Chamber and committees

Thank you, convener. My colleague Gillian Martin has recently met community energy stakeholders in relation to proposals to use public land for community energy projects. Either I or my colleagues would be happy to speak to Ariane Burgess on the matter, too.

Notwithstanding the concerns that the convener has outlined, there are a few practical difficulties with amendment 467 as it stands. For example, the proposed changes to the Community Empowerment (Scotland) Act 2015 appear to apply to all land and buildings owned by all public authorities, irrespective of the nature of their use or of their location. It is unclear what is within the scope of the phrasing.

Public authorities have to consider five criteria in particular when they are assessing asset transfer requests, which include matters such as public health and economic development. Amendment 467 would add an overarching green energy priority, which would not work in practice. It would make it too hard to ensure that we give due weight to the particular merits of an application.

However, I appreciate what Ariane Burgess is trying to achieve and I am more than happy to have further discussions with her and with my colleague Gillian Martin.

I thank everyone for the points that they have made and for the discussion.

Throughout the committee’s evidence taking on the bill, I heard the criticism on the timing of the community right to buy review. I accept that, as well as the points that you and Mercedes Villalba have made on that, convener. That is a significant piece of work, and it is important that we continue with the significant work that we are doing now on the Land Reform (Scotland) Bill.

Some of the examples that Mark Ruskell touched on are really important, and they highlight why the review is so important. That is the only reason why I would ask members largely not to support the amendments in this group. It is purely because they relate to exactly the kind of issues that we need to tease out in the course of the review.

I am more than happy to have discussions with Mark Ruskell and other members of the committee to talk about their concerns in more detail. As I set out in relation to a point from Douglas Lumsden last week, we are looking to publish the consultation on the community right to buy review in the coming weeks. The intention is to outline and publish the overall outcome of the review towards the end of this year. I am happy to engage in conversations with members throughout that process, so that we can pick out specific examples that highlight issues with the existing community right to buy.

I was grateful to hear from Monica Lennon about the rationale behind amendment 514. I do not believe that it is necessary, because the right to buy does not exclude common good land. I accept what Monica Lennon is trying to say, which is that it is about not necessarily having to purchase the land. However, it is not clear from the drafting what “seize” means in that context. I am also not sure why Aberdeen, Dundee, Edinburgh and Glasgow councils are excluded from the provision. That is why I ask the committee to oppose amendment 514.

Again, the only reason why I ask the committee not to agree to amendment 486, which is from Tim Eagle, is that we are undertaking the community right to buy review. The amendment would mean that, once the bill has been passed, we would have to do another review in quick succession, which I do not think is necessary.

I am happy to follow that up with my colleagues and ensure that that happens. Given that the powers in question will be significant, the consultation will help to ensure that any such powers deliver what is needed and that they are appropriate and proportionate. The consultation will also be vital in building safeguards into the system, such as an appeals process and rights to compensation, both of which are not included in amendment 471.

Compulsory purchase powers can already be used to acquire land and property in a wide range of circumstances, including by bringing vacant and derelict land back into use for housing. Notwithstanding that, we are implementing a comprehensive programme of work to reform and modernise Scotland’s compulsory purchase system with a view to making it simpler, more streamlined and, ultimately, fairer. A substantial consultation on the changes that we propose to introduce through that work is proposed for the coming months, and I am happy to keep members updated on that.

Yes, that is right.

Taking all that into account, I ask Ben Macpherson not to move his amendments today.

Overall, I support the outcome that Ariane Burgess is trying to achieve through amendment 469, which Mark Ruskell spoke to. Ultimately, this is about increasing the provision of homes of the right type. However, I do not believe that amendment 469 is the most effective way of doing that. If we want to bring stakeholders together, we do not need primary legislation. Ariane Burgess has proposed something that we have already committed to through the rural and islands housing action plan, in which we set out our work with local authorities and other stakeholders.

Local authorities, national parks and the Scottish Government already have duties to support the provision of housing, and the establishment in legislation of a new forum probably has more potential to confuse than to strengthen the focus on addressing housing issues. There is no requirement for legislation in that regard. I am not able to support the amendment because the purpose and operation of the forum, how it would be resourced and the powers that it would have remain unclear.

