Chamber and committees

The amendments that I have lodged will change some of those timescales. We also heard the advice that the committee heard, as well as the recommendations from the Scottish Land Commission. Ultimately, it is about balance. I appreciate that you are advocating for 120 days, but we will still have two periods of time. I will come on to talk to my amendments and, I hope, set that out a bit more clearly.

If communities have registered an interest, they will already be notified under existing arrangements, so amendment 351 is not necessary. It also seeks to provide that a wide range of groups should be notified of any sale, but it does not make any distinction in relation to whether a group is interested in acquiring the land, without it having signalled that it wishes to be notified. The bill already provides for notification to anyone, who need not be a community body, who has provided details and wants to be notified in the event of a landowner notifying ministers of an intention to transfer the land. That is the right target group. Expanding the requirement to anybody who has engaged with ministers under section 34 of the 2003 act would be a huge addition and would carry significant resource implications. There would not be a policy benefit in taking that approach, so I ask members not to support amendment 351.

I am not quite sure about the intent behind amendment 418, in the name of Tim Eagle, but it appears to seek to limit those who can submit a part 2 community right-to-buy application following pre-notification. However, that is already a feature of the bill. Community bodies that are not already in receipt of a section 34 letter must use the time that has been allowed by the prohibition on transfer to obtain that letter before they can submit a part 2 application. I ask the committee not to support amendment 418.

Michael Matheson’s amendments would introduce sites of community significance to the provision. We discussed that issue in detail in the previous session, so I hope that he will not move his amendments in that regard.

On my amendment 115. I say again clearly that we have listened to and considered the stakeholder feedback on the timescales for pre-notification. I know that, in its stage 1 report, the committee noted the recommendation of the Scottish Land Commission, which I have already referred to, for a single 90-day period, and it suggested that timescales should be

“adjusted to allow communities more time to note their interest and prepare an application.”

To that end, I have introduced amendment 115 to increase the second prohibition period from 40 to 70 days. Combined with the initial prohibition period of 30 days, that will give communities a total period of time of at least 100 days in which to note their initial interest and to prepare and submit an application to register a part 2 community interest in land.

Rhoda Grant’s amendments 352 to 354 on the pre-notification prohibition timescales would replace the two prohibition periods that can be imposed under pre-notification measures with two separate periods of 120 days each. I do not know whether that is the effect that was sought with the amendments, because the result would be that, even if there was no community body interested in the land in question, a prohibition of 120 days would still apply before the landowner could transfer the land. That is quite a long period of time to restrict a sale without due interest from a community body. For that reason, I ask members not to support those amendments.

On Tim Eagle’s amendment 113, I understand that he wants to encourage ministers to act quickly once they have received notification of a potential transfer and for the prohibition period to start running from that point. However, amendment 113 could have unintended consequences for communities. It also does not work with the separate provisions that calculate the period of time that communities have to engage with the process following that notification from ministers. I believe that it is appropriate for the prohibition to begin when the notification is made by ministers. However, I acknowledge the desire for greater clarity of timescales from a landowner’s perspective, and I want to assure Tim Eagle that those matters can be addressed through guidance.

Amendment 114 looks to place a duty on ministers to publish a notice that is provided to landowners to notify them that the prohibition on transfer has been lifted. It could have cost implications for the Scottish Government, but I would welcome further engagement with Tim Eagle to understand the reasoning behind the amendment a bit better.

Amendment 116 would place even more stringent conditions on communities than they would be subject to if they were submitting a regular right-to-buy application. That would turn pre-notification from a gateway into community ownership to something that would become a financial and bureaucratic hurdle. I oppose the amendment on that basis.

Proposals on the inclusion of a de minimis threshold were discussed extensively during stage 1. It is clear that stakeholders on all sides agree that non-controversial small sales should not be included in the pre-notification provisions. We have considered all the evidence that has been provided in that regard, and we have engaged extensively with stakeholders on the introduction of a de minimis threshold below which pre-notification provisions will not apply. I have lodged amendments 119, 128 and 137 to set out in the bill a de minimis exemption, which will depend on ministers making regulations at a future date to specify the area of land that will be exempted. That will enable the exempted area and related rules to be identified and agreed on following appropriate engagement and consultation. I hope that members will support the approach that I have set out.

