Official Report 736KB pdf
The next item of business is stage 3 proceedings on the Land Reform (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2—that is, SP bill 44A—the marshalled list and the groupings of amendments. The division bell will sound and proceedings will be suspended for around five minutes for the first division at stage 3. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button or enter “RTS” in the chat function as soon as possible after I call the group.
Members should now refer to the marshalled list of amendments.
Section 4—Lotting of large land holding
Group 10 is on lotting decisions. Amendment 175, in the name of the cabinet secretary, is grouped with amendments 59, 60, 185, 290, 61, 291, 62, 186, 63, 64, 292, 392, 65, 293, 294, 187 to 190, 66, 191, 67 to 70, 192, 71, 72, 193, 73, 74, 295 to 297, 14, 298 to 303, 2, 77, 306 and 3.
I will speak to the amendments in my name before turning to the other amendments in the group.
Amendment 175 will require a declaration to be included in the deeds of transfer for land where the lotting provisions apply to confirm that the transfer is not in breach of any lotting prohibition. That responds to feedback from Registers of Scotland, which highlighted that the change would increase transparency and better enable the keeper to perform their land registration functions.
Amendment 191 will remove the requirement for expert advice to be sought for every lotting decision following a review, replacing that with a duty on ministers to consider whether it is appropriate to seek that advice. The change will enable more simple review decisions—for example, a minor boundary change that is requested by a landowner could take place more rapidly—to minimise delay to sales, while still ensuring that advice is sought for more complex decisions.
I oppose Edward Mountain’s amendments 185, 67, 68 and 69, because they would have the opposite effect, making it more difficult to obtain expert advice and delaying decisions.
My final amendment in the group, amendment 188, is a minor drafting correction to clarify that ministers should publish the latest version of guidance on lotting decisions
“as soon as is practicable after issuing it.”
I recommend that members support all my amendments in the group.
Let me turn to other amendments in the group. Amendment 65, in the name of Rhoda Grant, will clarify that ministers will take into account land that is being occupied as a croft, agricultural tenancy or small landholding when making a lotting decision. I am happy to support the amendment, as well as amendment 187, which will require ministers to have regard to the public interest in preparing guidance on lotting decisions.
Michael Matheson’s and Ariane Burgess’s amendments in the group focus on the provision of information relating to lotting decisions, particularly to community bodies. I am happy to support Michael Matheson’s amendments 298, 300, 301 and 303.
I have concerns that Ariane Burgess’s amendments would require ministers and the land and communities commissioner to share reports with any community body that they considered might have an interest in purchase. The pre-notification measures in the bill will already allow community bodies to be informed at the outset of the process, and they will also allow community bodies to apply to purchase only part of the land. Ministers will then be able to take that into account when considering the lotting decision.
Michael Matheson’s amendment 303 will ensure that information about lotting decisions will be provided to people who have provided details and wish to be informed of the proposals for sale under the pre-notification provisions. That is a more proportionate and workable approach. For those reasons, although I have sympathy with her intention, I encourage Ariane Burgess not to move amendments 293, 294, 299, 302 and 392.
I now turn to the amendments on timescales. I am happy to support Tim Eagle’s amendment 14, on appeal timescales, and his amendments 189, 190 and 192, which will impose timescales within which ministers must complete a review of a lotting decision and, if necessary, make a replacement lotting decision. At a review decision, ministers will have access to the information that supported the initial decision, meaning that a timescale of three months is reasonable.
However, I oppose Edward Mountain’s amendments 63 and 64, which would apply the three-month timescale to an initial lotting decision and remove the related provision in proposed new section 67N(7) of the Land Reform (Scotland) Act 2003. It is important that the timescales allow for more complex cases where engagement with the landowner and local communities and the provision of expert advice from a land agent will be required.
Tim Eagle’s amendment 290 would not have any effect, because the test for lotting decisions that is set out in the bill will already allow ministers to consider wider public interest decisions without that text being added. Similarly, his amendment 296 appears to clarify that compensation may be payable when land is not lotted, but that is already covered under the first ground for compensation that is set out in the bill. I ask members to oppose those amendments as well as the rest of the amendments in the group from Tim Eagle, Edward Mountain and Douglas Lumsden. The majority of those amendments were voted on and rejected at stage 2 and, ultimately, they would undercut the policy aims of the bill.
