talking about the purchase of land, and the community needs to purchase it from someone. As Mr Russell quite rightly pointed out, information is readily available from public sources, but in situations in which the owner cannot be identified, the community can refer the land to what is known as the Queen’s and Lord Treasurer’s Remembrancer for consideration and the community body can enter into discussions about purchasing the land from it. I also point out that the community body need only identify the owners of sporting interests and their tenants if they are purchasing the tenancies and sporting rights separately from the land.
Nevertheless, it is important to remember that, as this is a compulsory purchase of land, an owner must be identified, and that kind of information is readily available from public sources. As I said, though, where an owner cannot be identified, the community can refer the land to the QLTR.
I want to press you on that point. The issue is not so much that an owner cannot be identified but that it can be pretty difficult to identify the actual ownership of, say, a Highland estate. The chain of ownership can be very complex, and it would help if you could insert some qualification—either into the bill or in guidance—to indicate that, as you have just indicated, best endeavour is expected to apply and that publicly available information is being sought. On the face of it, it seems a pretty tall order for a community body to find out about not only ownership but creditors of one sort or another if the chain of ownership happens to end up on an obscure island somewhere in the Caribbean or, indeed, in a Swiss bank vault.
Do you want to take that, Dave?
Finding an owner can sometimes be a tortuous process, but we need to keep in mind that, because we are talking about compulsory purchase, an owner must be found if the land is to be purchased. In some cases, that will not be easy, but the bottom line is that it still has to be done.
On the point about strengthening the guidance, I note that, as far as locating sources of such information is concerned, the right-to-buy team is always there to help the community through the process at any point. The land reform review group recommended the establishment of a community land agency that could assist with that sort of thing as well, and that might happen. That aspect is still up for discussion and out for consultation.
The issue applies not only to ownership but to standard securities over the land. If I am reading this correctly, you are saying that guidance could be issued that could deal with the issue so that the burden of the situation was understood more accurately by the crofting community and that, therefore, concepts such as “publicly available” or “best endeavours” could be considered.
To be honest, I am not sure how far we can go in terms of defining reasonable endeavours.
The term is “best endeavours”. We were quite firmly warned off “reasonable endeavours” by Derek Flyn and, I think, the Law Society.
To be clear, we were warned off “best endeavours” and it was suggested that we use “reasonable endeavours”. Duncan Burd suggested that we might also want to include the words
“as may be disclosed in either the register of sasines or the land register of Scotland”.—[Official Report, Rural Affairs, Climate Change and Environment Committee, 18 February 2015; c 37.]
That is okay, but the point is to lock down who should be within the public knowledge and to avoid the fraudsters. That means that “reasonable” would probably fit the bill. Is that going to be reflected in the bill or the regulations?
We are happy to take that away and consider it.
That would be helpful, because it would be an area for possible further amendment.
The only other point that I would make is that Registers of Scotland has a commitment to get all the land on to the register within the next 10 years and we are looking at a full modernisation of the land register. That is not happening now, but it will happen in the long term.
We are happy to have a look at the point that has been raised and come back to the committee.
Thank you—that would be helpful.
Graeme Dey has a question about ballot procedures.
The proposed amendments would get us into a situation in which crofting community bodies could, in certain circumstances, seek reimbursement of the costs that are associated with conducting the ballot, but no such option is made available to a community body under part 2 of the 2003 act. Can you outline why we have that differential treatment?
In a part 2 application, where the community body registers a pre-emption to buy, it has to demonstrate community support for the group’s plans by other means, such as a petition. However, when it comes to purchasing the land, a ballot must be held to confirm that the community wishes to go ahead with the purchase. As the crofting community right to buy involves a compulsory purchase, it goes straight into the purchasing stage of the process. It is therefore important that community support for the purchase is demonstrated. The requirements are the same as far as the ballot is concerned; it is just that there is no pre-emptive element or associated petition to demonstrate support.
The main difference is around the funding for the ballot. As part of the changes to the community right to buy, we are proposing that the running of the ballot and the cost of that is met by the Scottish ministers. With regard to the crofting community right to buy, we are proposing that the community should run and fund the ballot in the first instance but that, in certain circumstances, the community should be able to apply to the Scottish ministers for the costs to be refunded. The main reason for that is timing. In the part 2 process, community support has already been demonstrated as part of the application process before the ballot stage is reached, which means that the Scottish Government has already assessed the suitability of the community body’s application.
