Chamber and committees

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.

As far as I am aware, there is no legal definition of what that would mean. We would be inserting a legal definition of something, which would have wide-reaching ramifications beyond what we have set out in the bill. I am about to come on to a few other points and issues in relation to that.

A wider point has been raised about measures that are being taken in the urban environment. It is important to remember that the bill was intended to deal with a specific problem that was identified by the Scottish Land Commission, which was about the issue of the concentration of land ownership, particularly in rural Scotland. However, that is not to say that no other work is going on to address some of those issues in the urban environment. Monica Lennon raised that matter with me during stage 1 consideration of the bill.

I am about to come on to the community right-to-buy powers and the on-going review of them. Significant work has also been taking place in relation to compulsory purchase orders and compulsory sales orders. All those different mechanisms will help to deal with some of the issues in the urban environment. I do not think that we can address those issues in the bill—in this legislative vehicle—alone.

Different stakeholders have voiced support for the concept of sites of community significance, but they have done so in different ways. Some have sought to expand the scope of the bill; others have sought to limit it and to require communities to undertake more work before the provisions in the bill could apply.

The process of assigning sites as being of community significance would be complex, and the enforcement and monitoring of any registration could have significant costs for the Scottish Government, which would have to establish a way to register the sites, and for local authorities, which might be required to be involved, too. There has not been any impact assessment to consider how many more sites could be brought into scope and what the costs of that could be for landowners and the public sector.

The benefits of including sites of community significance are unclear, and how the lotting provisions and transfer test would be applied to such sites is also unclear. There is an existing process through which urban and rural communities can register a community interest in land through the community right-to-buy processes in part 2 of the Land Reform (Scotland) Act 2003. An additional process could add significant cost and complexity for both the landholder and the public purse, with unclear and limited benefit.

In rural areas, there is a need to add an existing route to the community right-to-buy process, which is why we have introduced the notification measures in the bill, but we do not believe that that would be proportionate when there are no issues of concentrated ownership. In fact, if we were to expand the provisions of the bill to apply beyond the target area of large landholdings, that could risk taking the bill away from the evidence base on which we made the proposals.

There would also be issues with legislating in that space before we have been able to consider the findings of the community right-to-buy review, which is still under way and is due to report by the end of this year. I appreciate the concerns that were raised by the committee in relation to that review. If legislative changes are required as a result of that review, we would be happy to propose the right legislative vehicle to address those.

Although I appreciate the approach that Michael Matheson has taken, I believe that it would take the measures in the bill away from what they were intended to do and beyond the issues that they were designed to address. I ask him not to press amendment 11 or move amendments 35, 42 and 106.

Through amendment 22, Bob Doris proposes that the Scottish ministers publish a statement when they are exempting any land that would otherwise be subject to future regulations that require landowners to have a land management plan. As Bob Doris has outlined, and as I said in the conversations that we have had, I would expect the Government to do that as a matter of course. I am always nervous about adding requirements to a bill that I do not believe are necessary, but I am happy to support amendment 22, although I might revisit it at stage 3 if any unintended consequences are found or drafting issues are identified.

Tim Eagle’s linked amendments 398, 399, 402, 403 and 406 seek to disapply the community engagement obligations in certain circumstances, including when land is used mainly for agricultural purposes or the owner has not engaged with a community body in the past five years. Rachael Hamilton’s amendments 400 and 404 similarly seek to disapply the obligations when the land is transferred to a new entrant to farming or agriculture business.

I am mindful that the obligations and thresholds should be designed to avoid disproportionate duties on small-scale landholdings or smaller farms. That is why I do not propose to lower the threshold below 1,000 hectares, at which level only the largest of farms—1.4 per cent of Scotland’s farms—are expected to be in scope. We will make all efforts to ensure that the community engagement obligations are as straightforward as possible and that they align with other plans and requirements where possible, to minimise duplication. However, I do not believe that it is right to disapply those obligations to as broad a class of land types and landowners as the amendments suggest. That is why I recommend that the amendments should not be supported.

Tim Eagle’s amendments 37, 41 and 44 would remove the bill’s definition of what constitutes a composite holding for the purposes of community engagement obligations and, instead, via amendment 405, leave those definitions to future guidance to be prepared and published by the Scottish Land Commission. I appreciate that there is often quite a lot of discussion in Parliament about what should be in a bill and what should be left to regulations and guidance. In this case, however, it is right that Parliament can consider what constitutes composite holdings in the bill. Those can, of course, be changed by any future regulations, so I ask members not to support the amendments.

Amendment 39 would raise the threshold for land on which community obligations may be imposed from 3,000 to 5,000 hectares. That would dramatically reduce the ambition of the bill, particularly when there has been such widespread support for land management plans and the community engagement obligations, as the committee will have seen when it took evidence on that.

Amendment 401 would increase the percentage of land that forms an island under the current islands criterion to 33 per cent from 25 per cent. As I have outlined, I propose lowering the threshold to 1,000 hectares, which would then remove the islands criterion. That is a sensible compromise and I therefore recommend that the amendments are opposed.

Tim Eagle’s remaining amendments in the group—104, 105 and 110—would remove ministerial powers to modify chapter 2 of the 2016 act by regulations and instead add more restricted powers to modify the chapter. Amendment 110 would stipulate that future regulations could not reduce the number of hectares in section 44D of the 2016 act in relation to the land on which obligations would be imposed.

Mercedes Villalba’s amendment 109 would do almost the complete opposite of what Tim Eagle is trying to do. It would restrict the power to modify chapter 2 of the 2016 act by stipulating that future regulations could not increase the thresholds for land management plans and community engagement obligations.

