Justice 1 Committee, 26 Jan 2005

Meeting date: Wednesday, January 26, 2005

Official Report 310KB pdf

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Subordinate Legislation

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Land Reform (Scotland) Act 2003 (Modification) Order 2005 (Draft)

Welcome to the second meeting in 2005 of the Justice 1 Committee. I welcome the Deputy Minister for Environment and Rural Development and apologise for keeping him waiting—we had important business that we had to finish.

I refer members to the note that has been prepared by the clerk on the draft Land Reform (Scotland) Act 2003 (Modification) Order 2005. Motion S2M-2288, in the name of Cathy Jamieson, was lodged but has subsequently been withdrawn, and a new motion in the name of Lewis Macdonald has been lodged. That is why the minister is here this morning. I invite the Deputy Minister for Environment and Rural Development to speak to and move motion S2M-2293.

Thank you for inviting me and for your prompt agreement to consider the order, which we are keen should go forward quickly. The order is intended to correct an inadvertent change that was made while the primary legislation—the Land Reform (Scotland) Act 2003—was going through Parliament. That change was made to the definition of what was excluded from the rights of access. The original bill contained a provision to exclude from access land on which crops are growing, the definition of which included

"a plantation of trees which are at such an early stage of growth that they are likely to be damaged by the exercise of access rights in respect of the land in which they are planted, but does not otherwise include woods, forests, orchards and other places in which trees are planted".

At stage 3 of the Land Reform (Scotland) Bill, the Parliament agreed without division to an amendment that had been lodged by Rhona Brankin, who was a back-bench member, to remove the exemption for plantations of young trees. However, the text that was removed included the phrase

"but does not otherwise include woods, forests, orchards and other places in which trees are planted".

That text was lost, which left the legislation ambiguous with regard to whether woods, forests and other places in which trees are planted would then be covered by the access provisions.

That inadvertent deletion is addressed in the modification order to remove any ambiguity from the proper interpretation of the act. It is quite clear from Rhona Brankin's speech in support of her amendment, and quite clear from the responses in Parliament to the debate, that the intention was not in any way to limit the right of access, but to increase it. The purpose of the modification order, therefore, is to make it clear that woods and forests are included in the right of access in the 2003 act.

We consulted on how we might best do that in a way that would also recognise that there are specific and very limited areas of woodland in which one would not want people to walk. We consulted on a formulation that included nurseries and so on. It was clear from the responses to the consultation that we would have to be careful and that any restriction would have to be narrowly defined so that it did not inadvertently exclude from access areas in which, for example, there was natural regeneration of woodland and in which young trees were growing. The form of words that is used in the modification order is:

"land used wholly for the cultivation of tree seedlings in beds".

That is a very specific and limited exemption to the right of access, and we think that it meets both the spirit of the amendment that was lodged by Rhona Brankin and the intention of the original bill.

In summary, the modification order simply addresses an anomaly that has emerged from close scrutiny of the wording of the act as passed by the Parliament in 2003. The consultation that we conducted on our proposal to address that anomaly produced a range of responses, the vast majority of which were in favour of the course of action that we are taking. I hope that members will agree that that is the right way forward.

I move,

That the Justice 1 Committee recommends that the draft Land Reform (Scotland) Act 2003 (Modification) Order 2005 be approved.

Thank you for that explanation, minister.

In the light of the debate that took place during the passage of the bill, I am minded to support the order. I recollect that, as part of that debate, Allan Wilson agreed that as long as someone did not walk on the shaws in a field of potatoes but kept to the rigs, they could exercise their right of access. Previously, I thought that that scenario would apply in this case. The minister's clarification is useful in that respect. Although the order carries the danger of the situation that I have just outlined, I suspect that the way in which it is cast excludes the right of access between young growing trees. However, given the vulnerability of young growing trees, that is probably no bad thing.