I think that that clears it up.
Dave Thompson has a question about the Land Court.
10:00
This is a relatively minor point that concerns an issue that was raised last week by the Law Commission. It is about the people who have a right to refer a question to the Land Court. The proposed amendment from the Scottish Government extends that. The Law Commission said—
It was the Law Society of Scotland.
Sorry, convener. The Law Society said that creditors should also have the right to refer. In a submission, a member of Community Land Scotland made the following point:
“Creditors with a standard security and right to sell the land are irrelevant in a Part 3 situation, because land in crofting tenure is near valueless”.
However, no other witness seemed to be particularly exercised by that. Creditors are included in section 73 of the 2003 act, but they are not included in section 81. Is there any particular reason for that? Is there any merit in what the Law Society suggests?
Section 81(1)(c) of the 2003 act refers to
“any person who has any interest in the land … which is legally enforceable”,
which would include creditors.
So that is the answer. They are included in that broader part of the legislation.
Yes.
That is fine. Thank you.
We move on to the outcome of an appeal to the Scottish Land Court.
Good morning to you, minister, and your officials. The 2003 act allows the Land Court four weeks from a hearing date to give reasons regarding its decision on an evaluation appeal. The amendments to section 92 of the act would make that eight weeks and would allow the Land Court to report on why it was unable to achieve the eight-week target.
What is the rationale for saying that it is beneficial to double the time that the Land Court has and, therefore, the time that people have to wait? Surely, if the court is given double the time, it will take it.
One of the amendments that we propose allows for cross-representations. At the moment, either party is entitled to submit representations to the valuer, and they must be taken into account. It is felt that, to ensure that all relevant information is taken into account, where one party has submitted representations, the other party should be entitled to submit cross-representations. We do not wish to extend the process unduly as a result, so we have imposed a short, two-week period—that is the extension from six to eight weeks—for the parties to consider the initial representations and then submit cross-representations should they wish to do so.
The Land Court requested that the four-week time limit be extended because it can often cause scheduling issues, particularly with complex cases, and it was felt that it was unlikely that a case that had been heard over a number of weeks could be written up in four. However, we also realise that community bodies and owners need clarity about when they might expect a decision. Therefore, although the time limit has been extended and the court has the ability to request that it be extended further, it must give a definite date by which a written decision will be provided.
What sanctions are available if the Land Court does not achieve the eight-week target? How will you ensure that it reports within that time?
Although there are no powers to impose sanctions should the court not adhere to the timescales, it is felt that it is still important to specify them to give all parties a degree of certainty about when they can reasonably expect a decision. It is not expected that the court will miss those deadlines except in extenuating circumstances.
So there are no sanctions if the court does not meet the deadline.
That is correct.
Do you have any figures for how many times you anticipate the Land Court would miss the target?
I do not have that information with me, but I am happy to take that question away, ask officials to look into it and write to the committee with a response.
Are there enough members of the bench of the Land Court to cope with the work in hand? The time that it takes the court to hear such cases might be tied up by, as has been suggested to us, a couple of members of the court being in South Uist to deal with a case there. Should we recommend that there be more members of the Land Court?
The change in the timescales was reached through discussion with the Land Court, which was happy with the extension from four to eight weeks and did not ask for a further extension. To be fair, we did not ask whether there was a need to increase the number of members on the bench of the Land Court. We asked it about its schedule and timetables and what it would reasonably expect to be able to comply with.
The Land Court has given us no indication that it is going to miss the eight-week limit. Up to now, as far as we are aware—we will go and check—it has by and large met the four-week limit, although in some cases that has been difficult. The extension will give the court a bit more time, but it still includes a degree of certainty for communities and owners as to when they can expect a decision—it will not just be “mañana”. There are no sanctions to enforce that, but at least it gives some sort of framework.
Dave Thompson has a question on mediation.
I am sure that you are aware that Scotland is developing a strong reputation for mediation. There are many good mediation services out there and we should encourage them. I know that the Government has been involved in that.
Does the Government have the legal power to insist on mediation in relation to disputes under the legislation? We heard evidence from Community Land Scotland that a number of agencies that support community groups would like to be able to facilitate mediation but do not have the legal power to do so. That could speed up the resolution of disputes. I am not sure what the position of most lawyers would be—it might do them out of some work, but lawyers can get involved in mediation, too.
