Chamber and committees

When we introduced the bill, the transfer test that we set out, which did not explicitly use the term “public interest”, was framed very much in that way. That is because, as Mark Ruskell spoke about, when we are justifying interference with property rights or any interference with article 1 of protocol 1 of the ECHR, we need to ensure that that is proportionate, that it has a legitimate aim and that we have the evidence base for that intervention. We framed that as a transfer test. In essence, that is a public interest test, which is why I am agreeing to the amendments that explicitly state that, because we have to qualify that and set out why it works in the way that it does.

I cannot support amendment 310, given how descriptive it is. I would have to take advice on the implications of Rhoda Grant’s suggestion, but I feel that we might not be able to support that. I am happy to support Michael Matheson’s amendments because of how they are framed.

Amendment 310 would place duties on the Scottish ministers and on other public bodies for purposes that are completely outside the scope of the bill. Such substantial alterations to public decision making should not be made without more detailed consideration and consultation.

There are also serious issues with amendment 339, which would result in a departure from the policy aim of land management plans improving transparency and engagement between landholders and communities. The amendment would create a complex and potentially quite confusing landscape for the landowner when preparing a plan, and it would risk those plans becoming a box-ticking exercise.

Amendment 342 attempts to provide ministers with powers to amend definitions of land to which community engagement obligations would apply. That can already be delivered through existing powers in the bill to update definitions of land through regulations.

That is why I ask members not to support amendments 310, 339 and 342. I also ask members not to support amendment 348, because it is consequential to amendment 342.

Amendment 427 from Tim Eagle would allow the Scottish ministers to determine that a lotting decision was not required if that was in the public interest. For ministers to be able to make that assessment, they would need to consider information about the landholding and determine whether lotting would be beneficial. That is the same information that they would need to consider to make a lotting decision. It is already the intention that transfers are able to be screened out more quickly when that is appropriate. I know that Michael Matheson’s amendment 156 will allow for further guidance to be set on how that screening will take place.

I ask members not to support amendment 427 or amendment 460, which is reliant on amendment 427.

Amendments 174, 174A and 174B from Mercedes Villalba would introduce a test on buyers of land as well as a presumed limit on land ownership of 500 hectares. The amendments are a significant departure from the bill and are not supported by the evidence base. They would give the Scottish ministers a mechanism to entirely block proposed transfers in a wide range of circumstances, based on their assessment of the public interest or on the evaluation of the buyer.

The interference in property rights that would result from those proposals would require a rational and coherent justification based on evidence. The evidence on which I have proceeded is concerned with the effects of concentration of ownership on communities. There is no rational link between that evidence and the proposals that are set out in the amendments.

I have nothing to add, convener.

Amendment 12 agreed to.

Amendment 13 moved—[Mairi Gougeon]—and agreed to.

As I have said in previous evidence sessions with both the Delegated Powers and Law Reform Committee and this committee, it is important for the Scottish Parliament to have the appropriate scrutiny powers for each regulation that stems from the bill. I have carefully considered the committee’s recommendations and have lodged a number of amendments in response to many of those.

Some of the recommendations were to include in the bill statutory duties to consult. As I have set out in various responses, I would already expect the Government to undertake the appropriate consultation, but I am happy to add statutory duties to consult across a number of powers in the bill. Amendments 15, 108, 132, 162, 165 and 170 do that.

Amendments 12 and 13 will make a technical change to the power in the proposed new section 44A of the 2016 act, requiring ministers to consult such persons as they consider appropriate before “laying”, rather than “making”, regulations.

Amendment 175 would insert section 67V(4) into the Land Reform (Scotland) Act 2003, which would provide a power to the Scottish ministers to make further provision for compensation through regulations, including how claims for compensation are to be made and how the amount payable is to be determined. The power is currently subject to the negative procedure, but the Delegated Powers and Law Reform Committee recommended that use of the affirmative procedure would be more appropriate. Although I considered that use of the negative procedure in this instance would make the regulation-making power equivalent to similar powers in previous land reform legislation, I am happy to accept that recommendation, and amendment 175 will ensure that the power is instead subject to the affirmative procedure. Under amendment 165, there will be a statutory duty to consult on any such regulations.

I hope that I can go some way towards meeting Tim Eagle’s intentions and what he is trying to achieve with his amendments in the group. His amendment 417 would create a pre-laying procedure for regulations to modify chapter 2 that are made under proposed new section 44M of the Land Reform (Scotland) Act 2016. I appreciate that a pre-laying procedure was recommended by both this committee and the Delegated Powers and Law Reform Committee. Again, I want to ensure that Parliament has the appropriate scrutiny powers, but the Parliament will have to agree to any such regulations that are made as they are already subject to the affirmative procedure, and there will be a statutory duty to consult. The bill already specifies the land in relation to which those obligations may be imposed by regulations—that is in proposed new section 44A of the 2016 act and in the list of persons in proposed new section 44E(2). Any regulations that are made in future would really be to modify what is already there rather than to introduce new powers. It is more common to see a pre-laying procedure for the latter. That is why I recommend that the committee opposes amendment 417.