There is a difficulty with amendment 419 in that it partially overlaps with the power in proposed new section 46L of the 2003 act to modify land that is subject to pre-notification provisions. If the intention behind the amendment is to allow for the introduction of something like a de minimis exemption, I think that that outcome will be better served by the amendments that I have lodged in that regard. Amendment 424 is related, because it would make those regulations subject to the affirmative procedure. Therefore, I do not support those amendments.

Amendment 420 would widen the circumstances in which ministers could lift pre-notification requirements on request from the owner. The bill allows for that to happen only in exceptional cases that are based on financial hardship. However, amendment 420 would give ministers quite wide discretion to decide that land was not subject to pre-notification requirements if they considered that that would be in the public interest. I disagree with the premise of the amendment, because I think that it is fair for pre-notification requirements to apply generally to all transfers of land within the bill’s scope, except in cases in which financial hardship is in play. The amendment would also risk creating administrative burdens and costs for the Government in relation to processing requests to lift the pre-notification rules on grounds other than financial hardship.

I also cannot support amendment 421, which seeks to remove composite holdings from land that will be affected by pre-notification provisions, because that would reduce the scope of the measures. I ask members not to support those amendments.

In a similar vein, Rachael Hamilton’s amendment 128A—I know that she is still to speak to it—seeks to amend my amendment 128, which would introduce the de minimis exemption. The purpose of amendment 128A appears to be to narrow the scope of the measures that ministers could take in future regulations to avoid misuse of the de minimis rule as a means of avoiding pre-notification requirements. I want to avoid transfers being artificially designed to avoid the need to pre-notify. It is therefore right that ministers have appropriate powers under proposed new section 46K of the 2003 act to provide for scenarios that will not benefit from the de minimis exemption. Amendment 128A would make it difficult to close any potential loopholes that could be used by those who had the time and resources to design schemes to avoid pre-notification measures in order to fly under the radar, so I cannot support the amendment.

As Tim Eagle has outlined, amendment 422 would raise the threshold from 1,000 hectares to 5,000 hectares, and amendment 423 would remove the definition of a connected person. Both amendments would reduce the number of landholdings that would be caught by pre-notification measures, which is why I do not support them.

That could well be. What is important is the consultation that we will undertake in relation to the land management plan, which I think would get into that in more detail. It is about having in the bill only higher-level statements about what we expect land management plans to contain.

That is why the first prohibition period—the initial 30 days—is so important. If there is no community interest, the prohibition is lifted at that point and the sale will have been delayed for only 30 days.

I will follow up in more detail with the convener on the point about the 70-day period, because I need to double check some things.

I do not intend to respond individually to every amendment in the group. Ultimately, we are trying to strike a balance between the bill and the detail that we will bring forward in the regulations on a land management plan. What is in the bill is not, by any means, intended to be an exhaustive list. We include in the bill high-level statements, which, following consultation, will be developed into more detail in the subsequent regulations. I restate that land management plans are not a requirement for landowners to take specific measures, but are intended to encourage landowners to consider what steps they may be able to take, and to provide more transparency on those plans.

I will turn to the different groups of amendments that we have just discussed. Tim Eagle’s amendments would remove most of the high-level statements of content and leave everything to guidance. On the other hand, Douglas Lumsden is taking the opposite approach and is, instead, requiring more detail on land management plans to be included in the bill. Some of what Douglas Lumsden is proposing can form part of the consultation and development with stakeholders that I talked about, and consideration of the impact of requirements will be key to ensuring that. I therefore recommend that the amendments from Tim Eagle and Douglas Lumsden are not supported.

Ariane Burgess’s amendment 26 requires information that I think it is right to have in the bill.

If they are a large landowner, that brings them into conflict with the measures that we are introducing through the bill, which is why we have that provision in place.

Returning to amendment 179, as Tim Eagle outlined, it would remove the ability of the land and communities commissioner to delegate to “any other person”. However, preventing the land and communities commissioner from delegating work would restrict their ability to carry out their functions. For example, the amendment could prevent the commissioner from commissioning a land agent or third party to provide technical expertise when they are preparing a report to support an investigation in relation to a transfer test. For those reasons, I encourage the committee to reject amendment 179.