Mediation is something that we should be moving towards, generally, throughout all the legislation on everything that we do in Scotland. We should be encouraging mediation at every step. I would like a wee bit of clarification as to how you see mediation working in relation to the bill and whether you have the power to ensure that people can access mediation to resolve disputes much more quickly than they would through the Land Court.
It is recognised that the majority of crofting community purchases have taken place outwith the 2003 act, using a negotiated settlement between the parties. As we know, those negotiations can often be difficult and it is recognised that there may be a need for support.
The Scottish Government is forming a short-life working group as part of the work on achieving the target of 1 million acres in community ownership. That work will inform the potential functions and role of a community land agency, which was one of the recommendations of the LRRG, and one of the agency’s functions could be to assist with mediation. Mediation is voluntary and it is thought that investigating the options through that route would allow for much better consideration of the issues and the best solution.
On Mr Thompson’s point about legal powers, I will be honest and say that I am not sure what the answer is. We will check and get back to the committee on that point.
That was very helpful, minister. Mediation is voluntary, but it would help for it to be made clear in the legislation that it is favoured and that the community bodies that are assisting community groups will have the power to suggest it and push people towards it, instead of just leaving it as an ephemeral thing.
I appreciate your response, minister, and I look forward to hearing from you once you have checked the situation.
Thank you. We will move on from crofting community bodies to general community empowerment in relation to abandoned and neglected land.
Thank you for sending us the draft regulations for this part of the bill, minister. That has been incredibly helpful. I am sure that I will not be the last member to ask questions on this part, because the committee spent quite a lot of time discussing the issue before our stage 1 report. That was partly because of the weight of the evidence that we received from key stakeholders, but it was also because of the policy intent of the bill.
The policy memorandum is clear about the Government’s objective. It states:
“Land that is neglected or abandoned can be a barrier to the sustainable development of land”
and that the bill’s objective is to enable communities to have the opportunity to buy that land when other routes to getting access to its better use have failed. We have concerns that the phrase “neglected and abandoned” is mentioned in the bill, but sustainable development is not.
I want to kick off on the definition of “neglected and abandoned”. In her response to us, the minister said that “neglected” and “abandoned” take “their ordinary meaning” and are not to be defined in the bill. To paraphrase, she basically said that it is obvious to everybody what the terms “neglected” and “abandoned” mean.
My worry is that the matter is not that straightforward, whether the area is urban or rural. Everybody says that it is obvious in an urban area but not so obvious in a rural area. I have represented an urban area for quite a while. Even in that context, illustrating whether land has been neglected or abandoned is not necessarily straightforward.
You have said that circumstances will be set out in the regulations, but if a community wanted to establish that something is neglected, for example, what would happen if minor works had taken place on the land? What about works just to make a building safe and secure but not necessarily used? What about the question of whether planning applications are regularly submitted? There are questions about the issues of abandonment and neglect and how bad something has to be before ministers would consider it.
It is a concern that “neglected” and “abandoned” are not defined in the bill and that the policy ambition is to achieve sustainable development but that does not appear in the bill. What do you think about the representations that we made in our committee report? Why have you not felt able to date to take them on board and to agree to putting a statutory definition in the bill and using the words “sustainable development”, as you did in the policy memorandum?
Perhaps I can first make some general points on the draft regulations. At the moment, the draft regulations illustrate the sort of thing that could be put into the regulations. We are trying to bring clarity to neglected and abandoned land, and we have tried to take on board the committee’s concerns. If the committee has any suggestions or ideas about what else could be put into the regulations, I will be very happy for you to feed them into the Government at this stage.
The introduction of proposed part 3A of the Land Reform (Scotland) Act 2003, which relates to the right of communities to buy land that is abandoned or neglected, even against the wishes of its current owner, is a very important step. It will allow land that is neglected or abandoned to be brought back into productive use while ensuring that it is developed in a sustainable way for the benefit of the community. I accept that that is not as big a step as some would hope for, but it is an important one, as it will allow communities with clear plans for neglected or abandoned land to make a case for community ownership.
There is the example of the Cuningar loop. That is not exactly the same thing, but it provides an example of the sort of opportunity there can be from the change that can be made to the land. The Forestry Commission has brought into use a derelict site at the heart of the Clyde gateway area, where it has created an inspiring and accessible riverside woodland park on the boundary between South Lanarkshire Council and Glasgow City Council.
