Chamber and committees

So, if the order were to be annulled, fishing would happen. Given that the TSP has already been thought through and planned, could there be an opportunity to use it to look at what happens when fishing happens? Could that be a starting point?

I hear the point about collaboration, but we have heard from many stakeholders who clearly do not want the order. We have heard that from all forms of stakeholders—it is a 360° view. It is clear that some people do not feel that they are fully involved and engaged in that collaboration. I have observed over time that, with the Government, collaboration sometimes starts to happen once it has already made up its mind. A more inclusive co-design and co-production process needs to start much earlier.

I find that—

I have nothing further to add. I wish to withdraw the amendment.

Amendment 156, by agreement, withdrawn.

Amendments 102 to 115 moved—[Jim Fairlie]—and agreed to.

I will begin by saying that we should all be concerned that Scotland is not meeting its international obligations when it comes to people’s access to environmental justice. We are currently in breach of the Aarhus convention, which was signed more than 25 years ago, especially article 9, which requires access to environmental justice to be

“fair, equitable, timely and not prohibitively expensive.”

I have a sense that we are all believers in fair access to justice, so we need to ensure that we provide such a system for the people of Scotland.

There is a wider point to make about meeting our international obligations, which is about being taken seriously and being trusted on the world stage. We must abide by treaties and other agreements that we have signed up to. Aarhus is an example of such an agreement, which is part of the reason why I view this amendment and the consequential amendments as being of such urgent importance. I appreciate the conversations and discussions that I have had with the minister and officials on the matter ahead of this stage 2 debate.

In the policy memorandum that accompanies the bill, the Scottish Government states that it wants there to be consideration around providing the Scottish Land Court with jurisdiction over environmental cases at some point in the future. I heard the minister say again in his remarks that now is not the time for that, and that it would happen at some point in the future. Although I welcome the fact that the Government did not shy away from the matter in the memorandum, it is beyond time for us to stop taking baby steps on the issue and start taking big strides instead.

Amendment 157, which I have worked on with the Environmental Rights Centre for Scotland, would give the newly merged body jurisdiction over environmental cases. In practice, that would mean that communities would have a clear, low-cost route to bringing cases against a nearby factory that was spewing out nasty emissions, for example. Likewise, a charity could bring an environmental case against the Government without having to find thousands of pounds to fund it. Amendment 157 would bring Scotland into line with many other nations around the world, where land and environmental courts are the norm.

Examples of this combination can be seen in Sweden, Kenya, New South Wales and Australia. The latter is the oldest specialist environmental court in the world, and it has operated successfully since 1980. Providing environmental jurisdiction would also be a big step towards meeting our Aarhus obligations by creating a one-stop shop for such cases.

As we heard during our evidence sessions on the bill, especially the one with Alison Irving, the principal clerk of the Scottish Land Court, from an administrative point of view, nothing prevents us from giving the Land Court that jurisdiction. The only question would be about resourcing. She stated that

“the Land Court already has a number of niche jurisdictions, so it is used to dealing with a range of different pieces of legislation.”

Ms Irving added:

“We already deal with appeals against some Scottish Environmental Protection Agency decisions.”—[Official Report, Rural Affairs and Islands Committee, 5 November 2025; c 6-7.]

It is therefore not a great leap for us to agree today to give the Land Court environmental jurisdiction. I will say, however, that I take on board yesterday’s discussions about the complexity of that.

Another key thing to say about amendment 157 is that I can see a time coming when the number of environmental cases going through the courts will begin to rise. Issues caused by climate and biodiversity are set to become more acute in the near term, and it is highly likely that the demands on our justice system will go up in tandem with that. It is therefore imperative that we begin to develop the relevant expertise in our legal system now, so that we can avoid the public expense and resource that would be required to play catch-up in the future. I appreciated hearing the minister’s thoughts in this space.

