Chamber and committees

The Government’s amendments in this group will take a major step towards consolidating and modernising our current small landholdings legislation, which dates from 1886 to 1931, ensuring that the legislation is fit for purpose and, ultimately, enabling it to meet the needs of Scotland’s existing small landholders, the next generation of small landholders and new entrants. It will also give greater clarity to landlords.

The amendments build on the changes that are already in the bill and modernise other important areas in the existing small landholdings legislation. Amendment 488 makes a number of changes to modernise the process of creating new small landholding tenancies and brings new and existing small landholdings within the scope of the schedule. The provisions set out important aspects of what a small landholding is, including who can be a small landholder and the types of land that are able to form part of a small landholding.

The changes make it easier to create a small landholding tenancy, remove references to redundant legislation and reform aspects of the existing process, including in relation to registration. Creating more small landholdings is a positive step for the next generation of farmers and small producers. The amendment also sets at 20 hectares the upper size limit for new small landholding tenancies entered into under the schedule, and it includes a power enabling the Scottish ministers to amend that in the future.

Repealing the provisions on the register of smallholdings that was created prior to world war one is really poignant. In St Andrew’s house, there is a marble memorial to staff of the Board of Agriculture who lost their lives in the great war. It was those people who held the register, and then, following their deaths, the main paper register was lost. It has never been recovered or kept up to date.

Amendment 508 further consolidates and modernises areas of the Small Landholders (Scotland) Act 1911. It sets out important provisions on the terms of the landholder’s tenancy, including how they must use the landholding and the landlord’s rights of access on to the holding. It entitles the landholder to compensation for damage from game or game management, which broadly mirrors what is in section 20 of the bill in relation to agricultural holdings.

Yes I have, convener.

I move amendment 488.

You will be pleased to know that you were not far off; we believe that there are about 51 to 59 small landholdings, so you were nearly there.

I appreciate the intent of what Rhoda Grant is trying to achieve through amendment 381, which Mercedes Villalba has spoken to, because crofts and small landholdings are key parts of the mix of tenures that we need in Scotland.

However, I cannot support the amendment as it is set out today, because there are a number of issues with it. The scope of the amendment is wide and it would apply to all land and all transfers. We also run into difficulty whenever we mandate that somebody must do something with their land or property. Instead, there should be a focus on the Crofting Commission prioritising bringing all current neglected crofts back into active use and for more active use of common grazings.

It is vital that croft land serves crofting communities well, because that is key to ensuring that we have a vibrant future for crofting. Provided that land is situated in the crofting counties, or in the designated areas, a landowner can apply to the Crofting Commission to have that land or part of it constituted as a croft. That is an existing and better solution to the same issue.

In the next group, we will consider amendments on the modernisation of the small landholdings legislation, which would include the creation of new small landholding tenancies. We should give those reforms time to have effect before adding new requirements, particularly such broad ones, because the reforms that we are introducing will help to address the issue with new entrants outwith the crofting areas and ensure that the legal framework that we have is more accessible and fit for the 21st century.

For those reasons, I ask members not to support the amendments.

Yes.

The key thing that we have been trying to do with the small landholding legislation is consolidate it, modernise it and repeal the redundant provisions rather than introduce anything particularly new. However, it is also important to set out that the amendments that we are introducing remove the need for the register of small landholdings, too.

I fully appreciate that, and I am happy to engage with Ariane Burgess on the matter as we move forward and look to work up the model lease, because that is where we could have those conversations.

When we consider the public estate, we should have a presumption of supporting those model leases as well as the creation of small landholdings. The provisions support generational renewal for rural communities; they also support new entrants, and they allow land to be more actively managed in order to meet some of the challenges that we currently face.

While I appreciate the issues that Ariane Burgess is trying to address with her amendment 380, I ask that, on the basis that I have outlined, she does not move it, so that we can take a longer look at some of the issues that she has raised.

That is where those amendments are important. To me, they address exactly that point by bringing the legislation into one place, to consolidate it and modernise it rather than keeping the redundant provisions. I do not agree that we discounted the views of small landholders on the issue, because, ultimately, what we are doing with this set of amendments, and with our amendments in later groups, is aligning all the provisions with the small landholdings and agricultural holdings provisions. I believe that that addresses the points that you raise.

Amendments 508A and 508B, in the name of Tim Eagle, seek to amend those changes to remove indirect damage from the type of game damage that the small landholder is entitled to be compensated for where damage has been caused by game or game management. That would result in the small landholder being entitled to be compensated only for direct damage. We have heard from stakeholders about the significant losses that can be incurred as a result of indirect damage to holdings and that it is important that small landholders and tenants are fairly compensated. That is why I would ask members not to support amendments 508A and 508B.

A fair compensation process that accounts for the damage caused by inadequate game management is needed. There is already extensive guidance that parties and the court can have regard to, including Animal Health and Plant Agency guidance, guidance for the shooting industry on reducing avian influenza disease risk, Scottish Government guidance on the declaration of an avian influenza prevention zone, and the shooting industry’s standing advice on bird flu and game birds. As I have done for tenant farmers and their landlords, I intend to ensure that training on assessing game damage will be made available to small landholders and their landlords in advance of game damage provisions coming into force.

