Chamber and committees

Thank you. My next question relates to invasive non-native species, which Rhoda Grant and Mark Ruskell have already picked up on. As Mark Ruskell said, we have relatively strong legislation on invasive non-native species—it is illegal to release any species outside its natural range—but there are two key areas in which blanket exemptions to that legislation risk undermining progress and damaging the natural environment. They are the lack of regulation on non-native game bird releases, which Mark Ruskell mentioned, and the exemption of non-native commercial conifers. Both of those are exempt from the polluter-pays principle.

Is the cabinet secretary open to revisiting those exemptions through the bill, so that we can help to drive effective action on invasive species in order to prevent further biodiversity loss?

I am pleased to speak to amendment 174 and my other amendments in the group. I thank Community Land Scotland and the Scottish Parliament legislation team for their support in drafting the amendments.

The bill as introduced includes a transfer test that does not make any assessment of the wider public interest in land ownership, nor does it assess whether the buyer or their plans for the land are in the public interest. Successive Scottish Governments have consistently made commitments to diversify land ownership patterns in Scotland but, as it stands, the transfer test in the bill is not an effective mechanism for achieving that.

In order for the test mechanism to be impactful, it must move beyond being a mere assessment of the landholding; it must instead make a forward-facing assessment of whether the landholding and the land management plan of the incoming landowners are in the public interest. That would also create coherence between the otherwise disconnected test and land management elements of the bill.

The committee heard evidence from numerous stakeholders, experts and land users that it is necessary to reframe the transfer test as a public interest test. The stage 1 report noted that the committee

“considers that the transfer test, as drafted, will not meet the aims of the Scottish Government as it does not sufficiently take account of the public interest”.

Unlike the term “community sustainability” in the bill, the term “public interest” is widely used in Scottish and UK legislation. It has more than 200 mentions in primary legislation, including in existing land reform legislation. That means that a public interest test is likely to establish a clearer precedent than a transfer test and would avoid future legal challenges. Research for the Scottish Government and the Scottish Land Commission has been clear on that.

My 174 amendment would therefore insert a forward-facing public interest test into the bill, with that test to be applied to a proposed new buyer in relation to transfers of large landholdings. Under the proposal, land being transferred would remain subject to public interest considerations and existing obligations, such as land management plans; at the same time, it would ensure that potential buyers would fulfil the land management plan obligations necessary for their ownership of the land.

The public interest test in amendment 174 and as amended by the presumed limit in amendment 174A would provide that a proposed transfer would have no effect in a situation where

“(a) section 67G ... or

(b) a lotting decision under section 67N applies to the land”,

if ministers considered that the transfer would not be in the public interest.

I will continue before I take the intervention.

In doing so, ministers would have to consider matters to do with the buyer, as set out in subsection (2) of the new section that amendment 174 would insert, namely where the landlord

“is resident for tax purposes ... the size and location of any other land”

that they control, their “plans or proposals” for land management and their future plans for the use or sale of the land.

By having a public interest test that assesses whether the landholding and the proposed purchaser are working in the public interest, that forward-facing burden, including in relation to lotting, is placed on the transfer. Because lotting is defined as being in the public interest, amendment 174 would not violate a property owner’s rights. Rather, it would create what has been described as a fit and proper person test to ensure that, in managing, buying and selling land, the owners of Scotland’s land do so in the public interest.

I will take Douglas Lumsden’s intervention.

Will the cabinet secretary take an intervention?

For me, it is a point of democracy and accountability, and the extent to which, and how, the individuals you refer to can be held to account by people in Scotland if they do not manage the land appropriately. One would assume that, if someone is based here and has skin in the game—they contribute through taxation and so on—they will have a greater stake in what happens and the decisions that they make will have a greater impact on them, their family and their community.

Will the member give way?

I seek clarity on that position. On national concentration of land ownership—

My question is on that last point. Does the Scottish Government recognise national concentration of land ownership as a problem?