I am still not sure what is behind amendments 473 and 505, in the name of Monica Lennon, but I have a number of concerns with those amendments. Amendment 473 seeks to establish a new register for various types of common land. The creation of new registers is a long, complex and expensive process, and it is likely that very few examples are left of the common land types that are listed in the amendment. The amendment would also require local authorities to seize land that is identified as common land. That has the potential to cause unintended consequences and would have a significant impact on the property rights of the current owners and rights holders. More broadly, this area was not raised during the stage 1 consideration of the bill or in the stage 1 report, and more detailed consideration and engagement with stakeholders, including local authorities, would be needed as part of any discussion.

With regard to amendment 474, the Division of Commonties Act 1695 allows an area of commonty to be divided between the owners in two circumstances: first, where holding that land as a commonty no longer suits the parties; and, secondly, to allow enclosure and cultivation of the land. We do not think that there is merit in removing that right from the owners of the commonties, which are not common land in the sense that that term is usually understood. We do not expect there to be many commonties left in Scotland, although there are some. Any decision to repeal that provision would need to be given appropriate consideration. Again, that has not been consulted on or more widely considered during the development of the bill. For those reasons, I ask the committee not to support amendment 474.

I believe that Roseanna Cunningham, who was the cabinet secretary, wrote to the Scottish Law Commission at that time, but I would have to follow that up to find out where that work ended up, because I do not have that information to hand at the moment.

I will address that as I continue with my comments. Ultimately, it comes down to my initial point that it is a voluntary choice by the landowner to sell their land. I appreciate your point, but it comes down to what we have to consider as part of a lotting decision anyway and to the guidance and the consultation that we will have to produce under Michael Matheson’s amendments. However, I hope that, as I continue, I will address your question.

Under the bill as drafted, we will be able to take account of those factors, where appropriate, as part of considering community sustainability in relation to a lotting decision, but that does not change the fact that the decision to sell is for the landowner or the fact that decisions on the employment of individuals are for subsequent landowners, too. It is ultimately those decisions, and not any requirement to sell land in lots, that would directly impact on current employees. I do not believe that such decisions are for the Scottish ministers. It would not be right for ministers to set out guidance or take liability as Douglas Lumsden proposes, and that is why I recommend that the committee opposes his amendments in the group.

I turn to Rhoda Grant’s amendments, which Mercedes Villalba spoke to. I absolutely agree with Rhoda Grant about the many benefits that crofting communities bring, but I am concerned that her amendments could give rise to significant interference in the use of land and in property rights that would go beyond the evidence base for the bill. It would not be proportionate to require a new owner to apply for land to be constituted as crofts.

I understand the aim of amendment 363, but it would require ministers to have regard to information on boundaries that is not available on any register, so it would not be practical. However, I am happy to engage and have further conversations with Mercedes Villalba or Rhoda Grant to see whether there is an alternative way to emphasise that ministers will consider impacts on crofters and common grazings when we make lotting decisions.

In relation to amendment 361, I suggest that further detail of the kind that is proposed is better considered as part of guidance. Again, I am happy to discuss that with Rhoda Grant. That is why I recommend that the committee opposes her amendments in the group.

I turn to Rachael Hamilton’s amendment 435. It was never the intention that a request to ministers to stop a lotting decision would count as taking action with a view to transferring land under pre-notification. There are also issues with the drafting of the amendment that mean that it would not have the effect that I believe that Rachael Hamilton is trying to achieve. If Douglas Lumsden is happy not to move the amendment today, I will be happy to have a further conversation with Rachael Hamilton to better understand the concerns and see whether there is merit in looking at an alternative ahead of stage 3.

First and foremost, all the points that have been raised today are hugely important. As I hope that I was able to articulate quite clearly at stage 1, we recognise that we are introducing new measures and that there will need to be a review, because we will want to see how they are being implemented and whether they are having the desired effect.

The amendments that have been lodged by Bob Doris, Martin Whitfield, Monica Lennon and Ariane Burgess all propose to have a review in one form or another, although they propose different periods and different roles for ministers and the Scottish Land Commission. I ask Bob Doris not to press amendment 182 and other members not to move their amendments but to work with me so that we can find a way through that is coherent and makes sense. If members agree to that approach, we can bring forward a cohesive plan for stage 3.

