Rural Affairs, Climate Change and Environment Committee

Meeting date: Wednesday, June 26, 2013

Official Report 365KB pdf

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Land Reform Review Group

Before we begin, I tell members that Allan MacRae, the chairman of the Assynt Crofters Trust, which was involved in a successful buyout, unfortunately died yesterday. We are so sorry. He was an inspiration, and the photograph of him holding a bottle of champagne with his little dog at his feet was an iconic one. It symbolised the 1992 buyout, which had a huge impact on people’s belief that ordinary folk could—as Allan said—win the land. It is appropriate to remember that point in our meeting today, and no doubt we will hear more about it in due course.

I welcome our witnesses from the land reform review group. Dr Alison Elliot is the chair, and Robin Callander has recently been appointed. Do you wish to make a short opening statement?

Yes, indeed. Thank you, chairman, and thank you for the invitation to give evidence to the committee. It comes at an opportune time, as we are halfway through the review that we are conducting. Phase 1 is behind us, and we always knew that, at this stage, we would have to review our approach to the next part of the work programme.

We have been involved in shaping the mid-term review over the past few weeks. However, we did not realise when we started out that we would have to restructure the group, which has also been part of the review. With the Government’s support, we considered expanding the group from three members to five. We have now concluded that process, and the Government has appointed five new people.

The group now includes me as the chair, and three other members who have extensive hands-on experience of the subject. They are Ian Cooke, who was appointed some time ago as the director of the Development Trusts Association Scotland and has a lot of experience of the urban situation as well as rural issues; John Watt, who has a lot of experience in Highland and the work of Highlands and Islands Enterprise; and Pip Tabor, who is the project manager for the Southern Uplands Partnership. In those three people, we have the geography covered, as well as a variety of hands-on skills.

For our fifth person, we were seeking someone who has an overview of the whole subject and can direct the framework in which the review will be conducted. We are fortunate that Robin Callander has agreed to join the group on that basis. He is coming in as a specialist adviser. I invite him to tell us a bit more about what that involves.

Please do, Mr Callander.

Good morning. The committee will be familiar with the notion of using a specialist adviser, whether it is simply to provide technical information or to tackle a big and complicated story. Some of you will be aware, as the chairman—

I am the convener, by the way.

Convener—I am sorry.

We have non-sexist titles.

Yes.

I have been involved with parliamentary committees as a special adviser for a long time—the first time was 25 years ago. An adviser to a parliamentary committee is obviously not on the committee, but is part of the secretariat. However, in an independent committee of inquiry, there is, in a sense, nowhere for the adviser to sit apart from on the group. It is therefore important to make the distinction that, as specialist adviser, I have no authority and no vote. The other four members of the group will make the decisions on the terms of the final report. My role—as Alison Elliot mentioned—has been to assist with that.

I could say more about my role, but you will be familiar with the way in which a specialist adviser helps a committee to find its way around a big, complicated topic, to develop a framework or identify areas that it might like to look at, and to find out particular information.

As a personal comment, I note that, when one works for a parliamentary committee, one steps into a system and worries only about the topic. When an adviser joins an independent inquiry, they have almost a clerk-like role in helping the committee from within the committee. Despite going to parliamentary committees for 25 years, this is the first time that I have been on this side of the table.

Thank you for that. I would like to home in on a pivotal question about the direction in which the land reform review group has chosen to go. Your remit from the First Minister is to

“enable more people in rural and urban Scotland to have a stake in the ownership, governance, management and use of land”.

You point out that land reform can, of course, create winners and losers, but the existing structure of land has also created winners and losers. At what point, and why, did the group decide to focus specifically on communities?

In preparation for the meeting, I looked back at the evidence that we gave to the committee in September 2012. The emphasis on communities was a theme running through the evidence even at that stage. The idea of communities as opposed to individuals is contentious because communities are made up of individuals, and we recognise that.

I said to the committee in September that it was important to make the subject manageable. I remember that the convener started by saying that the subject has been around for 1,000 years so we were clearly not going to address everything in 20 months. In a sense, focusing specifically on communities is one of the ways in which we have made it manageable. Moving forward, we will be looking at the wider framework, and the way in which the material that is relevant to land reform fits into that will become clearer at that point.

That explains your aim for and focus on community ownership. Since the Government set out the remit, has it at any time discussed that particular focus with you?

The focus on community ownership was for historical reasons. It is the sort of thing that you get into if you spend a fair bit of time looking at the Land Reform (Scotland) Act 2003, because it is the issue that was picked up at that time. However, as I said, we have been reviewing the way in which we will develop our work in future. Robin Callander might want to comment on that.

It might be helpful if I update the committee. You will realise that I have been appointed very recently but, in the past week, there have been on-going and frequent discussions between the new members of the group, and as you might be aware, the group met its 13 advisers yesterday, so considerable progress has been made. Alison Elliot alluded to the fact that, like a committee of inquiry, the group will have two phases. Phase 1 involved the evidence gathering, the interim report and the feedback on that report. Phase 2 involves turning to face the final report, and the group is structuring how it will do that.

The review has involved consideration of process issues. For example, the new members who now constitute the group are keen for the submissions that were made to the inquiry to be made publicly available online as soon as possible, and we are exploring that. Due process has to be gone through—for example, we need to check who said that their submissions could not go online and to check for defamatory comments.

On the substance of the brief, the new group is clear that its remit involves looking at the broad sweep of what might be considered to constitute land reform issues in Scotland. I am conscious of the recent debate on the issue in Parliament and your comments, convener, when you quoted Schumacher, who, to paraphrase, said that if you look at the land, you see the society. The group has already discussed how to approach the issue and agreed to bring in a number of different topics.

For various reasons, the interim report identified six work streams, but the new group has reviewed that. Those work streams are now off the table, not as topics, but in the sense that they suggested that that is all that will be covered. For example, at a simple level—and reflecting some of my recent involvement—the list did not include the marine environment yet, as the committee will well know, for many coastal communities, there is a major issue with the management of the sea bed and the foreshore. In that sense, it is helpful that the group has made the scope of its inquiry clear right at the beginning. I would be pleased to elaborate on any aspect of that in response to questions.