As I said, that situation is not exactly the same, but it is an example of the kind of opportunity that communities could have to change land for the better by using the proposed power in relation to abandoned or neglected land. The proposal is not only a demonstration of the Government’s ambition to further community empowerment; it is another step in Scotland’s land reform agenda.
10:15We have listened carefully to the committee’s concerns and those that have been raised by stakeholders. We have taken legal advice on whether amendments could be made to the bill to address the concerns that the committee raised in its stage 1 report. There are several aspects that we must take into account in deciding what appears in the bill. We must ensure that the amendments to the bill are within the competence of the Scottish Parliament. That includes ensuring that they comply with the European convention on human rights, which provides a right to peaceful enjoyment of possessions. We must also ensure that the right to buy will be compatible and concordant with the law in pursuing a legitimate aim in a proportionate way.
I want to be as helpful as I can in helping the committee to understand the legal context. We will actively consider whether amendments can be made to the definition of eligible land to include land that is not neglected or abandoned but which is still causing problems.
Thank you very much. That was very helpful.
Quite a few stakeholders have raised an issue about the term “sustainable development”. I note what you said about legal force and legal understanding, but the term “sustainable development” regularly appears in Scottish Government bills. If the terms “neglected” and “abandoned” are used and the objective of ensuring sustainable development is seen in the use of the land, what could the legal objection be? “Sustainable development” is a term that is understood and is being used in the courts.
I very much welcome the fact that what is proposed is a step on the way to ensuring that land is used in a way that supports sustainable development and I support the Scottish Government’s intentions, but the worry is that, if clear definitions are not provided and the term “sustainable development” is not included in the bill, that might cut across the ambition that you have in the policy memorandum to make a difference in many of our communities.
I will ask Stephen Pathirana to come in on that.
Thank you, minister.
A lot depends on exactly what is changed in the drafting. The present proposals relate to neglected and abandoned land. Depending on what the committee recommends, if we were to remove the reference to neglected and abandoned land from the bill, that would represent a complete change in the scope of the proposal. It would mean that, rather than covering just neglected and abandoned land, it would cover all land. That is a completely different proposal.
When such a fundamental shift is made, it is necessary to think carefully about all the checks and balances that are in place that make legislation compliant. We would be dealing with a different and new proposal.
The proposal focuses on sustainable development in the context of what the community proposes to do with the land. When you talk about including the term “sustainable development” in the bill, if it is about what the community wants to do as opposed to the condition of the land, that is a fundamental shift in the scope of the proposal, and one that changes its meaning.
If you were to be able to define the terms “neglected” and “abandoned” in the bill, would that not go some way to reassuring the communities that are worried that the test of whether land is neglected or abandoned might cut across what the Government hopes to do in giving land a use that supports sustainable development?
We have thought very hard—and we continue to do so—about the merits of defining “neglected” and “abandoned” in the legislation. Any attempt to define those terms would invariably narrow the definition. I think that the question that the committee is interested in is how broad the criteria for land that is eligible can be made.
As the minister said earlier, we are thinking about whether there is scope to go beyond abandoned and neglected land to other land with which there are problems. We need to look at whether we can introduce amendments that would take the scope further than it is at present but at the same time not extend it to all and any land in Scotland.
Although we are not including a definition in the bill, the idea is that we can introduce regulations that set out what issues ministers should consider. That will help to define what we mean by neglected and abandoned land. In a way, that has greater flexibility because, if it is found not to be working quite as well as Parliament wants, it can be amended. If we included a definition in the bill, it would be very hard to make changes to it.
This is a very important discussion, and we are all trying to find the right solution. It might be helpful to step back for a moment and ask, “What is the right solution?”
The right solution is to enable communities to possess—to buy—land that they wish to use for purposes of sustainable development. If we get this wrong one way or the other, that will not happen. It will not happen because it will be frustrated by lawyers who want it not to happen and owners who do not want to sell. We need clarity in case the bill is challenged, because judicial review does happen and reference under ECHR could happen. If we do not get it right, this is the proposal that will prevent communities from participating in the right to buy.
The question is this: is it better to include a definition in the bill and have it challenged but at least be absolutely clear about the meaning, or is it better to leave the bill as giving the words what you have euphemistically called “their ordinary meaning”—though they are capable of many ordinary meanings—and another legal meaning?