I endorse what Stewart Stevenson said. There was much debate during the passage of the bill about the specific question of young trees. The Parliament intended to protect growing trees but not to exclude woodlands in general. I am grateful to the person who discovered that an error had been made. The order is welcome: I like the way in which we call it a modification order. I am sure that most people will welcome the fact that the error has been rectified.

No other member wishes to comment on the order. Does the minister have anything to say in summing up?

No, other than to say that I welcome the comments by Stewart Stevenson and the convener, which indicate that the modification order reflects the will of the Parliament and the intention behind the 2003 act.

We were asked to deal with the order as a matter of urgency and we did so. We realised that the issue, unlike some others, would be straightforward.

Motion agreed to.

That the Justice 1 Committee recommends that the draft Land Reform (Scotland) Act 2003 (Modification) Order 2005 be approved.

Members are aware that the committee is required to report to the Parliament on the order. Given that there is not much to note other than to say that the committee is satisfied with the order, I suggest that we simply note the order.

Members indicated agreement.

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Part 1 Land Reform (Scotland) Act 2003: Draft Guidance for Local Authorities and National Park Authorities (SE/2004/276)

I am grateful to the minister for agreeing to remain behind for our second item of subordinate legislation.

I refer members to the correspondence that we have received on the subject from the minister, in which he responds to the concerns that we raised at our meeting of 12 January about the introductory section of the guidance. The minister proposes to withdraw the current draft guidance and to lay an amended version before the Parliament. I clarify that we are talking about the introduction to the guidance and not the guidance itself.

I welcome the fact that the Executive has made a prompt response to the concerns that were expressed in committee. That said, the minister and his officials should reflect on how we got into this situation. The people in Scottish Environment LINK and others were astonished to find that the wording had somehow appeared right at the end of the process. That is what created this particular difficulty. I hope that our comments will inform future approaches to similar consultations; we should not get into a pickle like this again.

Although there remain some issues with the guidance, they are not of the character to inhibit our being comfortable with the document. The only remaining issue of which I am aware, on which it would be useful to hear from the minister, relates to the timescale for putting the guidance into practical use in the local authorities and national parks. There is pretty widespread concern that we should try to move forward as rapidly as possible. That is one of the reasons why I will not make a meal of other issues in the draft guidance, because it can be changed at a later stage in any event.

I do not disagree with Stewart Stevenson. The committee could have lodged a motion to annul the order, but we had to make that judgment call. We were reluctant to lodge such a motion because it seemed to be an onerous action and we thought that the problem with the draft guidance could be rectified in another way. I remain unhappy about the language of the draft guidance for local authorities. If there had been another mechanism whereby the guidance could have been amended to reflect more accurately the language of the Land Reform (Scotland) Act 2003, I would have chosen to go down that route. However, there was no alternative.

I appreciate that debate will continue about this area of the law, so the matter will not end here. Given the committee's concerns about the draft guidance for local authorities, I presume that the minister will review the 2003 act at some point because representations have been made about matters such as the definition of the area to be drawn around the curtilage of a building. There are other outstanding issues. Will the minister give the committee a commitment that the guidance will be reviewed at a later date when the other issues of concern about the 2003 act have been reviewed? I would feel a lot happier about recommending the order to Parliament if the minister could give us that assurance.

Does any member wish to comment before I invite the minister to respond?

I have a specific question about finance. Would it be useful to ask the minister about that at this stage?

Let us come back to that.

I am happy to give an assurance that we will keep the guidance under review. We immediately recognised the reasons for the committee's concern about the inadvertent wording in the draft guidance and we have acted to deal with it. First, we have tweaked the words in the introduction and we have also made it clear and explicit in the body of the introduction that the guidance is subject to the provisions of the 2003 act and does not in any way supersede it. That is the case anyway, but it is worth putting it in black and white to remove any doubt.

We looked at one or two other aspects that were raised with us and made some small amendments to the wording about core paths, for example, in order to make it clear that we do not expect every path in a core path network to be multi-use.