I am pleased to speak to amendment 43 and my other amendments in the group. I again thank Community Land Scotland and the Scottish Parliament legislation team for their support in drafting the amendments.

The bill makes it clear that provisions for land management plans, lotting limits and transfer tests will apply to single, composite or contiguous landholdings. As it stands, that means that non-contiguous landholdings that are over the threshold will not be subject to the effects of the bill and that a single owner of multiple holdings that amount to many times the size of the large landholding threshold will be unaffected by the bill. However, the stated purpose of the bill is to address the national concentration of land ownership across Scotland. The Scottish Land Commission found that aggregate holdings and complex ownership structures pose challenges for transparency and applying the bill’s provisions.

My amendments 43 and 47 therefore seek to remove the limitation that holdings must be contiguous, thus removing loopholes around non-contiguous landholdings and ensuring that aggregate landholdings that are over the threshold will be included in the scope of the bill. If the amendments are agreed to, they will ensure that aggregate landholdings are included in the land management plan requirements, prior notification requirements and public interest test requirements, while removing the loophole of landholdings being severed by infrastructure.

The amendments would remove the requirement for landholdings to border each other and ensure that large landowners of multiple holdings across the country are within the scope of the bill. Amendments 43 and 47, taken with amendments 122 and 125 in group 10 and amendments 140 and 145 in group 12, therefore seek to remove loopholes in relation to contiguous landholdings and include aggregate landholdings.

Bob Doris’s amendment 182, which is in group 16, would introduce a duty on Scottish ministers to regularly review the thresholds. It is vital that we future proof the legislation to sustain the direction of travel towards greater diversification of land ownership. My amendment 109 therefore seeks to amend proposed new section 44M of the Land Reform (Scotland) Act 2016 to specify that

“Regulations ... must not increase the number of hectares in area that land must exceed for obligations to be imposed on the land.”

Amendment 109, taken with amendment 133 in group 10 and amendment 171 in group 12, would ensure that thresholds may not be revised upwards.

Labour supports Ariane Burgess’s amendments 3 and 4, which seek to lower the threshold to 500 hectares. I have long campaigned for that and we welcome the Greens’ support for it.

As I said, the tax residence of a proposed buyer would be a consideration under the public interest test.

It is not enough to address the concentration of ownership. We must also address the scale, given that, today, the ownership of Scotland’s land is concentrated in the hands of the new nobility: asset managers, foreign billionaires and the inheritors of huge estates. Just 0.025 per cent of Scotland’s population owns 67 per cent of our countryside, and the bill presents an opportunity to change that.

That is why my amendment 174A would extend the public interest test to include a presumption against private land ownership of more than 500 hectares, unless that can be demonstrated as being in the public interest.

Large landholders that own land for the public benefit, such as environmental groups, community organisations and public bodies, should be confident that, by definition, their ownership would pass a public interest test. However, the extraordinarily high concentration of land in the hands of so few is severely limiting access to affordable homes, stifling job creation, increasing land prices and harming the environment, so it must be addressed. That is exactly what amendment 174A does.

The same proposal to cap ownership was included in the consultation for my proposed land ownership and public interest (Scotland) bill. That consultation garnered 568 responses, which is more than the Scottish Government’s consultation received for the bill that we are considering. The response was overwhelmingly positive, with majority support for a presumed limit on the amount of land that any person can own.

Amendment 174B seeks to place public interest considerations on the face of the bill in order to underpin a public interest test. That will ensure predictability, transparency and coherence for landowners who engage with the public interest test.

Amendment 459 introduces a provision for Scottish ministers to compulsorily acquire land after a transfer has failed the public interest test. Ministers would be granted the power to compulsorily acquire some or all of the land concerned if doing so would be in the public interest and more likely to secure true sustainable development of the area. That sustainable development must equally and fairly balance all interests, including worker, community, natural environment and biodiversity considerations.