Correct.

That decision will be made by Transport Scotland as it goes through the process. As stated in the letter that I sent you, Transport Scotland will go through all the procedures that you have just outlined and will give the person the chance to put their case on the incident. Subsequently, it will be for Transport Scotland to decide whether there should be a temporary or permanent removal of the entitlement to free travel.

That would be an operational decision for Transport Scotland to make.

11:15

This SSI is about during the transport, which is when they are on the bus.

That figure is 1 per cent of the cost of the entire scheme. It may sound like a large figure in its own right, but a hell of a lot of work goes on behind the scenes in administering the scheme. If the committee would like a proper breakdown of that sum, however, I would be more than happy to provide that if we can do so.

Amendments 116 and 117 are technical amendments that follow the enactment of the Land Reform (Scotland) Act 2025. They will update the bill so that the Scottish Land Court’s jurisdiction correctly reflects the Small Landholders (Scotland) Acts 1886 to 1931 and the small landholdings provisions in schedule 2 to the 2025 act. I encourage members to support them.

Amendment 157, in the name of Ariane Burgess, seeks to expand the competence and jurisdiction of the Scottish Land Court to include a wide range of environmental matters. I acknowledge that the Scottish Government has indicated that consideration will be given to the expanded Land Court taking on new functions in relation to cases that arise under the Aarhus convention at a future point, but we have intentionally not sought to do so at this time. I will explain why.

First, the merger of the Scottish Land Court and the Lands Tribunal for Scotland will take time to complete. It will require the development of a new set of court rules, the introduction of a new case management system and the transfer of staff and members. Adding such a substantial new set of responsibilities at the same time could have a serious impact on the effectiveness of the new court. Such a significant change would merit a specific consultation process with all stakeholders before a decision is made.

Secondly, we do not consider it appropriate for the expanded Land Court to take on the functions of a criminal environmental court, given the distinct procedural and institutional requirements of criminal proceedings. Such cases are appropriately considered in the sheriff court or the High Court, where there is already considerable judicial knowledge and experience.

Thirdly, although we acknowledge the calls from a range of stakeholders for improvements to access to justice on environmental matters, we have already made progress in that regard through the abolition of court fees for Aarhus cases in the Court of Session and the introduction of protective expenses orders, or PEOs, to limit legal costs. I note that the Scottish Civil Justice Council has agreed to hold a wide-ranging consultation this year on extending the availability of environmental PEOs, including to all relevant cases in the sheriff court and the sheriff appeal court.

The Scottish Government’s present position is that most environmental law matters can be dealt with effectively by the current civil courts and processes.

Finally, the bill allows for future extension of the competence and jurisdiction of the Land Court if and when such an extension is the right thing to do. That will ensure that a controlled and proportionate approach is taken that avoids overwhelming the newly merged court. In line with the committee’s recommendation in its stage 1 report, the Parliament will be able to give careful scrutiny to any such proposal, because regulations to make any change will be subject to the affirmative procedure.

Amendments 164 and 165, in the name of Ariane Burgess, are consequential to amendment 157, which would expand the competence and jurisdiction of the Scottish Land Court to include a wide range of environmental matters.

Amendment 164 concerns certain provisions of the Environmental Protection Act 1990. Statutory nuisance cases are heard in sheriff courts because they need to be dealt with quickly, locally and by courts that have long-established expertise in that type of work. Moving them into the national court could significantly weaken accessibility and, in practice, would require the Land Court to acquire physical court spaces and facilities right across Scotland, potentially driving up capital expenditure at a time when we are focused on controlling public spending.

Amendment 165 would expand the competence and jurisdiction of the court to include all matters under the Town and Country Planning (Scotland) Act 1997. The Court of Session exercises Scotland’s supervisory jurisdiction, and it is the established forum for questioning the legality of planning decisions. I want to be absolutely clear that the Court of Session is where such a statutory planning challenge properly belongs. That function does not sit naturally with the history, expertise or purpose of the Scottish Land Court, which has always been a specialist forum for crofting, agricultural holdings and rural land matters. Diverting planning challenges would fundamentally change the nature and character of the Land Court, which I have committed to preserving through the bill.

Although the likely increase in case volume arising from amendments 164, 165 and 157 is unknown, the Scottish Courts and Tribunals Service considers that the expansion of the court’s jurisdiction would have significant operational and financial impacts, and any such change would benefit from proper consultation before a decision was taken.

The Scottish Government’s position is that it does not see a compelling argument at this time for the creation of a special environmental court in Scotland or for expanding the competence and jurisdiction of the Scottish Land Court in the way that amendments 164 and 165 propose. I acknowledge Ariane Burgess’s reasons for lodging the amendments, but, for the reasons that I have just explained, I ask her not to move them.