That is really quite worrying, because there is a specific legal meaning to “abandoned and neglected land” that you are not applying here. In those circumstances, if you leave the bill as it is, will the challenges be successful because of the vagueness in the legislation? In the greater part—it was not unanimous—the committee believed that it was very important that we tied the definition down as clearly as possible so that communities could use the legislation effectively. That is what we are still struggling to do.
While I am pleased to see these fundamental and radical steps to change land ownership, there is an issue about whether they should be defined in secondary legislation or whether they should be defined clearly as a legislative intention of the Parliament in primary legislation. I do not think that we are there yet; although the regulations are helpful, it is important that we get a clearer definition in the bill.
What Sarah Boyack has been trying to do, quite correctly, is point to sustainable development as one possible area in which we could get a clearer definition. I think that amendments will be brought forward on the issue, and I would urge the Government to think about that, because we are all trying to help each other to get absolute clarity so that the intention for a radical step forward will be fulfilled in practice.
We know from the land reform legislation that many of the difficulties that existed, including some that I have been dealing with in recent weeks, are because the legislation is not as clear as it should be and there are difficulties in operating it. We have learned from that, so the question is: can we keep moving in this legal debate?
My contribution to that debate is that I think that we need a clear definition and we need the term “sustainable development”. Work that has been done by Community Land Scotland to suggest a way to frame the definition should be seriously considered by the Government’s lawyers. I think that there will be an amendment at stage 2. If that amendment were to be seriously considered by the Government’s lawyers, we might get ourselves to the stage at which we could all eventually agree.
We appreciate the committee’s support and its work in the area, and we are actively considering what is possible from the Government’s side. The consultation on the draft land reform bill asks the question:
“Do you agree that there should be powers given to Scottish Ministers or another public body to direct private landowners to take action to overcome barriers to sustainable development in an area?”
The responses to the consultation are currently being analysed, but we are considering right now what other amendments could be lodged.
That is helpful, minister. I am grateful for that. You are saying that the debate can continue and that you will look at possible amendments and keep thinking about how we can make the proposal effective so that it does not present a difficulty but fulfils your policy intention, which is warmly endorsed by the majority of the committee.
Yes.
It strikes me that the broader the definition, as outlined by Stephen Pathirana, the more room there is for challenge, but that is counter to what you have said. The people who are happy with the current proposal are the ones who do not want change in relation to a community’s right to buy land, and that is significant. We should look at the folk who support the change and look at the folk who are content with the current situation. That is just a comment to kick off with.
Minister, I would like a wee bit of clarity on what you said about the legal advice. You mentioned the competence of the Parliament and the ECHR. You said that, if the definition was on the face of the bill, there would be greater difficulties and problems for us. I do not understand—I am not a lawyer, so maybe Stephen Pathirana can help me with this—why you think that the definition would create problems if it were on the face of the bill but not if it appeared later in regulations. What is the difference between those two things? Why are you confident that you can put something in the regulations that you feel you cannot put in the bill?
First, I am not a lawyer either—let us get that clear.
My apologies.
Nevertheless, I will do my best to answer your question.
There is still some confusion about the different things that we are talking about in relation to the proposal. There is the issue of the type of land that we are talking about and how the words “neglected” and “abandoned” relate to the land. There is then the issue of whether the community has a proposal and a case for taking ownership of the land. Those are different things.
When we are talking about the type of land, the question is about what definition describes the land as it is now. My initial understanding is that the committee was suggesting that, if we removed the words “abandoned and neglected”, the provision would then mean all land. However, all land is very different from a specific class of land. Even when we are talking about crofting communities, we mean a specific type of land with specific rights that already apply in relation to it—it is different from other land. We need to be clear about what land we are talking about, and we are using the words “neglected” and “abandoned” to describe the land that we mean.
Although I accept that we are talking about the normal definition of “neglected” and “abandoned”, which ultimately—as with all groundbreaking legislation—will be defined by case law, we anticipate that that definition will probably be broader than any definition that we would articulate. Invariably, when you start trying to articulate things, you end up narrowing them down—that is the risk. We could define it down, but the definition would be narrower rather than wider.
It would be a substantive change in direction if the proposal were to make the sustainable development of communities the key factor in driving decisions about which land was eligible. That would be the communities deciding, which would be a huge change. In developing the current proposal, all the checks and balances in relation to “neglected or abandoned” land have been carefully thought through. Essentially, that would all have to be thought through again.