Amendment 510 consolidates and modernises the provisions for small landholders’ security of tenure and the grounds on which they can be removed from the holding. Amendments 506 and 513 concern the parliamentary procedure for regulations that are made under the powers that are provided for in other amendments in the group. Amendment 506 provides that the regulations that are created under amendment 488, which enable the Scottish ministers to vary the upper size threshold for a small landholding or the land that can be taken into account in calculating the size of a holding, are to be subject to the affirmative procedure. Amendment 513 provides that regulations that are made under the compensation for game damage provisions are to be subject to the negative procedure, which is consistent with the equivalent powers for agricultural holdings in section 20.

Amendment 216, in the name of Tim Eagle, relates to the ability of the Scottish ministers to specify by regulations the basis on which a valuer is to assess the compensation payable to a small landholder. The bill simply provides a mechanism for future flexibility, if required, and it sets out that changes would be made by regulations. The amendment would require the Scottish ministers to make regulations for every valuation, even if they were not considered necessary, which I do not think is proportionate for either party. That is why I do not support amendment 216.

Amendment 499 restates an existing provision that limits the ability of parties to contract out of the rights of small landholders under the schedule. Amendment 511 repeals redundant sections of the landholders acts and sets out which areas will continue to apply to small landholdings. Amendments 500, 509 and 512 change various definitions in the schedule, including those of small landholding and cultivation. The other amendments in the group—amendments 509, 512, 491 to 496 and 498—make consequential or minor changes to the terminology used in order to reflect the changes provided for in the other amendments in the group. Combined, the changes have the potential to reinvigorate the small landholding sector and breathe new life into smaller areas that are suitable for new entrants to access. I ask members to support my amendments.

I see that the convener is making eyes at me, as if he wants to intervene.

I understand Fergus Ewing’s reasons for amendment 528 and the need for clarity on the basis for the valuation for resumption. It is not necessarily necessary for the 2016 act to detail all the topics that the tenant farming commissioner can issue codes of practice on, but I appreciate why the tenant farming sector might also wish to see that in the bill itself. There are some particular issues with the wording of the amendment, but I am happy to work with Fergus Ewing to revise amendment 528 ahead of stage 3, so, on that basis, I ask him not to press the amendments at this stage.

Tim Eagle’s amendment 223 seeks to reverse the changes that the bill makes to provide that regard is given to the relevant code of practice during arbitration proceedings concerning a small landholding. The provision is equivalent to that for tenant farmers and reflects the expanded scope of the tenant farming commissioner in relation to small landholdings under section 9 of the bill. Ultimately, the amendment would mean that a code of practice would not have the same status in arbitration proceedings relating to small landholders as it would for proceedings relating to tenant farmers.

I was not sure what the rationale behind the amendment was, so I appreciate what Tim Eagle has outlined today. However, I want to clarify that the provision relates to codes in an arbitration context, not an absolute right to buy. However, if he wants to engage in further discussion with me about that, I am more than happy to do that.

I will now turn to Emma Harper’s amendments. Although I understand the reasons behind amendment 501, expanding the group of people who could apply to the TFC requires more consideration in order to assess whether the current procedures for reporting an alleged breach would continue to be suitable. I absolutely recognise the importance of RSABI’s work and its importance to the industry, which has been touched on, including in relation to some of the delicate situations that it has to navigate.

I recognise that the amendment would also appear to enable representative bodies in the sector to report alleged breaches to the TFC in relation to their members or people they might be engaging with. Again, we will have to consider the wider implications of that and any potential unintended consequences. However, I would like to work with the member to explore the issue further and to ensure that the process for reporting breaches meets the needs of those in the sector. I would ask her not to move amendment 501 today.

In relation to amendment 502, I appreciate that some in the tenant farming sector would like to see increased powers for when the TFC finds that a person has not complied with a code of practice. The purpose of the codes of practice is to encourage and promote best practice in how landlords and tenants manage their relationships. However, parties are not required to comply with the terms of a code of practice—it is guidance. That means that there would be significant difficulty with imposing penalties for non-compliance. Any changes to the role of the tenant farming commissioner in that context would need to be considered more widely than solely looking at the question of enforcement. We would have to go through some robust stakeholder engagement as part of the process.

I am happy to commit today to consulting on the role of the tenant farming commissioner in inquiring into and reporting on alleged breaches of codes of practice. Any consultation could consider wider matters, and I would aim for such a consultation to take place and to report before the end of the current parliamentary session. On that basis, I ask Emma Harper not to move amendment 502.

First, I will set out that, in November last year, we published our “Natural Capital Market Framework”, which provides the ethical framework that Rachael Hamilton is looking to establish. It sets out our six principles of responsible investment in natural capital, with actions to support their delivery. On that basis, I do not support amendment 478. However, if Rachael Hamilton would like to raise directly with me specific circumstances or issues in relation to the matters that she has spoken about tonight—whether those matters relate to my portfolio or to my colleagues’ portfolios—I will be happy to look into those further.

I turn first to the amendments that were lodged by Tim Eagle. Amendment 183 would mean that, for the purposes of the model lease, land would not be used for an environmental purpose if it was used in a way that contributed towards increasing or sustaining biodiversity. Amendment 487, as Tim Eagle outlined, would simply remove section 7 in its entirety, including the requirement for Scottish ministers to publish a model lease for the use of land for environmental purposes.

I think that it would be a backward step if both those amendments were accepted. It is recognised that we all need to do more in tackling the climate and nature crises. Stakeholders have called for the provisions in section 7 as a means of management that would help community groups looking at managing woodland, for example, or help environmental organisations.

With regard to some of the points that have been raised this evening, there would be wide engagement and consultation on the model lease. That would be vitally important to the work that we take forward—