Long Leases (Scotland) Bill: Stage 3
The next item of business is stage 3 proceedings on the Long Leases (Scotland) Bill. In dealing with the amendments, members should have before them the bill as amended at stage 2, which is SP bill 7A, and the marshalled list, which is SP bill 7A-ML.
The division bell will sound and proceedings will be suspended for five minutes, should there be a division. The period of voting for the division will be 30 seconds.
Members who wish to speak in the debate on the amendment should press their request-to-speak button.
Members should now refer to the marshalled list of amendments. It would be helpful if members would take their seats so that we can have a bit of order in the chamber.
Section 1—Meaning of “qualifying lease”
Amendment 1 is in the name of Jim Hume.
I rise to speak to my amendment—the only amendment.
The term “common good” was recognised in Scottish law as far back as 1491, allegedly, and, more recently, in the Glasgow Airport Rail Link Act 2007, the Housing (Scotland) Act 2010 and the Local Government etc (Scotland) Act 1994. There is, therefore, not much doubt that we all know what “common good land and assets” means—assets that are held for the common good of our communities and people.
In a recent letter to the Rural Affairs, Climate Change and Environment Committee, Stewart Stevenson said:
“I do not consider we have enough evidence in relation to the common good that the bill will impact adversely on the public interest”.
However, in evidence, the number of common good properties that may be affected by the bill changed from four last year to six, and later changed to nine. It became clear that there is a lack of knowledge, and therefore evidence, of where common good assets are and how many there may be. That lack of knowledge is evident at national and local government level. Given that the number grew to nine in a short time, there is no guarantee that there are not other common good properties that might be adversely affected by the bill.
The minister told the committee that there is “not absolute certainty” about how many common good assets might be affected. That uncertainty only adds weight to the importance of the general principle of my amendment to protect common good property.
That does not mean that the amendment would put a burden on local authorities. At stage 2, Annabelle Ewing seemed concerned that my amendment would be costly to councils by making them hold a register of common good assets, but the very opposite is the case. The amendment would simply give councils the powers to protect common good assets that are entrusted to them in safekeeping for their communities, not a burden of a new register. It would protect local authorities’ ability to protect common good assets that are entrusted to them in the interest of our communities and the common good of our people.
I will move my amendment to protect common good assets for the common good of our people against any unintended consequences of the bill.
I move amendment 1.
10:15
A number of members wish to speak. I ask them to take around two minutes.
I do not think that I will need two minutes.
I still believe that the issue of common good is a matter of considerable complexity and that the number of common good leases throughout the country remains unclear. That concerns me. Unfortunately, I was unable to attend the stage 2 committee meeting on the bill, but, if I had done so, I would have supported Jim Hume’s amendment, which would have resulted in a 5:4 division, which would have been a little closer than the 5:3 division that there was.
Having previously accepted the view in the committee report that, although concern remains about the bill’s impact on common good assets, it should not provide for an exemption, I now think, on reflection, that that view should be reconsidered in order to avoid possible further conflict and the need to revisit the issue in the future, should it become a genuine grievance. I acknowledge that complexities would arise from including an exemption in the bill and understand the minister’s decision not to lodge an amendment in relation to the common good, as it is likely to impact on only a very few cases, but I feel sure that the minister would agree that complexity alone should not be a valid excuse for failing to amend legislation where that is necessary, and we should not be encouraged to agree to legislation on issues that remain unclear, as they do in a number of common good cases.
I am persuaded that the amendment is in the public interest and I therefore support it.
Scottish Labour is glad that the relationship between common good land and ultra-long leases was debated at length in the committee. A considerable amount of evidence was received. In fact, due to the lack of response from some local authorities, the committee pushed matters and in the end received responses from all the local authorities. Seeking and receiving clarification has been in the public interest.
At stage 1, the committee was undecided on the issue of common good exemption. At stage 2, we supported Jim Hume’s amendment from a desire to protect the public interest. The Waverley market issue has now been resolved, and the only long lease that will transfer to a private landlord—Buccleuch Estates—has more than 800 years to run. There would, in effect, be no public interest in exempting the common good for that specific case.
I accept what the member says about the Buccleuch lease in the context of common good cases that we know about, but we know that there is no clarity about the situation. Would she therefore accept that there is still a need to protect the common good? That is what she talked about in discussing the amendment at stage 2.