I will try to address some of the points that have been raised so far in the discussion. On the whole, we have listened to the views of stakeholders on the creation of a land and communities commissioner. I also note the committee’s overall support for the creation of an LCC in its stage 1 report.

Putting the functions that relate to community engagement obligations and the transfer test with the LCC will allow the expertise of the Scottish Land Commission to be drawn on while ensuring that the LCC’s functions do not impact the advisory role of the land commissioners.

It would not be right to impose new obligations on the existing commissioners, who were recruited for different roles and to do different things from what will be required of the land and communities commissioner. However, I emphasise that the LCC will not be a stand-alone commissioner; they will be a member of the Scottish Land Commission and its board of commissioners. Collectively, the board is responsible for ensuring that appropriate governance procedures and oversight are in place and that the commissioners are fulfilling their responsibilities and duties appropriately.

For those reasons, I ask the committee not to support Tim Eagle’s amendments that would remove the position of a land and communities commissioner.

On amendment 463, the bill already requires the land and communities commissioner to have experience of land management and community empowerment, which reflect the role’s functions, so I do not think that what is proposed in the amendment is necessary, given the role’s functions. The amendment would restrict eligibility without any clear justification. Again, I ask the committee not to support it.

On amendment 177, although conflicts of interest would always be addressed through the appointments process, there is precedent for addressing specific conflicts in primary legislation. An example of that is in the Land Reform (Scotland) Act 2016, which sets out that a person may not be appointed as the tenant farming commissioner if they also own or tenant land that is subject to a relevant tenancy. On the LCC, because the conflict relates to ownership of or financial interest in an asset, it is appropriate to address that in the bill, as was done for the TFC role. I consider it appropriate to include the disqualification, given the nature of the conflict and the existing precedent. That is why I ask the committee not to support amendment 177.

Amendment 464 would be a departure from the proposed role of the land and communities commissioner, which is to support compliance with obligations and to support the transfer test process. As Mark Ruskell outlined, it is important to monitor the impact on communities of the developing natural capital markets, but the LCC would not necessarily be best placed to undertake that function. I therefore ask Mark Ruskell, on behalf of Ariane Burgess, not to move amendment 464, although I am open to further discussions to see how we can best monitor that issue. I hope that we can have those discussions ahead of stage 3.

On Michael Matheson’s amendment 178, I hope that I will be able to clarify the issues that he raised now. Ultimately, the amendment would put requirements on the LCC in relation to other commissioners at the Scottish Land Commission and functions around creating guidance on the community engagement obligations. I absolutely support the overall intent behind the amendment. However, the requirements in relation to other commissioners do not consider the existing governance processes that mean that further legislation is not necessarily required. The existing processes require the LCC to collaborate with the land commissioners where the LCC’s functions relate to the functions of the land commissioners, and for the land commissioners to collaborate with the LCC and to have regard to their functions, too.

Ultimately, I ask Michael Matheson not to move amendment 178 so that I can work with him on the requirements for the development of guidance on the community engagement obligations. Again, I want us to have those conversations in advance of stage 3.

On amendment 179, the bill allows the LCC to delegate its powers to any committee, any employee of the commission or any other person. That is ultimately the same as other members of the Scottish Land Commission. [Interruption.]

Sorry, convener—would you like to come in?

Again, if that is something that the landowner is considering, it is all very well to be open and transparent about it. Ultimately, through land management plans and the community engagement process, we hope that there will be discussion with communities and transparency and engagement throughout the process, so that we improve relationships. That can facilitate some of the other measures that the bill is introducing.

I return to amendment 26. Including that information in the plan will support meaningful engagement between communities and the landowner and improve transparency over how engagement has impacted the plan. The amendment addresses the recommendation that the committee made in its stage 1 report, so I support amendment 26.

I am not sure how Ariane Burgess’s amendment 2 would add to what we have already set out in relation to that matter. I am happy to have a further conversation with either Mark Ruskell or Ariane Burgess in relation to amendment 2. The remainder of Ariane Burgess’s amendments would add more detail to the bill. Although I acknowledge the approach that is being taken, it is important that certain requirements can be updated in future regulations to ensure that they remain relevant, so they are better placed in secondary legislation.

