Chamber and committees

I did.

I was not going to bother but I shall now, Mr Ruskell.

You said that everyone expects there to be repeated fines. For me, that is not the best starting point. The £40,000 maximum fine is a backstop for non-compliance, not a first course of action. It may be that there are repeated fines—we will establish that through the passage of time—but do you agree that the aim is that there should be a positive, correct, initial relationship with the new commissioner, in much the same way as the tenant farming commissioner has built up an excellent relationship with everyone that he has responsibility for in relation to regulations? If we get that right at the outset, although we might end up having fines for some very large businesses and large landholdings, that positive relationship will mean that, for many, fines do not have to be regular. To say that fines have to be regular sets the wrong tone for the relationship that we are trying to build with landowners in Scotland.

I apologise—I think that I am also cutting across the deputy convener, who I think was also about to make an intervention.

Your last few comments were welcome, convener, because we can see your rationale and the fact that you are comfortable with a fine of £40,000 as a backstop so that landowners who do not comply would eventually get to the stage where they could be subject to a fine of £40,000. Have I picked that up accurately?

I will restrict my comments mainly to amendments in my name.

I start with amendment 30. I discussed various issues with Community Land Scotland, and I agreed with it that there could be greater structure and certainty as to how land management plans can be effectively and meaningfully monitored. That is important for the landowner, who needs a clear, fair and proportionate approach to monitoring, as well as for the land and communities commissioner—and, potentially, others.

Amendment 30 seeks to provide greater clarity for landowners on how plans will be delivered and monitored. I am confident that landowners will wish to ensure that land management plans deliver on the intended outcomes, but that must always be able to be demonstrated in a proportionate way. Therefore, amendment 30 would require details to be provided on

“how the plan will be implemented ... who is responsible for the implementation of the plan ... how the implementation of the plan will be monitored”

and

“how the actions and outcomes of the plan will be reported on.”

Amendment 30 is linked to amendment 33, which we discussed in group 2 last week and which would have allowed the commissioner to publish guidance on how owners are to comply with the requirements that are mentioned in proposed new section 44B(3) of the 2016 act, which sets out the information that the land management plan must contain.

I said that I would not move amendment 33 and that I would work with the Scottish Government on the policy intent, if not the detail, of that amendment, so I would like to hear the Government’s views on the policy intent behind amendment 30.

Amendment 31 would allow for regulations made under proposed new section 44A of the 2016 act to make further provisions about the publication of plans by a public body, as mentioned in proposed new subsection (1)(aa). That is linked to amendment 17, which we discussed last week and would have required land management plans to be accessible and published online. Again, I agreed not to move amendment 17 to see whether we could deliver jointly on the policy intent ahead of stage 3. I would be inclined to take a similar view on amendment 31.

On amendment 31, I am genuinely interested in Mr Eagle’s comments. I think that he made the same comments last week about it being inappropriate for the publication of land management plans to reveal commercial information. I could be wrong, but it was my understanding that land management plans had to be available to interested parties. How could an interested party report a potential breach to the land and communities commissioner unless the plans were published and accessible? That being the case, I do not understand why publishing the plans and making them accessible in an online format would be commercially inappropriate compared with publishing them and making them accessible in other ways. I am happy to take an intervention on that point, if Mr Eagle wants to elaborate. I think that there has been some muddled thinking on that, so he might want to think about that more and come back on that.

Amendment 32 would allow the Scottish Government to set out in regulations the detailed requirements with regard to how landowners must comply with their obligations in relation to land management plans. For example, when the ownership of land is transferred, one of the matters that the committee discussed during its stage 1 scrutiny was what the status of any land management plan should be if the land is subsequently sold. For instance, would the new owner simply inherit the obligations in the original plan? These regulations would set out the requirements for new owners and could cover other scenarios, such as when a landowner who owns an amount of land that is under the threshold purchases an adjacent holding, bringing them into the scope of the bill’s provisions.

Future regulations could provide the owner with a grace period of, for instance, a year, within which the landowner would have the option of either keeping the existing land management plan or consulting on a new one. That would appear to be a reasonable approach. I recognise that it would be best to set out a great deal of the detail in that regard in future regulations, which could be developed with the benefit of consultation. It is appropriate that the bill does not prescribe the detail of the manner in which the obligations in proposed new section 44B(1) on land management plans must be complied with.

Accordingly, I ask the committee to support amendment 32 and to give consideration to the other amendments in the group that are in my name.