Have you shared the decision about your focus and the specifics of that with the Government?

We had a meeting with the minister about 10 days ago. At that point, we were talking about the structure of the group and looking for somebody who would have an overarching view. To that extent, we have been in touch with the Government, but we have not been in touch with it since Robin Callander was appointed.

I am slightly confused because, when the group was initially launched, it had a wide remit. Then we had an interim report, which made it pretty clear that it was focused on community land issues only, and at the time there was support from the minister for that. Now, there seems to be a broader remit and additional members have come into the group. There has been a relaunch of the group and we are going back to a much broader inquiry.

This time, will there be a much more strategic approach to evidence gathering? During the first phase, there was criticism that the approach seemed to be to say, “We’ll go where we’re invited”, and there was a feeling that some voices were not heard within the wider debate. I know that committee members are going to pick up on tenant farming issues. Can you confirm that there will be a wide, inclusive review of land reform? Will a much more strategic role be taken with regard to the evidence that is gathered and considered?

10:15

I do not know whether you have it in your briefing pack or whether you have revisited it, but the group’s remit is extraordinarily wide. It is the land of Scotland—which, at a certain level, is the territory of Scotland in all its different aspects—and the people of Scotland. The group will undertake a systematic and strategic analysis of the topics, putting those issues within a coherent framework and narrative. Many of you will know that there are many aspects to the land reform debate and that part of the difficulty is that there is no clear, coherent framework within which to consider the issues. People come to the group with their issues or a group of issues, and the group considers them in that way. You will be familiar with the position concerning the Crown Estate commissioners. There was great confusion until the Highlands and Islands councils had their own working group on the subject. That enabled everybody to have a far more focused and structured discussion.

I alluded to the marine environment. You will know that half of the land of Scotland is under sea water and the dividing line between the two halves of Scotland is the foreshore. That is the land of Scotland, and how that land is controlled and owned is an important question. Land, in that sense, is a fundamental cross-cut of society.

Good morning to you both. As you mentioned, the group has had six work streams: community energy; support for new owners regarding community building capacity; the idea of a land agency to help communities to purchase land; community engagement with landowners, to see where there are good examples of that; land reform in an urban context, which is about the urban community right to buy; and the crofting and Highland experiences, which is about learning from the Highland communities’ experience of land reform.

The focus has been very much on communities. I would like to explore how the land reform review group can help individuals and tenant farmers. There have always been problems with access to land, and it is still a scarce resource. How might the six work streams of the review group address the issue of tenant farmers, individuals and new entrants gaining access to land?

You mentioned the six work streams that have contributed to the review that we have just conducted. Much of the material connected with those will be considered in the wider framework of a comprehensive approach to land reform. We are still working on that, so I cannot say exactly what it will cover. I invite Robin Callander to comment on that, and I will return to the question of tenant farmers.

As Alison Elliot says, the land reform issues are not encapsulated in those work streams. It becomes a matter of classification. I gave you three environments, physical and legal, in which land reform could take place. Urban and rural issues are important, but property law is the same in both of those environments. What the group is saying is that there is a much bigger range of topics relating to individuals as well as to collective, social and community ownership. In that sense, this involves the acquisition of land.

If we look at your committee’s work programme, it might be construed that the committee deals with land reform on an on-going basis. That is not just in relation to leased land—whether it is leased by a crofting tenant or an agricultural tenant—but in relation to issues to do with leased land in a commercial and industrial sense.

Scotland has systems of ownership and leasing. The convener is familiar with issues to do with succession in relation to heritable property, which the Scottish Law Commission has pursued. That is a significant land reform issue, and the group would like to be able to describe and explain it. With some of the issues, there may be something on the table already. For example, common good funds are being picked up in the community empowerment and renewal bill. The land reform review group will go into different issues within the framework to varying levels of detail, depending on whether an issue is receiving attention.

I will give an example of how the perspective changes slightly. Land reform in Scotland should never be confused with the fact that the Parliament decided to call the previous legislation the Land Reform (Scotland) Act 2003. A natural way in which to start looking at the issue of public access is to consider whether the statutory entrenchment of the existing right through the 2003 act is adequate. Did we get the act right? Is it working? The group’s interim report says that the issues seem to be down at the implementation level. However, that does not mean that there are not issues for the land reform review group to address and consider in its inquiry.

Some of you will know about the issue of public rights over the foreshore, which are held in trust by the Crown. Again, the Scottish Law Commission covered that in its 2003 report. Understandably, at the time of the 2003 legislation, it was enough of a debate for people to arrive at what was achieved, without an attempt to tackle the notion of Crown rights over the foreshore when there was considerably less understanding than there is now about those rights. For anybody who is not familiar with the rights, I note that, in Scottish history, the ownership of the foreshore by the Crown and the rights over the foreshore that are held in trust, including access and various traditional rights, became separated. It is only the ownership right that is reserved to Westminster.

The Scottish Law Commission recommended that, with the statutory provision on other access rights, it would be logical to clarify the terms of those traditional rights so that they do not continue to erode, to give them statutory force and to link them to the other access rights. Because local authorities already have powers over the foreshore in relation to byelaws, there is scope to fit it in in that way. That is just an example of how the group can pick up extra topics when it is considering different areas.

Thank you for the example. To get back to the core of the question, though, the six work streams perhaps do not directly address the issue that I mentioned. I think that Dr Elliot wanted to come back in regarding tenancies, which are probably the easiest way of accessing land.

Or not, as the case may be.

Indeed. The issue of tenancies tends to be picked up in the context of individual as opposed to community approaches to land reform. There are different ways of approaching the individual issues. Clearly, there are land reform issues that are to do with individuals, and there are issues about property rights—they are at a high level of generality, if you like. The evidence that we heard from tenants had to do with different kinds of individual issues between them and the landlord or factor. When we listened to those tenants, we tried to learn something about solutions that would be appropriate at a general level, rather than the specifics of particular complaints.