Amendment 458 would attach a similar procedure to the power in proposed new section 67V(4) of the Land Reform (Scotland) Act 2003 to make further provision about compensation. The DPLR Committee recommended that that power be subject to the affirmative procedure, and my amendment 175 will ensure that it is. The DPLR Committee also recommended a statutory requirement to consult, which my amendment 165 will introduce. It did not recommend a pre-laying procedure, which is why I ask the committee not to support amendment 458.

Amendment 161 is similar to my amendment 162. It would add a statutory duty to consult in relation to the power in proposed new section 67S of the 2003 act, but it includes a requirement to prepare and publish a report on the consultation. It is standard practice to publish the details of any consultation, so that seems unnecessary. In addition, the amendment suffers from a drafting flaw, because the requirement for regulations that are subject to the affirmative procedure should be that there is consultation before they are laid rather than before they are made. I therefore ask the committee not to support amendment 161.

Amendment 165A would amend my amendment 165, which creates a statutory duty to consult in relation to the power in proposed new section 67V of the 2003 act, in order to require ministers specifically to consult a person who is an accredited valuer of land. Given that that section concerns compensation, the seeking of advice from accredited persons or appropriate bodies would be an expected part of the development of regulations, so I do not think that amendment 165A is necessary. It would also be unusual to require an individual to be consulted, rather than a category of persons or a professional body. Those are the reasons why I ask the committee not to support amendment 165A.

However, I am keen to work with Tim Eagle on the remainder of his amendments in the group—amendments 217, 219 and 220. Like others, they would expressly require Scottish ministers to consult people that they considered appropriate before making regulations under certain paragraphs of the schedule. I am open to including in the bill a requirement to consult in relation to those powers in order to reflect the intention of those amendments. If Tim Eagle is happy not to press them, I will be content to work with him on them ahead of stage 3.

I move amendment 12.

I am not ruling anything in or out at this stage, because we have not yet introduced a threshold of 1,000 hectares. It is important that we review and monitor how that is implemented and see how it is operating once it has been introduced.

Mercedes Villalba’s amendments 43 and 47 would remove the requirements for single landholdings to be a contiguous area of land and for composite holdings to be contiguous with each other. That would mean that, if a landowner owns more than 1,000 hectares in total across all their Scottish landholdings, the provisions in the bill would apply.

I appreciate that some members and stakeholders more broadly want landholdings where there is a larger distance between holdings to be brought into scope. I have sympathy with that, but the evidence base that underpins the bill as introduced focuses on the concentration of ownership and its impact on local communities. We do not have the evidence base to justify measures that tackle aggregate holdings across Scotland, as I outlined in my response to Douglas Lumsden.

Yes.

I said earlier that I would be more than happy to have a conversation about that, but I repeat that, because of some of the issues that have been raised, I would need to seek advice to gauge whether that would be possible.

Community views are hugely important, and I will turn to that issue later. The mechanisms to deal with those processes—ultimately, through planning—are important in ensuring that those views come through.

Amendment 310 from Ariane Burgess and amendments 339 and 342 from Rhoda Grant seek to introduce a definition of the “public interest” in the bill for various purposes. Although I support the aims that have been referred to in relation to a definition, I do not think that it is necessary or helpful to attempt to define the public interest in the bill in that specific way. That is consistent with the opinion of the Court of Session. In the case of Pairc Crofters Ltd v the Scottish ministers, Lord President Gill noted:

“The public interest is a concept that is to be found throughout the statute book. There is no need for a general definition of it. It is for the Land Court and the Ministers to assess the public interest on the facts and circumstances of the case. A general statutory definition of the public interest, if one could be devised, would be unhelpful”.

It is unclear how ministers or landowners would be expected to fulfil the duty that is set out in amendment 310, which would require ministers and other public bodies to

“have regard to the public interest in land reform.”

That would include many objectives that are listed in the amendment and guidance that is produced by ministers in relation to functions in a wide range of legislation, much of which is not even related to land reform.