Amendments 158, 159, 164 and 165 are consequential to amendment 157. Amendment 158 would enable us to meet our Aarhus article 9 obligations in a Land Court that is reformed by amendment 157. It would protect individuals or groups from having to pay the other side’s costs in unsuccessful environmental actions. That would create a much more level playing field between those bringing cases, more of whom tend to be charities or communities, and those defending them, who tend to have deep pockets. I take on board the minister’s comments about the amendment lacking clarity about what is meant by “environmental rights action” and that the Scottish Government is already taking steps through a consultation or work being done by the Scottish Civil Justice Council on a maximum fine and the ability to lower the fee via judicial discretion. That is welcome.

Amendment 162 is a fallback for amendment 157. It would require ministers to set up a working group consisting of all key stakeholders in the environmental justice space. That working group would look at the feasibility of setting up an environmental court and handing environmental cases to the Scottish Land Court. The Government would then be required to review and release a statement on the group’s findings. Such a measure would at least move us away from the Government saying good things about environmental rights but not taking action. It would give the Government the opportunity to communicate what it is already doing.

It would also require the Government do this in a transparent way, which is what the committee has called for—clarity on scope, resourcing and access to justice impacts, as we set out in our report. I recognise from what the minister said in his contribution that there are drafting issues, and I would appreciate working with him and officials on that ahead of stage 3.

Amendments 160 and 161 relate to land access elements in schedule 1. I appreciate the constructive conversation and discussion ahead of this stage. One of the welcome elements of the Scottish Land Court’s part of the bill is that its jurisdiction would include land access cases. In recent years, we have seen several high-profile land access disputes, but translating those disputes from wars of words to the courts system has proven to be a challenge. I believe that the change that the bill will make will go some way towards improving the situation.

I would, however, like to make a few tweaks to ensure that we get the best possible hub for land access justice. Amendment 161, which I worked on with Ramblers, would require the Government to produce a report on the nature and number of land access cases being brought to the Land Court after a period of three years. That is crucial, because it would enable us to identify and rectify any issues that prevent people from bringing those cases and, in turn, build confidence in the newly emerged court’s ability to handle land access cases.

Amendment 160 would require ministers to update the access rights guidance that is required under the 2003 act, to ensure that the route that land access disputes should take is clear to all. The amendment would require the updating of guidance that is now more than 20 years old and is not in line with the changes in practice and the law that have occurred in that time. I believe that that measure would have a positive impact on the running of the Land Court when it handles cases. Again, I appreciate what the minister said about working with him and officials ahead of stage 2 on those two amendments.

Amendment 156 was drafted in collaboration with the Ramblers Association. It would require the Government to have regard to the knowledge and experience of members who it appoints to the newly merged Scottish Land Court. I appreciate the constructive discussions that the Government had with me ahead of stage 2. Specifically, amendment 156 proposes that consideration should be given to including as members of the court people who have experience and knowledge of land access matters in rural and urban settings. I believe that we can all agree that that would be in the interests of everyone who interacts with the court. We must ensure that everyone who brings or defends a land access case receives the best justice possible.

Amendment 156 would ensure that there is consistency, efficiency and specialist handling of access disputes, particularly when land management and public rights interact. Access cases often involve a nuanced interpretation of the Scottish outdoor access code and land use practices, and a dedicated forum that is overseen by people with the right expertise will offer better informed outcomes than a generalist sheriff court.

As I said, I have spoken to the minister about the amendment, and I understand that a less specific mechanism is in place that allows for the right expertise to be put in place. However, I want to ensure that there are routes that stakeholders and other interested parties can take to ensure that any knowledge gaps in the Land Court are addressed. If the minister can reassure me on that, I will be content not to press amendment 156.

I move amendment 156.

Good morning, and welcome to the sixth meeting in 2026 of the Local Government, Housing and Planning Committee.

Evelyn Tweed and Fulton MacGregor are joining us online. We have received apologies from Meghan Gallacher and Mark Griffin.

The first item on our agenda is a decision on taking business in private. Do members agree to take item 2 in private?

Members indicated agreement.

That concludes the public part of the meeting. We will now move into private session.

09:30

Meeting continued in private until 10:37.

I will speak initially to amendments 133 to 136, which relate to section 3, on reporting breaches of duties.