Amendment 158, in the name of Ariane Burgess, seeks to prevent the award of expenses against a person who raises any “environmental rights action” or any subsequent appeal. I understand that the intention is to seek to protect someone who raises an action from having to pay the legal expenses of the other party, which could be substantial if the action was unsuccessful. However, it is not clear from the amendment what constitutes an “environmental rights action”, as no definition is proposed. As a consequence, it is a very expansive provision, which, when read in conjunction with amendment 157, may be liable to have unintended consequences. Environmental cases cover a very wide range—everything from lower-value nuisance disputes in the sheriff court through to complex judicial reviews in the Court of Session. Applying automatic cost protection across that whole spectrum would carry major risks.

Separately from that, it is important to recognise that the Scottish Government has already taken meaningful steps to address concerns about the costs to individuals who seek access to justice on environmental matters. As with amendment 157, I note that the Scottish Civil Justice Council intends to consult this year on extending the availability of environmental protective expenses orders to a significantly wider range of environmental cases. That includes the proposal that, if a PEO is granted, the maximum cap will be £5,000, although the court would retain judicial discretion to lower that figure. The Scottish Government is keen to allow the SCJC to complete its work in that area before considering whether any other reform is required. On that basis, I ask Ariane Burgess not to move amendment 158.

Amendment 159 seeks to include a definition of the Aarhus convention in the bill. I have argued against Ariane Burgess’s amendments 157 and 158, which would give rise to the need for a definition, so I ask her not to move amendment 159.

On amendment 214, in the name of Tim Eagle, I am not opposed in principle to holding a review of the effectiveness of the merger of the Scottish Land Court and the Lands Tribunal for Scotland. However, I need to be clear about two fundamental principles, on which we must not compromise, before we go any further.

The first of those principles is that of judicial independence. Ministers cannot and must not be drawn into commenting on judicial deployment, expertise or decision making. The second principle is that of the independence of the Scottish Courts and Tribunals Service. The Scottish ministers do not oversee the performance of the SCTS, which is accountable directly to the Parliament.

Therefore, it is essential that any review that we put into statute respects those boundaries. It is also worth noting that some of the information that the amendment seeks is already available through existing SCTS and judicial reporting, including annual accounts, operational costs, case-load data, waiting times and annual judicial business reports.

First, I will address Ariane Burgess’s amendment 156. As the bill transfers certain access rights matters to the Land Court, I recognise that such experience may be relevant to parts of its future work. However, the court’s jurisdiction is broad and covers crofting, land, valuation and agricultural holdings, and, under the bill, it will also cover the functions of the Lands Tribunal for Scotland.

To operate effectively, the court needs to have a balanced membership consisting of members who have been selected on merit from a wide range of backgrounds. The judicial appointments process is already designed to assess the full range of skills and experience that candidates bring and to ensure that they are capable of handling all the court’s work. If it is considered desirable to reflect particular experience, ministers will have the powers to do that by making eligibility regulations. That is the proper route for bringing in specific experience where it is needed.

Although I understand the member’s intention, for the reasons that I have set out, I invite Ms Burgess not to press amendment 156. If she does, I ask members not to support it.

I turn to the remaining amendments in the group. Amendments 102 to 105 will strengthen the provisions on eligibility for appointment as deputy chair of the court. They provide a clear and flexible approach that will allow the role to be filled whenever it is required, including when the chair of the court is unable to act and no eligible existing member can be designated to take on the role.

To maintain consistency with the rigorous appointments process, the amendments also provide that the Scottish ministers may appoint a non‑member as deputy chair only when no current member is eligible, and only when the individual has already been through the Judicial Appointments Board for Scotland’s recruitment process and has been appointed. The appointment is temporary and must be agreed to by the Lord President.

I would be happy to speak to Tim Eagle ahead of stage 3, because there is the potential to lodge an amendment that would do the very thing that he seeks to do.

I will speak to Ariane Burgess’s amendment 160, which has similarities with amendment 214. I will get through my notes and we can take it from there.

Amendment 160, in the name of Ariane Burgess, would require the Scottish ministers to update the existing statutory guidance

“given under section 27 of the Land Reform (Scotland) Act 2003”,

following the transfer of the matters of jurisdiction outlined in paragraph 16 of schedule 1, which relates to access rights, from the sheriff court to the Scottish Land Court.

