Chamber and committees

A variety of types of common land—remnants of a much larger extent of land, from before enclosure and privatisation—still exist across Scotland. Their legal status is unclear and precarious. Many such pieces of land have been divided and appropriated by neighbouring landowners, and communities have lacked the means by which to protect that land from such activities. For example, Carluke commonty was saved by Andy Wightman, who is known to members around the table and who worked with the local development trust to register title to it.

In England and Wales, the purpose of the Commons Registration Act 1965 is

“to provide for the registration of common land and of town or village greens; to amend the law as to prescriptive claims to rights of common; and for purposes connected therewith.”

Scotland needs an equivalent register, because we have fallen way behind England and Wales in that regard.

My amendment 473 provides for the creation of such a register and for regulation-making powers to require that any local authority may seize and manage such assets or transfer them to an appropriate body.

In the latter half of the 16th century, fully half of Scotland was held as part of some form of commons. Today, little of that remains, but what does remain deserves better protection. I hope that that explains the rationale behind amendment 473.

I will speak to my amendments 475 and 477. Mark Ruskell, on behalf of Ariane Burgess, has set out why we need to address the issue of ScotLIS. I will try not to repeat any of Mark Ruskell’s ably made points on that, but it is good to put on the record again that, in 2015, when he was Deputy First Minister, John Swinney, made a clear commitment to establish a land information system for Scotland and that such a system would provide

“a one-stop-digital database for land and information services”.

Mark Ruskell has outlined what has been implemented and some of the shortcomings around that. That implementation work is incomplete. I recently submitted a written question to the Government on the matter and got a response from the Minister for Public Finance, Ivan McKee. There is on-going work on ScotLIS, but I share Ariane Burgess’s frustration, which Mark Ruskell has articulated.

My amendment 475 is not as prescriptive as Ariane Burgess’s amendment 470, but the rationale is similar. I am keen to hear what the cabinet secretary has to say on it.

I turn to amendment 477. Under regulation 12, paragraph (2)(a) of the Land Register Rules etc (Scotland) Regulations 2014, the keeper of the registers of Scotland is required by law to enter on the title sheets in the land register the “consideration”. Typically, that will be the price paid for land, and that recording of considerations is the reason why we have good data on house prices in Scotland. A consideration can also be recorded as “for love, favour and affection”, for example, which is the accepted term for a gift to a relative—there are other terms that have been used for many decades and have accepted meanings. In recent years, however, an increasing number of large landholdings have changed ownership, with the considerations being given simply as “implementation of missives”.

During the years 2020 to 2022, almost one quarter of all land sold as part of large landholdings—defined as those of more than 500 hectares—entered “implementation of missives” as the consideration. However, in 2023, that jumped to 72 per cent of the extent of all large landholdings, which represents more than 40,000 hectares. Eight out of 12 sales of holdings of more than 1,000 hectares gave that term as the consideration.

Those of you who know the basis of conveyancing will be aware that missives are exchanged as part of the conveyancing process, and they will be implemented unless the sale falls through. Therefore, “implementation of missives” is a meaningless term. As a matter of law, the keeper is a registrar and not an arbiter or enforcer; she faithfully records the consideration as given in the disposition. Given that the term is arguably being used to conceal the sum of money paid, amendment 477 requires the keeper to enter the actual sum of money that changes hands.

I am grateful to the cabinet secretary for the comments that she made a few seconds ago. The purpose of amendment 432 is to remove the conflict of interest that appears evident when Scottish ministers exercise powers under section 4 of the bill in relation to large landholdings that they own and are proposing to sell, or large landholdings that they are seeking to acquire. The amendment achieves that by removing land that is owned by Scottish ministers from the scope of the bill’s powers in section 4. That might not be the only way to achieve that, but it appears to be the simplest.

I listened to an interaction between Rachael Hamilton and the cabinet secretary at stage 1, and I heard the minister explain that she does not agree that such a conflict of interest exists. I will make two observations in response to that. First, it appears self-evident that, if a person or organisation is simultaneously seeking to sell or acquire land and also has a statutory power to intervene in that process, it is a classic example of a conflict of interest.