During the committee’s evidence taking on the bill, we heard concerns about the reporting of breaches of duties. In the light of that, I have worked with Community Land Scotland on amendments 133 to 136. We feel that a duty on the commission to investigate possible breaches of duty on crofts only if they have been reported by those coming from the same township, as the bill currently states, will not lead to meaningful change, for the simple reason that crofters, and people in any other walk of life, are unlikely to report their neighbours for such breaches. Indeed, that view came through, and was reflected in, the discussions in our evidence sessions.

Amendment 134 seeks to rectify that by using the word “parish” instead of “township”. A parish encompasses a larger area, albeit one in which inhabitants are still likely to know almost every blade of grass. That would allow a wider community of those who could report suspected breaches of duty on a nearby croft—it would take that burden off the shoulders of nearby neighbours and share it amongst that wider community.

Likewise, as we have set out in amendments 133 and 135, we feel that it is important that prospective crofters, local community councils and Government agencies have the power to report breaches. That would further take pressure off the community, which, understandably, might wish to protect relationships and avoid conflict. Amendment 136 is consequential to amendments 133 to 135.

I think that Rhoda Grant’s amendment 173 offers a more limited version of what I have set out in amendments 133 to 135, adding only the Government to the list of those who can report a breach. Although I understand the intent of her amendment 174, which would allow complainants to remain anonymous, I am a little concerned that it restricts the airing of issues. I believe that we need to move to a culture in which the community has the confidence to discuss openly, and with support, the issues that it faces, as it could help crofting communities move to a better way of living together. Therefore, I am not minded to support Rhoda Grant’s amendment 175 either.

However, I will support her amendment 166. I agree that tighter language is needed to ensure that we do not have crofters living well away from their crofts and crofting communities. Keeping crofting communities in place is key to halting rural depopulation and creating a thriving rural community, so that amendment has my support.

On amendment 137, which relates to section 4, common grazings account for more than 550,000 hectares of land in crofting tenure, and, to ensure their proper management and administration, grazings committees are encouraged to adopt appropriate regulations. Where someone breaches those regulations, it is important that the Crofting Commission has the necessary controls to encourage compliance. Amendment 137 therefore seeks to bring the treatment of such breaches in line with a suspected breach of duty when the commission is considering whether to process a regulatory application or to decline to do anything.

It was clear during the committee’s stage 1 discussions on the bill that there was a degree of dissatisfaction with, or confusion about, the way in which section 1 defines “environmental use”. Given the importance of putting land to environmental use, I feel that, if Scotland is to tackle the climate and biodiversity crisis, it is important that we address those concerns and put forward a watertight definition of the term.

My amendment 132, which has been drafted in collaboration with Community Land Scotland, seeks to underline that environmental use has to be

“intentionally designed and systematically managed”.

It also stipulates that such use must not

“be detrimental to the croft”

and must not

“undermine the public interest”.

That definition would give crofters, and the Crofting Commission, ample room to interpret the phrase “environmental use” as they see fit, while providing guardrails to ensure that such use must have a thought process, planning and implementation measures behind it, as well as a clear aim, in order to fit in with crofter duties.

I appreciate that Rhoda Grant’s amendments 4 to 6 stipulate that environmental use must involve active management and that is certainly tighter than the definition in the bill, but, crucially, it does not require the level of design and planning that I believe are important in this instance. As a Scottish Green, I want to see environmental usage that is properly executed and meaningful, especially in the face of the climate and nature crises. The version proposed by my amendment is stronger and would enable crofters and the Crofting Commission to operate with absolute certainty in respect of environmental use. Likewise, I am concerned that Tim Eagle’s amendments 167 and 169, which are alternatives to my amendments and those of Rhoda Grant, contain a vagueness that could operate as a backdoor to preventing environmental use.

Amendment 170, also in the name of Tim Eagle, stipulates that environmental use does not include energy generation, transmission or storage. I agree with that, but the last part of it, which puts “rewilding” out of bounds for environmental use, could make it difficult for crofters to carry out duties under section 1(3) of the bill.