I agree with the member that there is a need to protect the common good, but I am coming to the point about whether there are likely to be any other ultra-long leases.
The other eight leases will transfer to public ownership, protecting the public interest, so there is not a reason for exemption. After consideration and discussion, Scottish Labour is of the view—this answers the member’s point—that there is very little likelihood that further parcels of common good land that are subject to ultra-long leases have not been identified and that, if there are any, the identified parcels will not be of great value. Therefore, we are not minded to support the amendment.
The member will recall that the minister stated that there was uncertainty about whether there were other ultra-long leases and that she herself stated that protecting the public interest was important and that the amendment, which has not changed since stage 2, would
“provide an effective way of doing that in relation to those parcels of common good land with long leases that have been identified.”—[Official Report, Rural Affairs, Climate Change and Environment Committee, 16 May 2012; c 940.]
Why on earth has the member done a U-turn at such short notice?
It is not a case of doing a U-turn. We believe that, as all the local authorities have responded to the question on ultra-long leases, it is extremely unlikely that other such leases exist. We decided after much deliberation and discussion within our party and with others that we are not minded to support the amendment.
Before I call Annabelle Ewing, I remind members that any conversations should take place outwith the chamber. Members may want to catch up with colleagues before the recess, but I would appreciate it if they showed courtesy and did so outwith the chamber.
On the issue of U-turns, it is important to note that the committee unanimously concluded at stage 1 that it did not wish to include in the bill a provision on the common good. Perhaps Mr Hume should reflect on that for his further comments.
I said at stage 2 that an equivalent amendment by Mr Hume would introduce legal uncertainty in light of the lack of clarity on what is or is not—or, indeed, never could be—regarded as common good land, given that there is no definitive list of such land. That was my key point.
It should be recalled what the bill’s fundamental purpose is, which is the simplification of Scots law on property by the automatic conversion on a specified date to ownership of land that landlords, including local authority landlords, have already granted de facto ownership of to tenants holding that land on a long lease as defined. The proposed amendment would cut across that fundamental purpose and create legal uncertainty.
It is perhaps helpful to say to Mr Hume and Mr Fergusson that I understand that they wish to have a discussion on the common good, as we all did in the committee, and find a vehicle for taking it into account, but the bill is not that vehicle, for the reasons that I have stated. The vehicle may be the newly announced proposal for a community empowerment and renewal bill. The consultation document on the proposal has made it quite clear that the issue of common good is to be considered. I suggest to the two members that that proposed bill would be a better vehicle for consideration of the more general operation of common good issues.
I call the cabinet secretary.
Thank you for the promotion. [Laughter.]
It is only a matter of time.
There is not long enough, but there we are.
Common good has been regularly raised as an issue throughout the bill’s proceedings. There has been some criticism that the information provided by local authorities to the Government of the number of ultra-long leases of common good land has changed as the bill has gone forward. That has been referred to in the debate. However, I do not think that that is surprising. The landlord in most ultra-long leases has little involvement in the property. Typically, the rental is very low—it is generally under £5 a year and it is often not collected at all. Therefore, local authorities have little day-to-day interest, financial or otherwise, in ultra-long leases where they are the landlord. Other landlords of ultra-long leases also have little day-to-day interest in them. That is, in brief, the point of the bill.
However, given the importance of common good land, we have gone to some lengths to obtain information from local authorities. Authorities have identified nine ultra-long leases of common good land. The three in Dumfries and Galloway, which have been referred to in the debate, are for 999 years and were let some 200 years ago. That is a very common length for an ultra-long lease. The lease in South Ayrshire is to a trust and relates to a museum. In one of the leases where Glasgow is the landlord, another local authority is the tenant. The two parkland leases in Glasgow seem to relate to recreational facilities and to police activities. The lease in Edinburgh is very small and covers a few square feet that gives someone access to their house. The lease in Stonehaven is to a recreational body.
The key point is that ultra-long leases should convert under the bill, unless there is a good reason why they should not. It appears that, in leases of common good land, the real interest is already held by the tenant, which is in line with what we would expect in ultra-long leases. Compensatory and additional payments are payable by tenants to landlords under the bill. We will write to local authorities to say that any such payments relating to common good land should be allocated to the common good fund. Indeed, we have already prepared a draft of that letter for issue if the bill passes stage 3 and royal assent is granted.