Secondly, section 6 disqualifies from appointment to the role of land and communities commissioner any person who either owns a large landholding or has owned one within the year prior to appointment. The committee recommended in our stage 1 report that that disqualification be dropped, but the Government took a different view. If the very small risk of a conflict arising from the land and communities commissioner owning, or having owned in the previous year, a large landholding is considered sufficient to justify the disqualification, perhaps the cabinet secretary can explain why ministers can make decisions under sections 2 and 4 of the bill when they own the land or are seeking to acquire the land that is subject to those powers. We need to clear that up.

I emphasise that the benefits to communities that are provided by the bill can still be achieved in relation to land that is owned by Scottish ministers, even though they are excluded from its scope, since asset transfer provisions will still apply and Scottish ministers are free to make their own decisions about lotting, for example.

I am really interested in the points that Tim Eagle is making. He said a moment ago that perhaps the Government should have targeted those who do not produce land management plans.

Yes. How would the Government know who had produced a plan and who had not?

I agree.

I will come in now, convener. I am not surprised that people want to contribute to this part of our scrutiny, because the land management plans are an important part of the bill and we took a lot of evidence on them at stage 1.

I take issue with the way in which Tim Eagle has framed the issue. On the one hand, we are hearing about the benefits of land management plans and the fact that many landowners, especially larger landowners, already make them, but we are also hearing that it is burdensome and could be very expensive. We did not really get evidence at stage 1 that backed up the suggested higher costs of £15,000. There is a contradiction in Tim Eagle’s arguments that, on the one hand, land management plans are good and lots of people do them but, on the other hand, we do not want them to be in the legislation.

I agree that we have to take care that land management plans do not become overly prescriptive. I do not think that that is the Scottish Government’s intention, but I will leave that to the cabinet secretary. However, does the convener agree that the benefits of land management plans have been well argued in our scrutiny? This is about improving accountability and transparency and, as Mark Ruskell says, engaging with communities, which can add value to the process for everyone.

No—sorry, I mean yes.

In an earlier discussion with Mark Ruskell, Mr Lumsden made reference to net zero. I hear the distinction that he makes between public interest and community interest and his point that they might not add up to the same thing. However, in the current climate, some politicians use slogans such as “net stupid zero” and there is a lot of misinformation flying around.

Does Mr Lumsden agree that it is really important that decisions are rooted in evidence and in science, and that sometimes community campaigns can be distorted because of misinformation? I hear the points that he is making, but does he recognise the concerns of some decision makers that, although sometimes community voices can be quite loud, they do not always reflect the public interest and the genuine community interest?

Thank you very much, convener, and good afternoon. I begin with a heartfelt “thank you” to you, convener, and to all the committee for your extensive and thoughtful work. You have been considering the petition for quite some time. On behalf of the petitioner, Ann Stark, who is here today with her husband, Gerry, I want to record the family’s gratitude to you as well as my thanks to them for the personal sacrifices that they have made in pursuing the petition—as always, inspired by their much-loved and much-missed son, Richard. From your summary, convener, it is clear that the progress that has been made would not have been possible without the petition and the committee’s work, so I offer a genuine “thank you”.

I know that a lot of work has happened behind the scenes, but I think that there has been significant progress since the last meeting at which the petition was discussed, in May last year. Some real movement has occurred. However, it is quite an honest reflection from you, convener, that we are now at a difficult crossroads in relation to both the time that we have left in this session of Parliament and, given the complex nature of the matter, the fact that, although we have had some clarity, we still do not really know who in Government is taking the lead on the issue and where responsibility for it lies. In your letter to the Minister for Public Health and Women’s Health last year, you told her that the committee had been quite

“struck by the lack of clear ownership over policy, direction and decision-making across postmortem services in Scotland.”