The Scottish Government recognises that, following the commencement of part 2 of the bill, there will be a requirement to update the guidance in order to inform local authorities about the extended competence and jurisdiction of the Land Court with regard to access rights. We would undertake that work as a matter of course and as part of the routine practice of revising guidance whenever relevant statutory changes arise. However, there might be merit in explicitly setting that out in the bill in order to clarify the Scottish Government’s intention to revise the guidance following commencement and to reassure stakeholders—especially local authorities—that updated information will be provided to reflect the extended competence and jurisdiction of the Land Court in relation to access rights.

That said, we do not consider that amendment 160 would have the effect that Ariane Burgess intends, given the link to the coming into force of section 35. It is possible that paragraph 16 of schedule 1 will not be commenced—or not commenced in full—at the same time as section 35. However, we are willing to support the amendment at stage 3 if the member works with us to amend the drafting errors.

Amendment 161, in the name of Ariane Burgess, would require that a review be undertaken, after a three-year period, of the impact on the Land Court of the extension of its competence and jurisdiction to matters relating to access rights. Having undertaken such a review, the Scottish ministers would need to

“publish and lay a report before the Scottish Parliament”.

As with amendment 160, we do not consider that amendment 161 would have the effect that Ariane Burgess intends, given the link to the coming into force of section 35. Again, we are willing to work with her to bring forward a workable alternative for a review at stage 3, so I invite her not to move amendment 161.

11:30

Amendment 162, in the name of Ariane Burgess, would require the Scottish ministers to establish an expert working group to review the environmental jurisdiction of the court no later than six months after royal assent. That amendment could be considered to be in conflict with amendment 157, also from Ariane Burgess, which would expand the competence and jurisdiction of the Scottish Land Court to include a wide range of environmental matters from the date of commencement of section 75. I presume that the amendments present alternative approaches. I look forward to hearing what Ariane Burgess says about that in her remarks.

As I have already explained, there is some interaction between amendment 162 and Tim Eagle’s amendment 214, which seeks a review of the effectiveness of the merger of the court and the tribunal at defined intervals. The proposal to review the jurisdiction of the court with particular reference to environmental matters is, in principle, something that the Government is willing to consider. However, we consider that the way in which the amendment is framed raises a number of significant practical and legal issues. First, we consider that the commencement of a review within six months of royal assent is too soon. The merger of the Scottish Land Court and the Lands Tribunal for Scotland will not have taken place at that point, and no experience will have been gained from the operation of the new court.

From a legal perspective, we are not aware of any legislation that has previously required ministers to establish an expert working group such as that, and the state of such a group in law would therefore be unclear. That might be particularly significant if the group did not deliver on its objectives. The new court’s environmental jurisdiction is not defined, and if amendment 157, in the name of Ariane Burgess, is not agreed to, the meaning of the amendment would be uncertain.

Finally, although the proposed membership of the expert working group appears to be broad in representation, it omits representation from the court itself. Furthermore, there may be other stakeholder groups that are not specified, such as local authorities and trade unions, that would have important contributions to make to any review of the court’s competence and jurisdiction. It would also likely cut across the work of the Scottish Civil Justice Council, which has the statutory function of keeping the civil justice system under review and is in the process of reviewing access to justice for environmental actions.

In conclusion, the Scottish Government’s position is that amendment 162 would not deliver the outcomes that I think Ariane Burgess is looking for. For that reason, I invite her not to move amendment 162 and instead to engage further to consider an alternative approach in advance of stage 3.

I move amendment 116.

Apologies. Is that better?

On the points that Ariane Burgess has made, we are committed to compliance with the Aarhus convention and we are already taking forward the range of measures that I set out previously. Further work is under way on the reform of legal aid and the consideration of issues raised by the Aarhus convention compliance committee. Environmental Standards Scotland, which was established under the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021, provides an accessible alternative route for individuals and organisations to raise concerns about the effective implementation of environmental law, offering a means of resolving issues without the cost and complexity associated with court proceedings.

I fully take on board the concerns that Ariane Burgess has raised, but a lot of work is on-going and I ask her to bear that in mind as we go through the amendments that we have in front of us.

Amendment 116 agreed to.

Amendment 157 not moved.

Amendments 117 to 124 moved—[Jim Fairlie]—and agreed to.

Amendments 158 and 159 not moved.

Schedule 1, as amended, agreed to.

Sections 36 to 39 agreed to.

After section 39

Amendments 214 and 160 to 162 not moved.

Section 40 agreed to.

Schedule 2—Minor and consequential amendments

Amendments 125 and 126 moved—[Jim Fairlie]—and agreed to.

Amendment 163 moved—[Ariane Burgess].