When I talk about getting to an individual level, I mean the level of an individual complaint. It is difficult to see how we, as a group, could attend to that. We did not hear much at a general level from the tenants whom we spoke to, other than about the absolute right to buy, which is a different issue. The evidence that we got had a level of individuality that was not helpful for the group as a whole. Does that help?

That helps slightly, but I would like to explore the issue a little further. Tenants have a luxury, I suppose, because they actually have their tenancy. At present, it looks as if not so much land is being let. More land is being farmed in hand. Some landlords are probably concerned about the absolute right to buy, so they are not letting land, and there is a bit of a lack of trust that goes back maybe 10 years or so. Was there much evidence of that in your deliberations or research? Did individuals come forward to say that they could not access land or that they could not get a tenancy because tenancies are not being offered? That seems to be the case—that is my view, anyway.

As I said, most of the evidence that we listened to that was relevant to that was about individual cases and complaints. I did not see how we could take that forward. Some concerns had to do with issues that were already being dealt with elsewhere, including things to do with the conduct of rent reviews, which we heard a lot about. We also heard about assignation of tenancy, which could be another general issue to pick up. However, those issues were being dealt with elsewhere. We said that, if they were being dealt with by the tenant farming forum, that was the appropriate place for them to be dealt with.

Good morning, both of you. I seek a little further clarity on this issue. If I have it right, you purposely took a step back from looking at some of the sensitive areas—quite rightly, in my view—because they were being looked at by other forums, particularly the tenant farming forum. What I have not quite picked up from you is what your future intentions are for the review that you are undertaking. I am very aware that, in the wake of the cabinet secretary’s announcement last week about an absolute right to buy, the Scottish Tenant Farmers Association has suggested that you look at that issue again, to try to bridge the time gap that will exist between now and when the cabinet secretary’s review comes into being next year. Will you clarify your intentions on the specific issue of landlord-tenant relationships?

As I understand it, the STFA has suggested that the issue of tenure should be looked at in general, and it will be part of the overarching framework that we develop. I will let Robin Callander pick that up.

If one is taking a systematic approach to land reform, the issue of leased land—be it crofting tenure or agricultural tenancies—is clearly in the frame. We all know that it is a long-standing issue with a long history and it is clearly part of the framework and part of the issues that the group is looking at.

The same question arises not just with that issue but with some of the other issues. I mentioned common good funds, which are an important issue. It is a collective issue, obviously, but it is being considered in the proposed community empowerment and renewal bill. The review group will monitor and discuss it. It will see what is included in the bill and, if it feels that there are shortcomings or points to be addressed, it will try to bring them to the fore. It would also do that if, for example, another piece of legislation were introduced that the group felt might have addressed a particular issue but still left a big question in the area. That could apply to tidying up aspects of the community right to buy or bigger issues that it is not pragmatic to incorporate at this stage.

10:30

Similarly, with the agricultural tenancy situation, a debate is going on among the parties that are involved. There is the prospect that they will all get round the table with all that they need to discuss. Therefore, at the moment, the review group can only watch developments. However, my understanding is that that issue will be included as a heading or sub-heading, whatever the group decides.

I will push you both a bit further on tenancies. I attended the Dumfries meeting, which was a free-flowing and helpful discussion. However, tenants whom I represent in South Scotland have expressed concern about feeling excluded from the process.

You are talking about the possibility of a wider remit. My colleague Alex Fergusson highlighted points on Richard Lochhead’s announcement on the right to buy, which the Scottish Tenant Farmers Association has interpreted as meaning that that is back on the table. We do not need to debate exactly what was said, but I feel strongly that, in view of the wider remit that you are discussing beyond the six work streams, it is important that the views of tenant farmers on an absolute right to buy should not be excluded from your consideration. That right is specifically to do with land reform, not tenancies, which is what the tenant farming forum is considering.

Did the tenants whom you represent feel that their views were not listened to at the time of data collection or that the group’s decision was not the one that they wished?

It is not that their views were not listened to at that time—I made the point about the Dumfries meeting—but that they now feel a sense of exclusion. It was a difficult winter and they gave up their time to go to the meeting or to make submissions. Some of them are in a difficult situation and asked for their submissions to be made anonymously. However, they now feel marginalised from land reform. A small number of tenants have reflected that to me, but I want to highlight the point. That is as much as I can say.

We listened to tenant farmers in various fora and contexts and we got submissions from them. We handled the matter in the way that we did. That is in the past. On how we will handle it in future, as Robin Callander said, we will pick it up and monitor it. It is up for discussion whether we will be able to take a lot of evidence in the second phase.

It is a big remit if we are to do it justice. It is a challenging project and the timescale for delivery might be seen to be short.

The group is not withdrawing into a bunker. In developing its analysis of the issues and of the frameworks that it is addressing, it will want to speak to various people about various things to find out what it needs to know to understand particular things better. However, that will be more at a generic level than at an individual level. The group will be doing quite a lot of simple fact finding. The analysis in its report needs to be based on information, rather than just opinions. Someone will go to see the Law Commission, for example, and someone else will go to see another body on another topic.

The issue is a prominent land reform issue in Scotland and the committee will not ignore that. It is in the frame.

You are talking about the tenancies.

Yes.

I will wrap up this session by making a couple of points. Since the discussion has moved up the agenda, and the cabinet secretary is setting up a review of the tenancy issue and so on, quite a lot of work will be involved. However, the tenant farmers are suggesting that a radical move, such as the absolute right to buy, should not be carried out in isolation but must be considered in the context of the land reform agenda. You say that you will keep a wary eye out for what develops. It may well be that that review reports before you issue your final report. Could you comment on that?

I do not think that that point applies only to the issue of agricultural tenancies. As you know, many of the issues around land reform have a sort of political sound to them. The Land Registration etc (Scotland) Act 2012, for example, was a piece of land reform. It is an on-going process. Similarly, the Aquaculture and Fisheries (Scotland) Act 2013, which deals with district salmon fishery boards, involves rights, interests and land reform in that sense.