As I said at stage 2, we have specific concerns about Jim Hume’s amendment, well intentioned though it is. It would exempt all common good leases, even those to a trust or a local authority. It is not clear from the amendment how common good status would be established, given that Registers of Scotland would not know that from the deeds that are registered with it.
It is also not clear what would happen if an ultra-long lease that had converted under the bill was subsequently found, after the appointed day, to be part of the common good fund.
As the bill stands, it is possible for any compensatory and additional payments that are received by the authority in respect of the land to be transferred to the common good fund. If the land converts and then it is discovered that it should have been exempt, it is not clear who would own the land. There are real difficulties there.
Mr Hume talked about lack of evidence—I acknowledge that there is uncertainty. We cannot eliminate that uncertainty today. Mr Fergusson said that the whole issue should be reconsidered. I agree with him.
I recognise the general points about the common good that were raised during the passage of the bill. We should reconsider the issue via the consultation on the community empowerment and renewal bill, which was launched on 6 June. The consultation asks specific questions about the common good. That provides a forum for examining this subject to ensure that all its undoubted complexities—we have established that this is quite a complex issue—are identified so that an appropriate solution can be developed.
It is worth reminding members that, under the bill, the appointed day is two years after the coming into force of the relevant section, so it is some distance in the future. It ought to be possible to consider this in the context of the community empowerment and renewal bill before we reach the appointed day.
We will continue to work with local authorities and others on updating common good registers. It is important that local authorities have good information on this subject and we encourage them to continue to improve their information. However, the Government cannot support the amendment and I invite Jim Hume not to press it. If he does press it, l invite the Parliament to reject it.
I will take this opportunity to put you back in your proper place—thank you, minister.
Thank you, Presiding Officer, it is always good to see Stewart Stevenson put in his proper place.
All joking aside, I think that this has been an interesting debate. There is still some controversy—[Interruption.]—I was getting a bit of an earache in my left ear there, apologies for that. If I may continue—[Interruption.]
I would appreciate it if you could, as we are running out of time.
It has been an interesting debate. I appreciate the minister looking into the issue and taking the matter seriously. I still have concerns. The most bizarre part of the whole debate has been the 11th hour U-turn by the Labour Party. Last month, at stage 2, Claudia Beamish said in reference to this amendment that
“it is important to protect the public interest, and the amendment would provide an effective way of doing that”—[Official Report, Rural Affairs, Climate Change and Environment Committee, 16 May 2012; c 942.]
Margaret McDougall also stated that the amendment would be a good way of protecting assets.
Does the member not accept that there have been developments since stage 2—that is what I highlighted earlier.
The only development that Claudia Beamish mentioned was that she had talked with her colleagues and some others. There has been no extra evidence since stage 2 and uncertainty remains over how many common good assets there may be.
Annabelle Ewing said that there would be legal uncertainty; that there is no definitive list of common good land; and that other bills might address the issue. However, we have to address issues using the bills that are before us. I repeat that local authorities could have used an exemption in this bill to protect common good assets.
I admit that Stewart Stevenson has been helpful. He mentioned that any payments that occur should go back to common good funds and he said that he would write to local authorities about that. That is welcome but, of course, it does not guarantee that local authorities will do it. Therefore, at the risk of being the most unpopular member of the Scottish Parliament—at least this morning—I will press amendment 1.
The question is, that amendment 1 be agreed to. Are we agreed?
Members: No.
There will be a division. I suspend the meeting for five minutes.
10:30
Meeting suspended.
10:35
On resuming—
We will proceed with the division.
For
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Davidson, Ruth (Glasgow) (Con)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Harvie, Patrick (Glasgow) (Green)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Rennie, Willie (Mid Scotland and Fife) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Against
Adam, Brian (Aberdeen Donside) (SNP)
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Helen (Cowdenbeath) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (North East Scotland) (SNP)
McDougall, Margaret (West Scotland) (Lab)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Robertson, Dennis (Aberdeenshire West) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (SNP)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 17, Against 93, Abstentions 0.
Amendment 1 disagreed to.
That ends consideration of amendments.