Both approaches would substantially restrict Parliament’s future flexibility. Although I probably lean more towards supporting the intent behind Mercedes Villalba’s amendment than Tim Eagle’s—I know that it was worth a try—as a parliamentarian, I am mindful of constraining the actions of future Parliaments, which is why I do not support the amendments.

As I have outlined, we are probably not too far apart in our thinking, but these are new measures that we are introducing so, being responsible in our role, it is only right that we monitor their effectiveness and look at any potential impacts. I do not want to tie the hands of any future Parliaments in relation to that, which is why I propose not to support the amendment. I am happy to have further conversations with Mercedes Villalba after stage 2 as we look towards stage 3, but I am not minded to support amendment 109 at this stage.

Ariane Burgess’s amendments 3 and 4 would lower the threshold for land on which community obligations might be imposed to 500 hectares. For the reasons that I outlined earlier, I believe that that is too low. I want to ensure that the proposals are justified in relation to the policy aim of not having a disproportionate impact on smaller landholdings. The amendments would impose costs on a much more significant set of landowners. As I outlined in my response to Mercedes Villalba, the provisions in the bill are new and it is important that the Government can review and monitor how they are being implemented. We would have the ability to seek to adjust the thresholds in future if that is required. That is why I oppose the amendments.

I thank colleagues around the table for their engagement on the bill more widely, but particularly on the matters that we are discussing in this group in relation to the process for and implementation of land management plans.

I welcome amendment 20, lodged by Bob Doris, which looks to require specifically that regulations ensure that landowners engage with

“tenants, crofters and small landholders with rights associated with the land on the development of, and significant changes to,”

land management plans. That was always going to be the intention of the regulations, so I am happy with that amendment, which makes things more explicit.

Amendment 33 from Bob Doris and amendment 10 from Tim Eagle seek additional guidance on how landowners will comply with their land management plan obligations under the regulations. As it was always the intention for there to be additional guidance, I am happy for that to be made explicit in the bill.

For drafting reasons, however, I ask Bob Doris and Tim Eagle not to move their amendments, and I am happy to work with them ahead of stage 3 to produce amendments that meet the stated aims in both. Each takes a different view on how guidance must be produced, what it should cover and who should produce it; one suggests Scottish ministers, while the other suggests the new commissioner. I agree that the content of both the amendments should be covered in further regulations or in guidance, and I will consider how best that can be reflected in the bill and whether that responsibility should indeed lie with ministers or with the commissioner.

Amendments 21 and 315, on the proposed timescales for the review of land management plans, seek to increase the intervals of reporting. Ariane Burgess’s amendments in this group seek to introduce a new plan period of 20 years, with a review and a report every five years. I do, of course, understand the rationale for that, which is to encourage plans to set out activity for the next 20 years. However, the bill already requires plans to set out a long-term vision, and it is appropriate for guidance and regulations to set out more detail of what that means, including the timespan that the plan should cover.

In its stage 1 report, the Net Zero, Energy and Transport Committee noted that the five-year reporting cycle that we have set out seeks

“to strike a balance between ensuring plans remain current and not imposing unrealistic or unhelpful obligations on landowners.”

To me, that indicates that what we have set out does strike the right balance, and to that end, I ask members not to support amendment 21 from Tim Eagle, amendment 315 from Rhoda Grant or amendments 311, 313, 314, 316 and 337 from Ariane Burgess.

That would be for review of the plan, not its duration. As I have set out in my comments, we would look to regulations and further guidance to set out what the overall duration of the plan would look like. Hence, I feel that we have struck the right balance in having the review every five years.

It is not for me to set that out right now, because we would need to do more work on the matter and have more engagement across the piece. In relation to what Rhoda Grant and Ariane Burgess have proposed, I feel that there is an agreement to be reached between us, but I do not think that fixing this in primary legislation is the way to do it.

Amendments 390, 18, 391, 19, 392 and 396 from Tim Eagle look to do away altogether with the requirement for regulations to provide for obligations to ensure that there are land management plans and engagement with communities on them. They seek to require regulations only to provide that landowners ensure that they engage with a restricted category of persons—and only on the development of plans, not on significant changes to them—and they also seek to introduce in regulations an ability for landowners to report members of the community. I feel that those amendments are against the spirit of what the bill is looking to achieve, and I ask members not to support them.

I also recommend opposing amendment 340 from Rhoda Grant.

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.

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 would be happy to have that further discussion with the member. As I have said, no concern has been raised with me directly, which is why I was wondering why the amendment had been lodged.

It would be important for somebody acting on behalf of Scottish ministers to engage in the same way that we would expect of any other large landowner, instead of our expecting a separate person to take on that responsibility. We engage with our tenants and local communities when we develop long-term proposals on crofting estates and gather information on that, and putting that duty on to an independent person or an external party instead of the Scottish Government would amount to an information transfer process, from the Scottish Government to someone else, for the purposes of writing a plan. Such a move would have resource implications, too. It is also important that we undertake our own engagement with tenants and crofting communities on the crofting estates.

For those reasons, I ask members not to support amendment 335. Regardless of that, though, I want to pick up that conversation with Rhoda Grant and get more of an understanding about some of the concerns that she has heard.

Lastly, I urge members not to support Ariane Burgess’s amendment 338, which seeks to place an obligation on the owner of land to implement the land management plan. I have concerns about that, as land management plans are not necessarily intended to control how land is used or managed but to provide greater transparency and engagement on that. I offer to work with Ariane Burgess ahead of stage 3 to see whether we can bring forward an alternative amendment that, ultimately, has the same aim. For example, it could require a landowner to set out in the review of a plan any progress that has been made on the implementation of the actions set out in that or previous plans.

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.