I acknowledge the convener’s long-standing involvement in and great knowledge of the land reform debate. One of the features of that debate is that it goes up and down, which is not helpful. You will remember that the land reform policy group that was set up under Lord Sewel started to provide the wider strategic analysis in the way that it broke up the topics into issues involving law reform and so on. Then, the group was disbanded. The officials work through the boxes until there are none left, and we wait until issues arise in a conspicuous enough way before we set up something new. We have bodies such as the Lands Tribunal for Scotland and the Law Commission, but we do not have a body such as a land commission, or whatever you might call it, that could maintain a focus on these issues. This group has had discussions about that concern. Its appointment period runs to 2014, which means that you have a group that puts a report out and then goes home.

Before you go home, I should say that the STFA also believes that the Scottish Government must undertake a study of Scotland’s land tenure as a matter of urgency by either broadening the land reform review group’s remit or setting up a land commission.

Ah.

The point is made that you see your time and area as being limited. Do you have a final thought on that at the moment?

It has been refreshing and helpful for me to have a new perspective since Robin Callander has been engaged with the group and the group has become a team of five people. The question has always been how we cope with such a huge topic and remit. At first, when we had three people, we dealt with that by making it manageable in one particular way. In the past couple of months, people have been saying that we are not looking at this or that. It becomes a bit of a shopping list, which is not very helpful and not a coherent way of progressing. We will offer and hope to develop a coherent narrative that will enable us to see how issues that are brought to our notice fit into it. I think that that will be helpful as we go forward.

We look forward to that.

When we first took evidence from tenant farmers two years ago, we redacted much of the contact details from the submissions that we received because they were not directly relevant to the Agricultural Holdings (Amendment) (Scotland) Bill, but there were deep concerns. However, some tenants who have attended public meetings and stated their views have expressed concern that they are now exposed with regard to their landlords and their agents in some places, and that the uncertainty among tenant farmers has increased because of the Moonzie and Salvesen judgments, as I mentioned in a question in the chamber yesterday.

You can ensure that evidence that is given in private remains so if that is what the people who gave it wish, but can you reassure people who have given oral evidence at a public meeting that there will be no comeback for doing so and that the review group has the force to back that? I recall that, when the crofting commission met in 1883, the witnesses were assured that there would be no retribution from landlords. Can we be assured of that today?

Yes. In some cases, we took oral evidence from tenant farmers entirely in private. It was a closed meeting in which nobody else was there apart from members of the group. Some tenant farmers have taken part in a public meeting—as in the Dumfries case—but I assume that they were careful about what they said because it was a public meeting. We are very conscious of this issue and are very careful not to make public anything that would be damaging to people.

It is worth noting the sensitivity about the issue.

Absolutely—we consider that.

I think that Alex Fergusson has a question on your current focus.

A lot of the subject area that I wanted to cover has been covered in the opening discussion. However, I want to press you a bit further on the work streams and your slightly expanded role. You have already explained that you are no longer fixed on the six work streams, that the marine aspect will come in as well and that a slightly broader approach will be taken generally. You rightly referred to the huge remit that you have and the limited timescale. Are you happy that, with the expansion of the group to five members, you have the skills and resources that you need—or at least access to them—to deliver a substantive report in the timescale that you have been given?

I certainly hope so. We can differentiate roles better because we have five people, which I think will be helpful as we go forward. We also have a team of 13 advisers, who make openings into other networks and so on as well as giving us very good advice. We had an excellent meeting yesterday in Inverness with them, so things are moving forward well. We are also going to commission papers from people. I feel that we have access to as much information as we can use, but Robin Callander might have a different perspective on that.

We feel that we are getting the access to people that we want. As a specialist adviser, I regard our task as a daunting challenge but one that is well worth going for.

In light of yesterday’s meeting, can you enlighten us on how you intend to proceed? It may be too early in your review to do that.

10:45

It is too early to say much about that. The group has signalled before that it is happy to come back to the committee at any time.

The group has a list of six topics, but we could turn that into 20 topics—we did that in the confidentiality of our discussions—or even 40 topics, depending on how the review is structured. I am being slightly hesitant, but if land is property, there are bigger issues with property in urban Scotland, such as vacant and derelict land and housing to consider, if we are to take a systematic look at the issue. We have access to people who know more about that than the members of the group do. The group is keen to put all that into a coherent framework that identifies and flags up the issues.

As I have said, we will be able to pursue some issues down to a level of detail. As you all know, land reform is not only about property rights but about the support that goes in conjunction with the delivery of any reform system. Therefore, the question of support for communities in particular will be another key aspect of the review.

Thank you very much for that. I take the liberty of suggesting that, once you have identified your intended framework and process, it might be useful for us to be made aware of that.

I support Alex Fergusson’s comments. This morning has been enlightening on the subject of the group’s broader remit. It would be helpful for members and other interested people to have a clearer idea of the group’s direction.

I want to ask about community ownership. Land patterns in Scotland are such that 16 people own 10 per cent of the land and 432 people own 50 per cent of the land. When the group was established, there was an aim to increase diversification and to challenge some of those numbers. So far, community ownership has been seen as the main vehicle for that, but how will it achieve that? How will you address ownership of different types of land, such as forestry or farmland? Is diversification still an aim of the group?

It is.

An issue that a community will be conscious of is what is meant when one refers to community ownership. What is a community? Is a community as defined in one piece of legislation? The focus at that level is on local and neighbourhood communities, but there is clearly another level at local authority level where, for example, communities own assets together.

When the local level is examined, it is important to consider community ownership. Where I come from, there is a community business and everybody on the electoral roll automatically gets to vote in five local people who run the business on behalf of the community. That, to me, is a community business—it is inclusive, democratic and so on. However, if people in a locational community are setting up an organisation to promote the common good, for example, but a subscription must be paid to join it, does that become a club because it is excluding people? If society decides to adjust the balance, for example by local authority asset transfers, it is important to see community ownership as part of social ownership. There is a wide range of social ownerships that might not fall into particular definitions. One that the committee will be familiar with—it has come up time and again—and which the convener takes an interest in is trust ports, which are fascinating long-standing social institutions of harbours in particular towns.