I will speak to my amendments first, before covering other amendments in the group. During the stage 1 debate, I committed to strengthening the bill, including by ensuring that the enforcement options that are available to the land and communities commissioner would act as a sufficient deterrent. I believe that my amendments, together with those that Bob Doris is proposing, as well as the amendments that Mark Russell has spoken to on behalf of Ariane Burgess, will all work together to achieve that.

Amendments 58, 60, 61, 67, 72 and 76 will enable the land and communities commissioner to investigate a possible breach without first receiving a report, if they consider it is appropriate to do so. That change will deliver the recommendation that both the committee and the Scottish Land Commissioner made at stage 1. The breach investigation process as set out in the bill is designed to support the collaborative and positive environment that has been created by the SLC’s long-standing work to support landowners to implement the land rights and responsibilities principles and deliver best practice. If a breach is found, the focus is on supporting the landowner to remedy the breach, with enforcement used only as a last resort.

Amendment 77 will allow the land and communities commissioner to redact personal information before sharing with the landowner information about a breach. I have listened to some of the concerns that have been expressed by stakeholders, including directly to the committee, and the committee’s recommendation on the issue, and I recognise that there might well be circumstances in which it would be appropriate to remove certain identifying details before reports are shared, in order to mitigate the risks to individuals. The approach that we have taken balances addressing those risks with the need to have a fair and transparent process. I ask the committee to support the amendments in my name in the group.

I welcome the intention of the amendments from Ariane Burgess, as well as some of the amendments from Rhoda Grant—in particular, amendments 345 and 346—as all of those aim to expand further the bodies that can report a breach. All the bodies in the list that would be added by Ariane Burgess’s amendments—community councils, national park authorities, the Crofting Commission and enterprise agencies—were recommended to be added by the SLC in its advice at stage 1. The bill as drafted includes the power to modify the list by regulations, to ensure that it remains fit for purpose, but widening the list at this point ensures that it will be fit for purpose from the point at which the bill is enacted. I therefore recommend that the committee support the amendments from Ariane Burgess.

Rhoda Grant’s amendments 345 and 346 overlap with Ariane Burgess’s amendments, particularly as they relate to community councils and the Crofting Commission. However, they also include grazing committees, community-controlled bodies and development trusts. I am open to the possibility of further bodies being able to report breaches. Bodies that have registered or are eligible to register an interest under part 2 of the Land Reform (Scotland) Act 2003, which deals with community right to buy, are already able to report a breach under the bill. In many cases, that will cover community-controlled bodies in the vicinity of the landholding. However, I offer to work with Rhoda Grant to better understand the reasons for including the bodies in her amendments and to develop an appropriate expansion of the list, potentially by way of an alternative amendment at stage 3. I therefore ask her not to press her amendments at this stage.

Amendment 89 from Bob Doris would raise the maximum fine for breaches of community engagement obligations to £40,000. The rest of Bob Doris’s amendments would introduce enforcement notices that would give the land and communities commissioner a tool to deal with cases of continued non-compliance. Together, those amendments would ensure that fines are a sufficient deterrent for non-compliance. I therefore recommend that all those amendments are supported.

Mark Ruskell’s amendment 97A would remove flexibility from the land and communities commissioner to work co-operatively with a landowner to resolve a breach without applying a fine. It is important to make sure that the enforcement tools that we have are robust, but it is also important to remember that the aim is not to apply fines but, ultimately, to encourage the landowner to resolve their breaches of their obligations. There could well be times at which it is not appropriate to impose a further fine. For example, there could be mitigating circumstances. The legislation needs to have the flexibility to enable the land and communities commissioner to consider such cases, so I ask the committee not to support amendment 97A.

Staying on that theme, I recommend that the committee support Tim Eagle’s amendments 408 to 410 and 414 to 416, because, although they do not change the effect of the bill, they emphasise that the land and communities commissioner will take a collaborative approach to their enforcement role.

However, I cannot recommend that the committee support Tim Eagle’s other proposed amendments. Amendments 82 and 90 would reduce fines to just £500. Those amendments are contrary to the recommendations in the committee’s report and to the evidence that was provided by a number of different stakeholders.

I imagine that, as you have just outlined, a scale would be implemented. We have that in other pieces of legislation. Flexibility exists. That would all be covered. There will be engagement with the land and communities commissioner when they take up their role, to ensure that they are adequately equipped to implement that enforcement regime.