I move amendment 175.
I have 20 amendments in the group, but I will try to be as brief as possible. My amendments would make the proposed lotting process fairer and more sensible for all parties. They would enable the applicant to propose their own lotting plan, helping to tackle situations in which the landowner may be selling as a result of financial hardship, and to streamline decisions and help ministers.
Amendments 59 and 62 would enable the applicant to propose the lots within their application. They would oblige ministers to have regard to the lotting plan when they made the lotting decisions. Ministers would not be bound by the plan, so there is no real downside to agreeing to those amendments.
Amendments 66, 70, 73 and 74 would set out that the owner’s proposed lotting plan would be considered at different stages of the lotting decision process, appeal and any court consideration.
Amendment 60 would oblige ministers to rule that land need not be transferred in lots when the owner is facing financial hardship. I think that that is fair and equitable.
Amendment 185 would mean that lotting decisions concerning an owner who is facing financial hardship must be made with the help of a qualified specialist who has experience in the local area.
16:00Amendment 66 would insert a subsection enabling the applicant to propose lots during the review of a lotting decision, and amendment 70 would simply oblige ministers to consider that plan.
Amendment 63 would reduce the period that ministers have in which to make a lotting decision from six to three months, in a similar vein to Tim Eagle’s amendment 189, which I hope that the cabinet secretary will support.
Amendment 67 would ensure that the individual from whom ministers seek advice on the lotting decision is suitably qualified, rather than just appearing to the ministers to be suitably qualified. Amendment 68 would ensure that that person had knowledge of the land market in the local area. Those are both sensible amendments. In my experience, somebody could get a person in from one area of Scotland who had no idea of the different land market in another area of Scotland.
Amendment 186 would link the minister’s lotting decision to land management plans and local place plans, and it would require ministers to determine that land need not be transferred in lots where lotting is not identified in the land management plan or the local place plan, both of which will have been approved. That amendment would increase the value and meaningfulness of land management plans and local place plans, both of which were, I believe, supported earlier in the bill process.
Amendment 77 is a technical amendment relating to amendment 186.
Amendment 291 would insert the provision that lotting is considered to be not in the public interest if it reduces the ability to achieve net zero emissions. We cannot lot a place if doing so will prevent our reaching the net zero targets that the Government is committed to.
Amendments 71 and 72 would oblige ministers to offer to buy the land if the lotting decisions that they make result in the land becoming less commercially attractive. That seems fair to me. Amendment 193 would further clarify that ministers’ offers to buy land must be specified at an open market value as determined by the appointed valuer or the Lands Tribunal. Again, that is fair.
Amendment 64 would hold ministers to account regarding the time periods in the section.
I now turn to other amendments in the group. I do not believe that amendment 175, in the name of the cabinet secretary, is required.
On amendment 191, I find it strange that a minister who, at the time when decisions are going to be made on these matters, might have no experience of land sales or lotting would feel that they were in a position to make a decision without seeking expert advice. I cannot believe that the Government is considering removing the requirement to seek advice, as it would decrease the Government’s ability to stand up to legal challenge, which would therefore significantly increase costs.
Amendment 392, in the name of Ariane Burgess, is an administrative amendment that I do not believe is required.
Amendments 292 and 306, in the name of Douglas Lumsden, are sensible amendments because lotting will, without doubt, result in unemployment. Ministers should be held financially accountable if they demand that the land be lotted.
Amendments 189, 190 and 192, in the name of Tim Eagle, are eminently sensible as well. I will not go any further into them, because I think that I may have exceeded my time limit, Presiding Officer.
I call Douglas Lumsden—no, I do not. Apologies—I was taken aback by Mr Mountain’s kind comment. I call Tim Eagle to speak to amendment 290 and other amendments in the group.
I thank the cabinet secretary for her welcome clarification on amendment 290. In the light of those remarks, I will not move that amendment.
I also thank the cabinet secretary and her team for working with me on amendments 189, 190, 192 and 14. Those amendments relate to timescales for decisions following a review. They will require ministers to complete a review of a lotting decision and, if necessary, make a replacement lotting decision within three months of an application for review. Amendment 14 will increase the time that is available to a landowner to make an appeal against a ministerial decision on compensation from 21 to 28 days. I hope that the rest of the chamber can get behind those amendments today.