The group will try to provide that analysis. There are many aspects to our society—where a broad local community buys its football club, that is a form of social ownership—so we need to set things in context.

Another point is that there is now the notion of a target for the area of community ownership. How is it being defined in relation to that, and how is it being measured? We hope to approach all those topics in a systematic way and provide a robust and factually sound analysis.

You talked about the definition of community, which can include communities of location and communities of interest. Will the group consider the broader understanding of what community can mean? You talked about societal ownership, but there is also a debate about how communities are defined.

The inquiry has a public interest brief, so it is looking at levels of public interest. Some would define certain types of non-governmental organisation as communities of interest. They are legitimate property owners, but such ownership would not necessarily be construed as social or community ownership.

We will get more chances to discuss that, no doubt. Claudia Beamish has a supplementary question on the issue.

It is actually a supplementary to Alex Fergusson’s question about the work streams. Is it appropriate for me to ask it now?

Yes, please do. Let us deal with the process issues now. There is another one to discuss next.

I was interested to see that, in the work streams, you highlight the possibility of a land agency. I seek clarification of that, because I feel a little bit confused about its context. Your interim report appears to compare that approach to the other

“proposals coming from other parts of the corpus of submissions and from the evidence collected during the Group’s visits.”

The interim report reveals some attraction to the idea of better planning and better liaison between landowners and communities. Do you see better planning and consultation as an alternative to possible arrangements for a land agency with appropriate powers, or are those things complementary?

What is discussed at that point in the interim report is whether we are dealing with one idea or with a range of different ways of approaching things, all of which have come under a similar title. The term “land agency” came up in many different contexts in the submissions that we received and it meant different things in different contexts. However, that does not mean that there was not an overarching issue and concept behind it all. Part of the differentiation will involve clarifying what the different ideas were.

As always, the question of how the idea fits in will depend on the overarching framework and the perspective that we take on the overall picture. The land agency idea is being picked up by other organisations as well. I cannot see it not being part of what we are going to look at, but it is too early to say whether it will be a topic in itself or whether it will be incorporated in other topics.

The committee will be familiar with the appreciation that existed in many communities for the community land unit, which was part of HIE, and the relationship between that unit and the Scottish land fund. I am sure that many of the committee members and the convener will know how the Highlands came to be defined by the particular boundary. I live just on the other side of it, in a highland environment that is nevertheless not part of the area, and therefore our community does not get access. There is a long-standing issue that comes up in a range of contexts. There was an attempt to set up a Scottish Enterprise community land unit. It flickered briefly and then disappeared. You will be aware of the issue of the lack of a social remit for Scottish Enterprise in that context.

However, as Alison Elliot said, it is part of a wider question about how to provide support, and I would like to supplement what she said. Some members may remember that, around the time of Lord Sewel’s inquiry, he instructed various public bodies or parts of Government to come up with a code of conduct, if I can call it that, for how they engaged and dealt with communities. Indeed, there were debates with the Crown Estate Commissioners before they, too, adopted that approach. That is an example of a constructive thing that was done at that time that helped the relationship with communities.

How will you engage with ministers in practice? Will you be updating them on the direction of travel, or will it be a case of getting on with the work and engaging with them only as you move into phase 3 or, indeed, when you present your final report?

We will have a meeting with the minister in September. The intention is to have regular meetings, although it is not yet clear exactly how frequent they will be. The minister has been good at giving us our independence and ensuring that we are supported, but he is not directing our thinking, which I hope will continue. The intention is that we will, at the end of December or beginning of January, give a heads up to ministers on where we are going with the draft final report.

I will ask about issues that you picked up along the way. What evidence has the land reform review group heard on current models of land taxation?

The ODS Consulting report cited comments from the submissions—I cannot remember how many there were—on land value taxation, which were received partly because the call for evidence had identified a list of suggested questions that people might want to pick up. Unfortunately, an awful lot of people took that as being the framework for the set of questions that they were expected to answer, which was not the intention, so we got a lot of responses on that. It was also pretty evident from the responses that there was a variety of interpretations of what land value taxation actually is.

We did not have discussions or meetings with people who raised the issue, nor were overtures made to us about taxation or about land value taxation in particular, other than what came in the submissions.

I am aware of the major evidence from Scottish Land & Estates, which is opposed to any thought of such taxation, but I am also aware of the discussions that the Scottish Green Party recently had about land value tax. In the Sewel period, it was said that the subject “requires further study”. That phrase was pertinent 10 years ago and more, but surely it could not be pertinent now. Will you therefore look at some model of land value tax in your report?

Again, it is a question of looking ahead at how it would fit into the framework that will be developed. Robin Callander may have better ideas.

As I said earlier, the processes of an independent committee are not as smooth as they are in a parliamentary committee, but one of the greater flexibilities of an independent committee of inquiry is that one is not so constrained by the evidence, so that where there are gaps in the evidence or where issues have been raised and the group needs to investigate topics, those things can be pursued. That is why the group is keen to identify immediately a range of people to whom it needs to speak about a range of issues, to inform the committee properly.

We look forward to hearing from you about that.

11:00

I ask you both to comment on the extent to which human rights and the European convention on human rights have been taken into account. How might public interest be demonstrated with regard to future land reform? You have covered the second part of the question to some degree, but I invite any further comments.

We picked up that very refreshing perspective early on. In February, we had a public meeting at part of the gathering in Glasgow at which we considered land reform and human rights. We have been in touch with Alan Miller since November 2012 on the subject. We recognise that the issue of human rights arises through a variety of different approaches to land and communities. As well as the ECHR, there is the United Nations International Covenant on Economic, Social and Cultural Rights, and those rights are all relevant. We will pursue and not lose sight of that. In some ways, human rights and public interest are two sides of the same coin.

I agree. The dialogue between the Scottish Human Rights Commission and the land reform group is interesting as regards where the commission sees issues around property and land sitting within its national action plan. It is a constructive area of debate.