10:30One could argue that, in the context of the consultation on land reform, the proposal for giving ministers the power to intervene where the actions of a landowner are detrimental to the sustainable development of communities—in which the committee is really interested—requires a lot of careful thought about how we design a mechanism that is compliant and that pays regard to landowners’ and communities’ interests. From a landowner’s point of view, such an intervention must be adequately foreseeable. They would have to understand what they must do to bring their land back into good use and make it sustainable. Making a shift like that would be a huge change at this stage in the process.
We can go away and look at the scope for bringing greater clarity to the provision on “neglected or abandoned” land and for extending it to other land with which there are problems. However, extending the provision to all land is a bigger step.
That is very helpful and useful. I apologise for calling Mr Pathirana a lawyer earlier.
I will take it.
As we have said, the committee has proposed that the provision be taken out altogether, but I can see that there might be arguments for leaving it in.
Let us assume that the provision—which keeps things tight and does not extend to all land; I fully understand that point—is kept in the bill. Does it not logically follow that, if the reference to “neglected or abandoned” land is on the face of the bill, having a definition in the bill would strengthen your hand even more, especially if that definition made it clear that the whole purpose of the provision was to do with sustainability and sustainable land?
Rather than just referring to “neglected or abandoned” land in the text of the bill—which in a sense clarifies that there is a tight definition—with the regulations following, it would strengthen the bill and make things very clear to everybody if we also included the sustainable development aspects in the text of the bill. That would mean that we were really defining the concept and being much more precise. Am I right about that?
Possibly. Putting a clear definition in the bill would certainly make the provision more precise, but it would invariably be narrower. It would have to relate to the sustainability and condition of the land as opposed to the sustainable aspirations of the community, and those are different things—there is a big difference.
There is scope in regulations to allow us greater flexibility to get the definition right over time in a way that putting a definition in the text of the bill would not. Including a definition might pin the concept down and offer less flexibility.
I take that point, but the whole purpose of the provision is to ensure that land is used to its best advantage, and that sustainable development of land is progressed so that land is not just lying there doing nothing and not benefiting anyone other than someone who has bought it as an investment.
I agree that the definition would have to relate to the sustainable development of the land, and that is fine, but that would be in the interests of the community. If there is a bit of land lying there doing nothing because someone has bought it as an investment to hedge against inflation or whatever, and the community would like more housing, business parks, hydro schemes or something like that, the community would be able to come in and argue that the land was not being used sustainably and that it had a way of ensuring that the land would be used in a sustainable way. The community could present a business plan and give all the detail—along the lines of the Pairc judgment, for instance.
I am quite comfortable with the definition being in the text of the bill to make it clear, because what I have described is what we are seeking to do. A lot of land in the Highlands is sterilised and is not being used to best effect, and we need to change that.
Can I come back on one small point, convener?
Yes, briefly. It is a debate. Alex Fergusson and Mike Russell want to come in, and so do I.
The provisions that we are discussing do not apply to the crofting districts. In essence, the crofting community right to buy is a broader right than that which would apply in other areas. In all the situations in the Highlands that Dave Thompson mentioned, the crofting community right to buy is the vehicle that would be used.
Not all of the Highlands is under crofting tenure.
Exactly—only some districts are.
Alex Fergusson can go next.
First, I thank Mr Pathirana for confirming—I think—that the committee’s recommendations in the area that we are discussing would, in effect, introduce an absolute right to buy for all land, which is what is creating the difficulty—
No.
Well, Mr Pathirana said that the recommendations would open up the possibility of the right to buy covering all land. Is that right?
That was a mistake on his part.
If we do not provide a definition of the land, we will, in effect, be talking about all land.
If you did as the committee recommended, that would be the case. Is that what you are saying?
If we removed the definition of “neglected or abandoned” land.
I thank you for that clarification, because that is why I dissented from that section of the committee’s report.
My question is to the minister. Can you confirm that it remains the Government’s intention that the power should be used only as a last resort when all other processes have failed?
Yes.
Thank you. That is all that I need to know.
Perhaps I should have come in before Alex Fergusson, because I wanted to say to Stephen Pathirana that I do not think that the committee intended that the recommendation to remove the words should open up all land to purchase. I can see that that might be the logical inference, but it was not the committee’s intention. I think that I am right in saying that about the recommendation from the discussion that took place.
The committee’s intention was to ensure that the opportunity would exist to purchase land that was “abandoned or neglected”, but getting a definition of that land has proved to be very difficult. I do not think that there is any intention to open up all land for purchase. Some might argue that that would be the right thing to do, but that is another debate.