We are addressing that through the measures that we have introduced in the bill by, for example, looking at the management of our land more widely and making that more transparent, and through the transfer test and our lotting proposals. Ultimately, that is about trying to diversify land supply and land ownership in Scotland. That is why we have prohibitions in place so that land cannot all go to one owner. Does the bill address, or would it ever have been able to address, the significant issues in relation to the management and ownership of land in Scotland? No, but we have to ensure that we have an evidential basis for the measures that we introduce, so that they withstand any challenge that could come our way.

I have mentioned other work that is going on that could potentially help in the urban environment. There is also the community right to buy review. The bill is one step right now. It cannot fix all the problems, but we are introducing new measures and policies that I hope will have a significant impact and will be another step on the land reform journey.

I will comment briefly on Douglas Lumsden’s amendments 343 and 344. As I said when I commented on similar amendments from Douglas Lumsden in group 1, the amendments relate to a matter of interest in my constituency. I make it clear that I am here in my capacity as a minister of the Scottish Government. The position that I am presenting reflects the collective view of the Scottish Government and concerns a matter of law and policy for which I have ministerial responsibility.

Separately, and in line with the Scottish ministerial code, I have made my views and those of my constituents known to the responsible minister in the appropriate way. However, the issue under discussion today is distinct from that constituency interest, and my contributions today should therefore be understood as reflecting the Government’s position and not a personal or constituency-specific stance. Having said that, I am not sure how Douglas Lumsden’s amendments would fit with the current drafting of the bill, which is why I recommend that members oppose the amendments at this stage.

I appreciate that there are many amendments in the group. I will try to get through them as best I can and will speak to the amendments in my name before turning to some of the others.

This debate is important because it goes to the heart of what I think is a fundamental policy decision in the bill. It is one that we gave a great deal of consideration to prior to the introduction of the bill, because we want to ensure that the proposals can be applied as widely as possible.

In the bill as introduced, community engagement obligations were to apply to owners of large landholdings of more than 3,000 hectares so that there would not be a disproportionate impact on small businesses, such as many farms. I did not want to disadvantage those businesses relative to larger landholdings that would have more staff and more capacity.

These are new proposals and I have a responsibility, in my role as cabinet secretary, to ensure that they are proportionate and justifiable. At stage 1, the committee said that it saw some merit in aligning the size of thresholds across the bill in order to create policy cohesion and, importantly, to give clarity to stakeholders. I said in my response to those recommendations that I also saw some merit in that, both because of the simplicity and because it would allow all the proposals to work together.

Amendment 38 would therefore lower the threshold relating to land on which community obligations might be imposed from 3,000 to 1,000 hectares. That would align the thresholds across land management plans, pre-notification and transfer test provisions and would, in essence, cover about 55 per cent Scotland’s land.

As members know, the bill already gives the Government flexibility to seek to alter the thresholds, based on experience. We should not forget that these are new and ambitious provisions and it is right that the Government should review their operation to ensure that they are having the intended effect.

Amendments 34, 36, 40 and 50 are largely consequential to amendment 38. Amendment 40 would remove the separate category of landholdings exceeding 1,000 hectares on inhabited islands, given that the threshold for all landholdings would be lowered to 1,000 hectares.

I turn to amendment 49. The bill as introduced requires that land that is owned by the same person, or by connected persons, must share a boundary in order to be considered as a holding that counts towards the thresholds. During stage 1, the Scottish Land Commission noted that there might be a number of titles where public infrastructure, including railways and roads, will sever large landholdings, dividing them into smaller areas, and that those individual landholdings might then fall below the threshold that we had set out. The SLC recommended that any land that is split by a railway or other public infrastructure should be treated as a single holding and the committee also recommended that approach in its report, noting that there could otherwise be a loophole. I share the committee’s view and consider disregarding any such splitting of landholdings to be proportionate and justifiable for the purpose of defining the threshold.

The amendment does not focus directly on public infrastructure because there could be factors other than train tracks and public roads, including private roads held by other landowners, to which similar considerations would apply. Following consideration of the width of railways and road infrastructure, amendment 49 allows for non-contiguous areas of land to form a holding, provided that they are within 250m of each other. That allows us to address a known issue, while still being in line with the evidence base that we have that concentration of ownership can impact local communities.

Again, I would have to fully understand that and see what the implications might be, but I am more than happy to have that conversation with the convener between stages 2 and 3. I still ask that members support my amendments in the meantime.

The final amendments in the group—amendments 45, 46 and 48—concern how composite holdings are defined in the bill. They are technical amendments that strengthen the definition of a composite holding and ensure that multiple holdings that are owned by connected persons form together to comprise composite holdings in the same way in which holdings that are owned by the same person form a single holding.

Those amendments will also support the introduction of non-contiguous holdings, which I have just spoken about, in relation to amendment 49. I therefore recommend that the committee supports the amendments in my name.