You will be aware of the ruling on the Salvesen v Riddell case. I believe, Alison, that you and the convener were both at Community Land Scotland’s conference, at which Professor Alan Miller said that ECHR should not be seen as a red card to land reform, community ownership, the possible right to buy for tenants or any such issues. Does either of you have comments on that? The point is important in view of the recent court ruling, and I want to highlight it.

Indeed. That is something that we have been aware of right from the start. ECHR has the dimension of the public interest in it. Alan Miller is very alert to the trends in the European courts on that and he says that the public interest dimension is becoming more and more important.

Defining the public interest is a challenge, and it must be defined in particular contexts. The land reform review group has a public interest remit. Therefore, everywhere it goes, whatever the list of topics is and however it is structured, it must say, in making a recommendation, what the public interest is in making a change, even if the matter is unrelated to human rights issues. Group members might feel that there should be change in a certain area, but do we have the information and facts to substantiate public interest? We will be looking into that.

What evidence has the group heard on common good? What specific additional work will you be carrying out on that during phase 2?

There was not much reference to common good in the evidence that we got, although there was some from particular quarters. There is a wider interest in it—Robin Callander is familiar with the issue.

Members will be aware that common good is covered by the forthcoming community empowerment and renewal bill. As a specialist adviser, fresh on the spot, I am due to catch up with that subject. The group will monitor the issue and will be involved in dialogue on it, which it will evaluate and then decide whether it has further comments to make.

I suppose that my question is about process. How can we bring all the things that are going on—the land reform review group, the tenant farming forum, the forthcoming review of tenancies and now the community empowerment and renewal bill—together in a coherent way?

All of them in one way or other relate to the property system, which is itself coherent. The framework itself is about land and land is property. As I have suggested, one advantage or benefit of looking at the picture in the round is the ability to relate all those things to one another. For example, the committee has been looking at the Aquaculture and Fisheries (Scotland) Bill and is now looking at land reform; the group’s aim should be to bring all that into a coherent framework and, depending on each issue and the level to which it is taken, to say where things are, point to where they should go or suggest how they should change.

Is the group’s role to explain how those things come together?

Yes. If the group is to make sense of its own remit, it needs to do that.

Another issue is timing and how the work goes forward in parallel with other processes. We are very closely involved with the community empowerment and renewal bill team in clearing those lines.

Angus MacDonald has a few questions on one of our favourite topics.

Good morning. At the recent Community Land Scotland conference on Skye, Dr Elliot stated her aim to commission further research on the Crown Estate. The Crown Estate has been mentioned this morning; what engagement has the group had with it and what role could Crown Estate land play in future reform?

We have received a submission from the Crown Estate as part of our call for evidence and have discussed it on our visits to the Highland Council and the Galson estate. However, this panel includes someone who—I say with due respect—might well know more about the Crown Estate than anyone else in the room.

Of the range of topics before the group, the Crown Estate is interesting because there is a substantial volume of existing evidence. This committee, the Treasury Committee, the Scotland Bill Committee and the Scottish Affairs Committee have all taken evidence on it, and the group has the advantage of being able to access all that information for its analysis. Committee members might recall that one of the issues on which the Scotland Bill Committee reached consensus was a change to the situation with the Crown Estate. Indeed, it was also a consensus issue on the Scottish Affairs Committee. The group has an advantage in that I have already read all the evidence.

That is helpful. The Crown Estate, including its commissioners, will be giving evidence in September, and we will certainly raise the issue then.

I am intrigued by Dr Elliot’s comment about Galson. What was the Crown Estate’s connection in that respect?

The connection related to the development of a wave energy installation just offshore of the estate.

I think that I know what you might be hinting at. If one were to examine the impact of different land reform measures, one would find a conspicuous and widespread consensus on measures relating to the Crown Estate. Because such measures could immediately make a huge difference to a lot of coastal communities and other people, the topic is profoundly important in the scheme of things.

Absolutely.

I want to turn to post-legislative scrutiny and the difficulties that have arisen as a result of—shall we say—imperfections in various aspects of the Land Reform (Scotland) Act 2003. In thinking about, for example, the difficulties that were faced by those who made the hostile bid for the Pairc estate and the fact that it has ended up in the court for years, I have to wonder about people’s capacity and ability to achieve their goals. Given that few mainland crofting communities have bought land, what can we learn from the Pairc Community Trust’s experiences about the provisions in part 3 of the 2003 act and what changes might the LRRG suggest in that respect?

The group’s advisers include crofters, and the issue will be taken up and discussed with them as we move forward. There are various reasons why a community might not pick up such opportunities, and we have discussed places where such things might have happened but did not. Indeed, we have been talking to our new member Pip Tabor from the Southern Uplands Partnership in the south of Scotland about the issue, the opportunities that are available, people’s knowledge of it and so on.

The difficulties with the 2003 act are obvious, but it is interesting that one of the functions has been to bring people to the table in ways that they would not otherwise. It is, of course, difficult to pin down why that would not have happened otherwise, but the belief is that other things have happened and other communities have bought land simply because of the existence of the legislation, if not through it. That makes it difficult to carry out the kind of post-legislative scrutiny that you mentioned.

With regard to crofting communities—leaving aside the south of Scotland and, indeed, the bulk of Scotland—[Interruption.] I will leave them aside for only a second, and I remind members that I am the sole Highlands member on this committee. [Laughter.] I am interested in people’s confidence and capabilities. Has that issue crossed your path and have you made any remarks on it that you might care to build on?

Are you asking about the confidence of and capacity within crofting communities?

Yes, because the mainland seems to be very much bereft of major movements in that respect.

We have not looked at what is happening on the mainland. However, I can say that in the crofting communities on the Western Isles, where we have met many people, that capacity and enthusiasm definitely exist.

So those things should not be missing in the Highlands.

No. The fact is that people have assets and capabilities that they do not know are there until the opportunity arises.

Now that the committee has woken up, I will ask Claudia Beamish to ask the next question.

I wonder whether, in addition to confidence and capabilities, awareness is an important factor with regard to the possibilities of community ownership. Given that much of rural Scotland—not just the south of Scotland and not just the Highlands—is neither under crofting tenure nor well populated, how will viable communities with an appetite for collective acquisition be encouraged and supported to buy land?