We have had a better understanding of the Lord Advocate’s role, which is unique, but it is still clear that no one organisation is taking responsibility for addressing concerns or leading on improvements. In fact, at one point, the Lord Advocate passed the matter back to the committee. The petition is relevant and essential—that remains the case.

I will touch on some of the progress that has been made. Your summary was very helpful, convener, so I will not repeat those points. I have become aware, through Ann Stark’s direct meetings with the Lord Advocate, that there will be a visit to the coroner’s office in Lancashire next Friday, 2 May, which is really good news. I am not sighted on the detail of who will be included. Ideally, the committee would have been represented, but I do not know whether that is still possible. I think that that is a bit of a breakthrough, because we have always felt that Scotland has been lagging behind and has been an outlier—not in a positive way—in relation to the choice and modernisation that we have seen in other parts of the UK and the world. The committee could ask for an update on the scope of that meeting.

We also believe that a pilot scheme involving the use of scanners is about to be embarked on. We understand that the Lord Advocate was going to update the committee, but I am not sure whether that has happened ahead of today’s meeting. It feels as though there is more work to be done on that.

Beyond the work of this committee, the Criminal Justice Committee has taken a keen interest in the issue. The annual report for 2022-23 of His Majesty’s Inspectorate of Prosecution in Scotland made a number of recommendations, and—similarly to your work, convener—it reflects the fragmented nature of pathology services in Scotland.

Let me bring us back to why that matters. Ann and Gerry Stark have had a terrible loss, which was made worse by the trauma of having to deal with the system and the services, of which there are many. There was a lack of communication with the family and a lack of compassion around sample retention, as it was a journey of discovery to have Richard’s samples returned to the family. It feels as though we are making progress on scanners, although there is work to be done.

The committee could do further work on the Human Tissue (Scotland) Act 2006. I do not think that the Scottish Government has given proper reasoning for its not supporting any change to the law. Why is it that next of kin in England and Wales have choices, including about reuniting samples with the body prior to the body being released for funeral and about samples being returned to the family for a separate funeral at the appropriate time, but those choices are not available in Scotland? There has been progress in Ireland during the past couple of years. I do not think that the minister, Jenni Minto, has given a proper reason for that in her response, so it would be useful to probe the matter further.

It is for the First Minister to organise his Government and ensure that there are no gaps in ministerial responsibilities. The minister told the committee that she has responsibility for hospital-arranged post-mortem examinations, and I believe that the First Minister has said that there will be a light-touch reshuffle due to circumstances, so the issue could be considered by the Government at that point. However, it is not clear whether all of the work on the co-design of what the future of pathology in Scotland should look like sits within Ms Minto’s portfolio or whether there is a role for Angela Constance, as part of her portfolio. The Government needs to put that in writing to this committee and to the Criminal Justice Committee.

This continues to be a matter of importance not just for Ann and Gerry, but for all of our constituents. When I checked earlier this morning, more than 3,400 people had signed Ann’s petition. It was good that the convener was able to raise it with the First Minister at the recent meeting of the Conveners Group. I noted the First Minister’s answer and the follow-up letter. It is good that Government is beginning to engage, but there is still a lack of detail.

That convinces me that it would be helpful to keep the petition open, given that we are coming into the final year of the Parliament and there is interest among a number of MSPs and at least one other committee, and given that the Scottish Government is beginning to show interest and understands that there needs to be change. The Government has been quite vague and non-committal about what that change should look like, and, if more written and oral evidence could be taken, the committee is well placed to do that.

I will conclude by saying that we have not had a full update on the visit to the coroner’s office in Lancashire or what the scanner pilot scheme would look like. If the Lord Advocate has not written to the committee on that, the committee could follow that up.

We want to send a signal to people across Scotland that, where there are gaps in legislation or policy, there is a place in the Parliament where people can come and have their experiences heard and change can happen. We have made a lot of progress, but there is still a bit of a journey ahead. I would be grateful for the committee’s on-going interest in the matter, because there is more to be done.