The only other amendments that I will touch on in this group are Martin Whitfield’s. His proposed repeal and sunset clauses are extreme and could lead to provisions that have been passed by the Parliament being repealed or to ministers being required to repeal provisions by regulations in what are quite loosely defined circumstances.

The bill already provides for compensation when appropriate, and it is unclear how ministers would be expected to fulfil the requirements that are set out in amendment 385, which would appear to require compensation to be paid in relation to any negative impacts on owners and tenants, regardless of any other benefits that the bill might bring.

I appreciate that further explanation, but it speaks to a wider point in our discussions today, which is that I do not think that the bill is the appropriate vehicle for driving such issues forward.

With regard to the other amendments in this group, amendments 481 to 483 relate to the entry of land on the valuation roll. Ultimately, those amendments would place significant burdens on councils or property owners and, from what we can see, would have limited policy benefit, as it is unclear what problems they are seeking to address. Assessors are already required by statute to value all lands and heritages that are not exempt from rating. There would need to be greater consideration of the administrative impact of the changes and exemptions proposed in amendment 483 and of the potential subsidy control implications of any relief that might subsequently be offered. Ultimately, the amendments, as they stand, risk increasing the costs for agricultural businesses in Scotland, which would put them at a disadvantage compared with other parts of the United Kingdom.

Amendment 484 does not specify what proportion of a landholding would have to be vacant for the council to be able to levy the higher rate on it. Therefore, the amendment creates a risk of avoidance, as it incentivises the owners of a vacant or part-vacant property to artificially occupy the property or, potentially, to stretch their occupation of a part-occupied property—for example, by using it for storage—when they would not otherwise do so, in order to avoid paying higher rates.

I will address the amendments that have been lodged in relation to the register of controlled interests. The regulations are quite complex, so if we were to change them that would need to be thought through in detail. We would need to have a wider discussion with relevant stakeholders about any changes, otherwise we would risk there being unintended consequences.

It is also important to point out that most issues relating to RCI can be dealt with through the regulations as they stand, rather than there being a need to address them through primary legislation. For example, we can properly address issues relating to penalties through regulations that are subject to the affirmative procedure.

Mark Ruskell also seeks to remove the option of applying criminal penalties for breaches of the RCI requirements. I have some concern about that. I would like to think that the risk of getting a criminal record would be a significant deterrent for those with responsibilities under the register, particularly because having such a record would bar individuals from holding certain directorships and other roles that might be of interest to certain landowners. The police have a key role in that, because their powers allow them to obtain information that is important in determining whether the requirements on compliance have been breached.

Mercedes Villalba spoke to Rhoda Grant’s amendments on security declarations. I was interested to hear more about the rationale behind those. It is important to note that, so far, there is only one security declaration in place out of about 17,000 published entries on the register. I do not believe, therefore, that there is a particular problem with security declarations. If there is, I will be more than happy to have that conversation. However, until we are sure that there is a problem that should be addressed, I do not agree that it would be appropriate to give more duties to Registers of Scotland and Police Scotland in the way that the amendments suggest.

I am more than happy to have further discussions with Mark Ruskell and Rhoda Grant to understand more about the rationale behind their amendments, but in the meantime I encourage the committee not to support them.

On amendment 470, I support the overall outcome of what Ariane Burgess is aiming to achieve, which is the delivery of a comprehensive single source for a range of land and property data. However, I have real concerns about the amendment, first and foremost because it would have significant cost implications. It could cost many millions of pounds to develop and maintain a new register, as well as to gather nationwide data of the sort to which the amendment refers. In addition, ScotLIS, which we have discussed a lot today and which is maintained by Registers of Scotland, already hosts an extensive range of information in an accessible map-based format. Registers of Scotland aims to continue to improve that service.

I am not clear whether amendment 475, in the name of Monica Lennon, relates to ScotLIS. I presume that it does, but the way in which the amendment is drafted means that it could be read as though it proposes a new land information service. I do not think that that is necessarily the member’s intention.