As some committee members will be aware, I am involved in Birse Community Trust, which hosted the then Rural Affairs Committee’s first ever visit outside Parliament. Birse Community Trust has been going for a long time and is based in Deeside, where it has acquired significant amounts of land. One might draw a line from us to the Western Isles, in that we had clearances in our area, although ours happened earlier and were less extreme.

11:15

As you said, a big issue is the confidence and ability of communities. That is why the community land unit was so successful and why there are now more community buyouts. Having been actively involved in rural development since the early 1980s, I can remember Rural Forum Scotland’s first ever visit to our part of the world and how it struggled to find somewhere to visit. However, my perception is that, certainly in rural areas, there is something up every strath and glen, but not every community is at that stage. A community needs to start by functioning as a community—there needs to be a community body and somewhere that people can meet as a community, so some communities have gone further than others.

Land values are obviously a major obstacle. The whole-estate buyout is very much a product of the circumstances in the north-west. The phenomenon of buying whole mixed estates is not likely to be repeated widely because of land values and other factors.

Although I appreciate that point about land values—it is an important point—it has been said to me by some that there is little appetite for community purchase of land in South Scotland, which I represent and which is obviously a very large area containing many rural communities. To what degree is that an issue about the awareness of the possibilities?

Let me give a quick example. We learned during our visit to Gigha that, before the people there had been to Eigg and found out what the possibilities are and what support HIE might offer—as Robin Callander highlighted, HIE has a different remit—they were not really aware of those possibilities and, by their own admission, were not necessarily confident about going forward with a purchase. To what degree might the lack of knowledge and support in South Scotland be a factor?

I am sure that it is.

When I spoke to Pip Tabor yesterday, he told me about the intensive work that has been done with the community in Ettrick Valley. We met that project’s development officer, who took the view that making people aware of the possibilities that exist is undoubtedly a large part of the picture.

We also need to give communities confidence. That requires support and is not easy even in modest projects. There is always a question about where the money comes from just to get a bid together, even for small-scale purchases. My community in Birse parish has been very involved in forestry, which is a land resource that is particularly suited for communities to use.

Let me just mention another two of the people who are members of our group. John Watt has some experience of HIE, so he has a sense of the kinds of support that are available. He is also a member of the Big Lottery Fund’s Scotland committee. As director of DTAS, Ian Cooke has hands-on experience of how communities can be encouraged, supported and resourced to take things on. I think that we have the information and hands-on experience to do something about those issues.

Following on in a lateral sense, I see that one of the land reform review group’s workstreams is on community energy, which was mentioned in earlier evidence on the first part of the group’s remit. Like a number of MSPs, I have had experience of concerns about the ownership of energy. Will you say something about the degree to which the group will be able to take forward that workstream? How do you see it progressing?

As outlined, the workstream was seen in the context of the kinds of support that communities need—that was the context in which it was proposed. However, as we said previously, I certainly hope that that will not be lost as we move forward and that it will take its place in the wider framework.

The next question is from Claire Baker. Sorry—pardon me, but I almost forgot—let me first allow a supplementary question from Alex Fergusson, who is also from the south of Scotland.

Indeed. It is the topic of the south of Scotland that I want to raise.

As Dr Elliot may recall, when we first met, I said that one of my real desires was for the benefits of community ownership to be spread more widely throughout the south of Scotland. I represent Galloway and the south-west. I am delighted to say that, since then, we have had a highly successful buyout by the Mull of Galloway Trust.

It struck me that, as Mr Callander said, when a community acts as a community and has a desire to purchase land, the trust model is a perfect example of how a community can take forward the purchase of land that it is interested in. However, I think that the process needs to be driven from the bottom up and that the Parliament and the Government should perhaps have the responsibility of ensuring that people are aware of the possibilities that exist. Let me modify an old-fashioned expression: you can take a horse to water, but you cannot make it drink; before you do that, however, you have to let the horse know where the water is.

Do you agree that, in general, it should be the Government’s responsibility to make people aware of the possibilities that exist, but that, to a certain extent, we must leave it to communities to act as communities and that they must have the desire to take forward a buyout?

Absolutely. The Government and its various agencies should do that, as well as voluntary organisations that are keen to explore such possibilities and share their experience. Community Land Scotland, for example, is very keen to talk to new communities that have not previously thought of buying land.

Your main point about the importance of there being a strong community in existence to begin with is extremely interesting. When we looked at instances of community buyout, I was interested to discover how often there was a cause that people had united around. In many cases, a steering group was already in existence before the question of buying out the community land came up. That pattern seemed to exist in many places.

Whether it would be possible to go in cold and say, “Hey, how about buying this piece of land?” is a moot point, because the process seems to work most naturally when a head of steam has been built up and people already have a vision for their community. Out of that vision may come a desire for ownership.

Your point about a bottom-up process is right. If we are talking about empowering communities and making them more resilient, we should not say, “This is the way you should be empowered.” It is for communities to make that decision.

I have a small follow-up question, which relates to the interesting phenomenon whereby the Scottish land fund provided quite a lot of the money for the Mull of Galloway Trust to pay another Government body—the Northern Lighthouse Board, the functions of which are a reserved matter—for the land to which Alex Fergusson referred. It is a bit like departments swapping money. Would it not have been easier if the Northern Lighthouse Board had just given the land away?

The transfer of public land is a big issue, as Robin Callander knows.

From Crown land to land that is held by the Scottish Government in various guises and local authority community asset transfers, we should be clear as a society about what resources we want to be held, in which ways and at what levels of community. I am thinking of the community of the realm—the community that is represented by this Parliament. Transfers, state aid rules, Treasury rules and certain conditions are issues that the group will aspire to analyse and comment on.

Good luck.

Thank you.

In the past few weeks, the Scottish Government has set a target for 1 million acres of land to be in community ownership by 2020. I think—although I might be incorrect—that the First Minister described the announcement of that target as symbolic.