I start by saying the policy intent behind these amendments followed from not just the very strong committee evidence that we had at stage 1 but discussions with the Scottish Government and Community Land Scotland. I thank the Scottish Government for working with me—I acknowledge the expertise that its bill team brought to the drafting of this suite of amendments, and I thank them for their efforts. I absolutely agreed with the policy intent, and our discussions around that were quite clear.

During our stage 1 scrutiny, several committee members felt that the maximum penalty of £5,000 for non-compliance in relation to land management plans was woefully insufficient, and my purpose in lodging these amendments is, therefore, to strengthen the provisions. It is important that fines that are imposed for breaches are meaningful and that the cost of a fine is not a cheaper alternative to fulfilling the obligations under the bill. For instance, the business and regulatory impact assessment suggested that producing a land management plan could cost up to £15,000. I note that that figure was at the higher end of the modelling that was done. Moreover, the evidence that we got from various witnesses was very confused about how much land management plans would cost to produce. Some landowners said that they did that work already, but they did not call it a land management plan, while others thought that it would be a huge cost to them. The evidence that we heard from the landowners on that was, I thought, unclear.

In any case, any maximum fine must be suitable and appropriate to ensure that there is no incentive to simply not produce a land management plan or comply with the provisions. As a result, I have lodged amendment 89, which, as Mr Eagle indicated in his contribution, seeks to increase the maximum fine that the land and communities commissioner can impose from £5,000 to £40,000. In doing so, I stress that that will be the maximum element of any fine. Indeed, the land and communities commissioner can enter into discussions with or issue compliance notices to landowners where appropriate, instead of rushing to fine them for non-compliance.

I wanted to lodge this suite of amendments, because, as I made clear during my questioning at stage 1, I am keen to see a constructive relationship between the new land and communities commissioner and landowners. That is vital; indeed, Tim Eagle himself has lodged amendments to reinforce the collaborative approach that is required. Earlier, the convener made an interesting point about ensuring affordability for some landowners, and I would welcome the discussions on the matter that might take place with the cabinet secretary following stage 2.

Amendment 107 seeks to allow ministers to adjust a fine through secondary legislation. That will be important to prevent the value of fines being eroded by inflation, for example, and it is important to point out that an affirmative instrument will be required in order to make that change, which will ensure robust parliamentary scrutiny.

Amendments 70, 83, 91 and 97 to 100 will together allow the land and communities commissioner to serve enforcement notices when original breaches have not been remedied. If those enforcement notices are not complied with, the commissioner can introduce a further fine with the same maximum level as the original fines—that is a may, not a must.

I appreciate the points that Mr Ruskell made about amendment 97A, but I said earlier that this is about collaboration between the land and communities commissioner and landowners, and giving the commissioner the flexibility that they require to develop those relationships, promote best practice and work collegiately. Constraining that flexibility by saying that they must implement another fine for non-compliance would not be in that spirit. That is why I do not support “must” as opposed to “may” and, therefore, do not support amendment 97A. In that way, continued non-compliance might lead to multiple fines and further strengthen the enforcement and compliance regime.

Together, the amendments will support a robust enforcement regime to deter poor behaviour. In closing—

Mr Lumsden’s idea of guidance on when fines can be imposed or escalated is an interesting one. I am conscious that we also want to give the new land and communities commissioner as much flexibility as possible, and I would not want to constrain them. It is important to note that a £40,000 fine might never be imposed on landowners for repeated non-compliance. That flexibility sits with the commissioner. I am, however, open to Mr Lumsden’s suggestion, even if I am not wholly convinced by it, and I thank him for putting it on the record.

In closing, although my group of amendments is about ensuring compliance to deter poor behaviour, I am genuinely confident that the vast majority of landowners will strike up a positive relationship with the new commissioner. They will comply, there will be a collaborative approach, and the new commissioner will not rush to fine any landowner. This is about partnership working, but a robust enforcement regime must underpin that. I will leave it there.

Before I close, I will take an intervention.

Your contribution is quite helpful, convener, as it sets this all in context. Do you believe that a £40,000 fine for non-compliance could ultimately be appropriate for some large landholdings that could be seen to be businesses on an industrial scale in our rural communities but would not be appropriate for others?

I am sure that you know this already, convener, but I want to draw attention to my amendment 32 in group 7, which looks specifically at the transfer of land from one owner to another and appropriate transitional arrangements. I hope that I will get your support for it when we reach group 7.