My other amendments in this group—amendments 142, 146, 148, 196, 151, 152 and 198—relate to section 18, on common grazings used for environmental purposes. The bill takes a welcome step towards enabling crofters to use the land that they manage for environmental purposes, but there are issues with section 18 that need addressing if crofters who are part of common grazings are to be able to operate with confidence. For example, landowners will have too much power to stymie environmental initiatives, because the language in the bill is too loose. With support from Community Land Scotland and the Scottish Crofting Federation, I have proposed ways of bringing landowner rights into balance with those of crofters.

My amendment 142 would allow landowners to review their consent for environmental initiatives only if those initiatives would be detrimental to the community or the public interest. That would still give landowners a power to say no and allow them to make a reasonable case for doing so. I have heard that landowners are using their existing powers of refusal to block environmental initiatives or are accepting them only if crofters accept highly unfavourable terms. That is preventing good climate and nature-friendly work from taking place and it is damaging our nation’s progress towards legally binding targets. During the committee’s evidence taking on the bill, the Crofting Commission chair, Andrew Thin, told us that

“A large chunk of land in our country is being used suboptimally and is suboptimally productive, which is not sensible”—[Official Report, Rural Affairs and Islands Committee, 24 September 2025; c 25.]

and he called on MSPs to rethink existing systems of land use and management so that they provide environmental good where appropriate. Amendment 142 seeks to drive that change by putting the needs of our nation above those of individual landowners.

In the event that that amendment is not agreed to, I want to provide a bit of clarity on when an intended resumption can take place. As a result, amendment 146 states that any resumption would have to be for a “reasonable purpose” that would benefit crofters, local communities and the public interest. It would mean that landowners could not claim that they would carry out a resumption at some obscure point in the future, as the current wording allows, and it also seeks to ensure that, if they genuinely intend to go through with a resumption, it will be of benefit to others. Again, landowners would have ample power to say no, but that alternative to amendment 142 would at least remove some of the ambiguities in the bill as introduced.

We must also consider how to clear up uncertainties around carbon rights and how those are shared between crofters and landlords. That has been an on-going conversation since the beginning of the session, when I began attending the cross-party group on crofting. It would be unacceptable for crofters to put all the work into environmental use only for the landowner to collect the financial benefit of that work.

Amendment 148 would provide that revenues from carbon and ecosystem services would belong to the active user of a common grazing. As a Scottish Green, I fundamentally do not agree with the idea of natural capital markets, but they are here, so we need to address justice and fairness in that respect.

Amendment 196 offers a slightly different path to achieving the same goal by copying the same language from new section 50(6) of the 1993 act into new section 50(7). That would mean that crofters would receive the economic benefit that comes with restoring peatland ecosystems, improving water management or preserving and enhancing the environment in another way.

Meanwhile, amendment 198 offers another way into that reform by entitling the grazings committees to financial benefits arising out of active environmental use. Passive landowners should not be allowed to extract wealth that has been generated by active crofting—wealth that would support rural communities. It is a hangover from the archaic system that we lived under in Scotland for far too long, and it is one that benefits the few at the expense of the many. I strongly encourage the Government to commit to wider work on the issue, perhaps through a carbon rights bill, as we touched on in discussions prior to this meeting.

My other amendments in the group, amendments 151 and 152, are crucial to encourage crofters to adopt environmental practices or use common grazings for forestry. They would be particularly helpful if members do not vote for amendments 148, 196 and 198. Amendment 151 would require ministers to ensure that agricultural support payments and other public grants are set up to also support environmental initiatives or forestry on common grazings. We need to use the levers of state to encourage positive behaviour, all the more so if—as the bill currently has it—there is going to be little other incentive to do so.

Amendment 152 would require ministers to set up an advisory capacity for grazings committees on the use of common grazings for forestry or environmental purposes. I believe that that is key, particularly given that the use of land for those purposes is still relatively novel. That advisory function would help to build expertise and ensure that crofters can get the best out of land when it comes to environmental uses.

As I said at the start, the bill makes a genuinely positive step forward in opening the doors to environmental use of crofting land, and these amendments are intended to build on that positive foundation by supporting crofters to walk through that door.