Is it now an aim of the group to think about how we can achieve that? Do you think that the target is an ambitious one? Is it achievable? You talked about land values. The target sounds grand, but have you done any analysis of how it will be delivered? I think that it would double the amount of land that is in community ownership at the moment.

What I have asked in the discussion is: “What are the 500,000 acres?” I think that the 500,000 acres that have been mentioned are those owned by Community Land Scotland’s membership. However, many communities, including the one in which I live, own land but are not members of Community Land Scotland. The question is: what is one measuring and how can one measure it satisfactorily in future?

You will be aware that, as a society, we have not been good at measuring a number of aspects. I do not mean down to the level of the who owns Scotland project, but there are questions about land registration and information about owners that are important to communities, businesses, public sector bodies and all the rest of it. Similarly, we will be looking for robust information.

Personally, I take the target as an aspiration. It is a statement that it is good to increase community ownership and to analyse how we will get there. The group will take that into consideration—although not because it is the group’s responsibility to deliver that target. We will consider the types of community ownership, how much there is now and the potential for different areas to be promoted and developed. On the land value point, one could almost say that, as we move away from the north-west, each acre costs more.

Within the target, is there an aim to change private ownership in particular? Should we seek to achieve that, or is it irrelevant? You talk about diversity of ownership in terms of local authority, Government or Crown Estate ownership, but do you see it as part of the diversification of ownership in Scotland to consider how to change some of the figures that I gave earlier, such as the fact that 432 people own 50 per cent of the land? Is that part of the group’s aim? The Scottish Government’s target is to have 1 million acres in community ownership by 2020, but do the two issues relate to each other? Is one a challenge to the other, or are they completely different?

There is an analysis to be done. Private ownership is in the public interest. I do not know how many members are private landowners, but I have a house and 3 acres. We need to be careful of categorising, as there is a tendency to stereotype when one writes about such things. The term “landowner” is used in a certain way in various documents with the subtext that it means an estate owner. When we say “community”, there is a notion of what a community is, and yet the communities in urban and rural Scotland are incredibly diverse.

A vast number of people own property and there is a concentrated pattern of private ownership. One cannot avoid posing questions about that issue, but there are many routes to diversifying. For example, I mentioned social ownership. There are many forms of ownership that do not equate with the notion of community ownership, which is just part of how we achieve what might be called a more democratic pattern.

Will you examine international examples to consider how different patterns of land ownership have been achieved?

It is not so much a matter of considering how those patterns have been achieved. Members will be familiar with the remarkable differences between the situation in Scotland and that in most European countries. The origins of those differences reflect deep historical differences. However, it is instructive to go to other places—as many communities and people have done on other pretexts—because one sees an extraordinary level of local control, not simply through owning land but through the scale of responsibilities and revenue and through the way that localities co-operate to achieve bigger things, rather than centralisation.

11:30

I will comment on the target. When a target is set, there is obviously always a danger that we try to reach it with a quick win. I have heard it said that to reach the target we should concentrate on particular kinds of owners and ownership, but I take a different view. I was encouraged by the fact that the First Minister set the target, because it is seen as encouragement to communities take community ownership further and as an endorsement of that direction of travel.

I presume that the irony would not be lost on those who were present at the First Minister’s announcement of the target, when he mentioned that the large number of acres that the Ministry of Defence owns in Scotland is part of the picture.

Yes.

My questions are also on the target of achieving 1 million acres of community-owned land by 2020. To reach a target, we have to know where we are starting from. Robin Callander has already suggested that it is difficult to measure what is community-owned land now. Does either of you have a view on how much land is currently in community ownership? How can we measure that? How can we judge whether we have reached the target? Are 1 million acres of land already in community ownership, in which case the First Minister’s statement does not mean anything?

There is no robust information.

I do not think that the statement does not mean anything. As I say, it is an expression of an aspiration to increase community ownership.

You might be aware that HIE has looked into the issue in the past and that, more recently, DTAS tried to accumulate information on community assets, including buildings as well as land—for many communities, the asset may be a building, but that is often more profound than having lots of acres. That work should be built on to provide more robust information.

DTAS found that when we add up the value of the existing assets—Community Land Scotland has done that in part—we start to see the rural communities, acting in their own right, being of significant value to the economy. We see the same elsewhere in Europe, where such exercises have been done more explicitly.

Rural communities tend always to have been seen as an interest group rather than as a sector of land use and involvement on their own account. It is helpful if rural communities are recognised collectively, because they may get more attention and resources and there may be a more systematic approach.

Am I correct in saying that Community Land Scotland estimates that members of its organisation control 500,000 acres of land?

That is why I suggested that the target came from doubling that figure. As you know, its members represent a huge component—but only a component—of community land ownership in Scotland.

Some communities that own land are not members of that organisation.

Yes.

For example, the Assynt Crofters Trust, which accounts for another 20,000-odd acres, is not a member of that organisation. There is a need for more information.

We have had a good discussion. Members have explored the first phase of your work, which has been wide ranging. It must be tempting to go down various avenues, but you have highlighted that there is a time limit and that your work is part of a process. We welcome this exchange of ideas and will try to have another one fairly soon. We thank you both for your evidence.

Thank you very much. Before we leave, we suggest that it might be helpful if our special adviser has the opportunity to consult the clerk to the committee to keep us in touch with how the committee’s work is progressing.

Yes, that is a good point.

That would be extremely helpful, given the committee’s agenda and experience.

Thank you for that suggestion and for your evidence.

This is the committee’s last meeting prior to the summer recess. I take the opportunity, on behalf of the committee, to thank all those who have given written or oral evidence. I also thank the Cabinet Secretary for Rural Affairs and Environment, Richard Lochhead, the Minister for Environment and Climate Change, Paul Wheelhouse, and all their officials, as they have helped the committee greatly in its scrutiny of bills and other business. I thank the official report, broadcasting and the clerks for the huge amount of work that they have done to ensure that things have worked well over the past year.

The Rural Affairs, Climate Change and Environment Committee will convene again in September after the summer recess. People can keep up to date with the news on land reform and with the committee’s other news on its web page and Twitter feed.

11:35 Meeting continued in private until 12:35.