The committee’s intention is to fulfil the Government’s policy intention, and the debate is about whether further definition of those words is required in the bill in order to do so. That is what we should focus on. There is no intention to go wider and, if that was to become the debate, that would—as we have just seen—not help the Government to fulfil its intention. Criticising what the committee did is perhaps not the road to go down.
I see that the minister takes that point.
I want to focus specifically on the fact that we are talking about “eligible land”, as has been mentioned. “Eligible land” excludes agricultural land that has been kept in good condition, low-intensity-use land that has been agreed and so on. The term “abandoned or neglected” therefore applies to a limited amount of land: it does not apply to all land. Can you confirm that, please?
That is set out in the draft regulations, which list the matters to which we must have regard in deciding whether land is eligible. They fall into three broad categories. The first is
“the physical condition of the land and its effect on the surrounding area, public safety and the environment”.
The second is
“the use of the land, or lack of use as the case may be, including whether the land is a nature reserve, held for conservation purposes or used for public recreation”.
The third refers to
“any designation or classification of the land, such as land which has been classed as contaminated land, or buildings which are listed buildings or scheduled monuments.”
Thank you for that confirmation. It is a good explanation of areas in which there should be some discretion so that assessment can be made.
Minister, you should be aware that, whatever arrangements are finally agreed by the Parliament, those who have a landowning interest will cite the ECHR. In an article in this month’s Scottish Field—a 26-page assessment of land reform—the editor, Richard Bath, states that
“it is almost inconceivable that any reform will not be challenged legally.”
We live in a world in which, whatever move is made, we can expect that some means will be found to challenge it in court—that is the reality. If that is true, we are moving into an area in which people will take entrenched positions because they are not prepared to accept the situation. Before the ECHR, the crofting right to buy was accepted, but it looks as though there will be a challenge to the community right to buy whatever happens.
When are you going to respond to our stage 1 report? We need to see that response. In the report, human rights and equalities are dealt with in the following way. The ECHR is set against article 11 of the International Covenant on Economic, Social and Cultural Rights. Malcolm Combe suggested that, when the two are put together, we are led to talk about matters that lead to thinking about property and the sustainable use of land. If we are going to fulfil the requirements for food, housing, sanitation and so on, we must see the land as being sustainable. We are trying to suggest that it would be a good idea to find a way in which to test the ECHR against the United Nations covenant. If a court is faced with a situation in which someone has challenged our decision on the basis that the ECHR has been breached, will you be prepared to push the covenant that the UK has been signed up to since the 1970s as overriding the ECHR?
The Scotland Act 1998 says that we are responsible for ECHR issues. Given that there will almost certainly be challenges in the courts, is it not time that we went back with something that overrides the ECHR?
We can get back to the committee with a further response to that question. In all cases, we have to find a way of articulating clearly the public interest and balancing it with the rights of individuals and communities in any process such as that involving the crofting community right to buy. The proposal on neglected land tries to do that.
The committee should reflect on the fact that those things are probably all possible, but we need to make sure that the checks and balances that are set out in a proposal achieve the outcome in a fair and balanced way. In what we have proposed so far on neglected land, we think that we have struck the right balance, subject to some further thinking about the definition of “neglected or abandoned” land. If we were to broaden the proposal out to other areas where we wanted to take action, we would need to think that through in a broader context. We are thinking about the issues in the context of the land reform consultation and where else the Government might choose to go.
I reassure the committee that we are considering all of that right now to see how we can broaden the definition. The Government’s response to the committee’s stage 1 report was sent this morning, so the committee should have received it.
Thank you for that. I am just suggesting that you should take seriously the context in which we are working. If we are to achieve something lasting, we will have to take into account the moving platform on which we work. The consultation document talks about land reform in Scotland being for the common good—it uses a phrase like that. That suggests that the common good overrides that of individual current landholders. It seems to me that, if that balance is to be reflected in the proposed amendments on the definition of “neglected or abandoned” land, you should take that on board.
We are happy to do so.
Do members have any further points to make? I hope not, because we have gone round the houses on the issue. I hope that this has been a constructive way of dealing with the matter.
Minister, I thank you and your colleagues for your evidence. I hope that the Government will be able to meet our wishes and that, when we read your response, some of it will become clearer.
We will have a short suspension because we have a big group of witnesses coming in and we need a wee break.
10:46 Meeting suspended.Previous
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