Stewart Stevenson made an important point about timing. I am grateful to the committee for the way in which it dealt promptly with agenda item 1 today, as well as with this item 2. It is not essential that the guidance to local authorities be in place in order that the provisions of the 2003 act can be implemented, but it is sensible that it should be and we are therefore keen that that should happen. Following today's discussion, and assuming that the committee is content, we will produce a revised version of the guidance and hope that it will be available for the implementation date of the access provisions, which is 9 February. That is the target date towards which we are working.

I take the minister back to a matter that was raised by Perth and Kinross Council about the availability of resources. In your response to the convener's letter, you wrote:

"A total of £22 million has been allocated to local authorities"

You gave the Perth and Kinross element of that allocation as £178,000 for 2004-05 and 2005-06. I appreciate that it is a matter for local authorities to determine the priorities for their budgets, but will you confirm whether the £22 million was identified specifically in the grant-aided expenditure provisions for all local authorities?

If you are asking whether the money is ring fenced, the answer is that it is not.

If the funding was ring fenced, it would not be a matter for local authorities to determine how it was spent. I was asking whether the money is specifically and separately identified in the GAE settlement.

I assume that it is, but I will ask Ian Hooper to elaborate.

I understand that £22 million was included in the calculation of the GAE block. I am not sure whether that answers your question.

I think that it does. Was that sum within the GAE block specifically and separately identified?

It was certainly identified in the discussions involving the Executive.

In other words, you are asking whether local authorities know that that was the amount of money allocated. The answer is yes, I think—but in the usual way that applies in such circumstances.

The minister might wish to reflect on that and come back to the committee on the matter. We have perhaps been getting two slightly different answers on this issue.

I am not quite sure that I have followed the point of the question.

The sum might have been identified at Executive level, but was it identified in the GAE settlements to local authorities? For example, does Perth and Kinross Council know that £178,000 of its GAE settlement is supposed to meet the access requirements under part 1 of the 2003 act?

Those provisions have certainly been made clear to local authorities collectively, through our discussions with the Convention of Scottish Local Authorities. I can come back to the committee on the precise detail of how we or COSLA let individual councils know about that. I am afraid that local government finance is not generally part of my province, so you might well be ahead of me on the precise mechanics of that. "In the usual way" is probably the answer. I will come back to you, if that would be helpful.

I thank the minister for remaining behind for this agenda item. The introduction to the draft guidance has been revised, for which the committee is grateful. We are also grateful to Ian Hooper, who made the offer to us when he was last before the committee. We recognise that you have taken on board our concerns, and we look forward to reviewing the implementation of the 2003 act in the months to come.

We must prepare a report to Parliament on the guidance. I suggest that we simply reflect our discussion.

Members indicated agreement.

Will our report to Parliament reflect the question of finance and any correspondence that we receive from the minister? I would hope that my question can be answered relatively simply. Will that be reflected in our report, or do you intend the report to be narrower than that?

I will need to check how much time we have to prepare the report.

The guidance that has already been laid has to be withdrawn, given the changes to the introduction. The whole order will then be re-laid, even though only the introduction is being changed. There is no timescale for that as such. If we get a prompt reply from the minister, it might be possible to incorporate that. Margaret Smith originally made the point that there is no reason why we cannot include the committee's issues in relation to core paths in our report.

I think that I am correct in understanding that the guidance is not, strictly speaking, an order. It is a draft that is laid under a power in the 2003 act. In a sense, it falls outside the normal reporting procedure, even to the limited extent to which we are required to report on negative orders. It is a slightly mysterious thing, this draft guidance. When we passed the bill, I did not twig that we would be dealing with the guidance in this way.

If we are interested in the development of the Land Reform (Scotland) Act 2003, it is useful to know what discussions took place between the Executive and local authorities on their obligations on access. It would be useful to get an answer on that point for future reference.