Chamber and committees

Would you like me to come in at this point, convener?

I will just finish the point that I have started.

Mark Ruskell’s amendments 49A and 49B would include non-contiguous areas of land, provided that they are within 10 miles of each other. That figure is much larger than the 250m figure that I suggested, which was based on the recommendations of the Net Zero, Energy and Transport Committee and the Scottish Land Commission. However, I am mindful that our evidence is focused on nearby landholdings. Broadly, the greater the distance that we use to allow non-contiguous landholdings to be treated as contiguous, the further the intervention moves away from the original evidence base, as I have outlined today.

I would like to think that there could be some middle ground in relation to that. Mark Ruskell might well touch on some examples of particular issues that he would like to address that he has referenced previously, so I would like to work with him on those amendments.

I will go back to Mercedes Villalba for her intervention.

I want to make it clear that that is why consultation and engagement on what the land management plan will include are hugely important. That will be a vital part of the process.

You also raised some examples of the costs that will be associated with the plan. Figures have been set out in the financial memorandum, and the £15,000 figure has been mentioned a couple of times today. However, that was an expected cost for a complex and quite extreme example. Also, it is not as though that would be a recurring cost every five years. Again, we need to consult people and ensure that we get the level of detail right, which is why we have set out the process. I hope that the member recognises that in relation to the amendments that we are considering and our discussions on the bill today.

I would be happy to share more information with Mark Ruskell and other committee members. As Mercedes Villalba referenced in her comments, we have referred widely to the public interest in legislation, so we cannot just set out what the public interest is in the bill that is in front of us. Amendment 310 is very descriptive—as I set out with reference to the case law, it is too descriptive. It would not be helpful to have a definition that would restrict how “public interest” was interpreted.

I thank members for all their contributions to the debate on this group of amendments. We are talking about really important matters. It is clear that, across the committee, there is broadly a strong desire for the public interest to be at the heart of the decisions that we take, but there are a wide range of views as to what that might mean and what that could look like.

I have listened carefully to the clear view that has been expressed by stakeholders and the committee that the transfer test that is set out in the bill should take greater account of the public interest. In my response to the committee’s stage 1 report, I was clear that any reframing of the test would have to be consistent with the evidence base for it, which highlights the damaging impact that concentrated land ownership can have on the sustainability of local communities. I welcome the amendments that Michael Matheson has lodged—amendments 150, 151 and 158—because they will make it clear that ministers will require land to be lotted only when they consider that that is in the public interest, so the amendments remain consistent with the evidence base.

We recognise concentration of land ownership as a problem. The policy aim and ultimate objective here is to address the effect of the concentration of land ownership and its impact on local communities and on the supply of land to local communities. That is why we have set out the measures in the bill and why we are directly trying to address those problems.

I am not concerned about that at the moment. The member will no doubt be aware of the Crofting and Scottish Land Court Bill, which was recently introduced.

Again, there is no obligation; it is about considering requests from crofting community bodies. Although the drafting is not quite right, I support what the amendment is trying to achieve.

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.

If you are talking about aggregate holdings—holdings across Scotland that potentially fall under the thresholds—they would not be caught by the measures. Essentially, we need to make sure that we have the evidence base for that and that we address the impact of the concentration of land ownership. The amendments that I am bringing forward do not cover aggregate holdings, because those would be across Scotland.

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 of 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.