As currently drafted, the bill allows the landowner to seek compensation from ministers for loss or expense related to a lotting decision where that decision has stated that land may
“only be transferred in lots.”
My amendment 296 would make that condition clearer by stating that compensation may be claimed in relation to a lotting decision. In the period before a lotting decision is made, the owner might have suffered losses that they would not have had were it not for the delay caused by a lotting decision. The amendment would ensure that, if a lotting decision has caused a landowner loss or expense, they would be eligible for compensation.
Having said that, my amendments 2 and 3 seek to delete all the lotting provisions from the bill. Lotting prevents landowners from selling large landholdings in full and, instead, sees such landholdings sold in parts known as lots. Ministers appear to be trying to apply a solution to what they perceive as land inequality, to the detriment of the existing rural economy.
The bill makes what I have always maintained is a very dangerous assumption—that, if a landowner is operating at scale, they are creating problems. That is not the case. The realities of land management and farm production have forced people to scale holdings for their survival, and some of Scotland’s most extensive landholdings are, in some areas, also our most vulnerable. Lotting could see landowners deal with further administrative requirements and financial burdens. Transfers of land would also be delayed and, perhaps most concerning, the value of land might decline. That means that viable businesses would be fractured and confidence could decline, and there is a very real possibility that interest in investment could also reduce.
In recent days, following a letter from two very prominent thinkers on land reform, very real questions have been raised about whether this part of the bill is ultra vires or outwith the competence of Scottish ministers. If their assessment proves correct, we should all be very worried. To ensure the protection, stability and future of our rural economy, I propose removal of the lotting provisions from the bill to ensure that that perceived historical unfairness is not fixed by a damaging policy. I urge the cabinet secretary and members not to push forward with the lotting conditions.
In speaking to amendments 292 and 306, I echo the concerns raised by one of my constituents in north-east Scotland, with whom I know the cabinet secretary is familiar, because he is also her constituent.
Dee Ward manages land in Angus Glens, employing local people in delivering public goods such as food, energy, climate mitigation, nature restoration and housing. Dee wrote powerfully in The Times about the reality of the bill. There was no rhetoric in his words, just the real-world impact on the people, jobs and environment that depend on Scotland’s rural estates. He said:
“The Government says it cares about rural communities and wants to grow the rural economy. Yet at the same time, through this Bill, Ministers are preparing to fragment rural businesses that are doing exactly those things—creating employment, producing food, and providing homes for working families. There is an obvious inconsistency here. On one hand, the Scottish Government praises sustainable land management and environmental restoration. On the other, it’s putting forward measures that would force those very operations to be carved up and sold off in pieces—with no thought for the livelihoods, the projects, or the progress that would be lost.”
Dee Ward made the point clearly: integrated land use at scale allows estates such as his to fund vital environmental work, from flood management to biodiversity improvements. If we break that scale apart, we do not just risk economic loss; we risk environmental backsliding.
That is why I have lodged amendment 292, which is about fairness and accountability. If ministers decide to intervene and force a lotting decision, and if they decide that land may be transferred only in lots, they must also accept responsibility for the consequences of that decision. If people lose their jobs because ministers dictate how land must be sold, it is only right that the Government, not the businesses and workers who have no say in the matter, bears the cost of those redundancies.
Amendment 306 is consequential and would ensure that the legislative framework properly captures the new section in amendment 292. We should all want a Scotland where land delivers for people, nature and the economy, but that future will not come from punishing those who are already delivering or by imposing policies that make investment in rural Scotland a risk that is not worth taking.
My amendments do not undo the bill; they simply ensure that, if the Government takes powers to intervene in the marketplace, it also accepts responsibility for the human consequences of its decisions.
I urge colleagues to support amendments 292 and 306, to protect fairness.
Amendments 295 and 297 would provide some incentive for ministers to adhere to timescales when making lotting decisions, and I believe that they will add important safeguards to the bill.
At stage 2, the cabinet secretary responded to pressure by adding timescales for lotting decisions to new sections of the bill. However, she went on to negate much of the benefit of having timescales by adding that failing to adhere to them would not affect the validity of anything that is done by ministers under those sections. Although I can understand the argument that the lotting decision should remain valid in order to avoid even further delay, there should still be some consequence when ministers are slow to act, because further delay in the process is likely to cause loss and further detriment to the landowner and, potentially, to future buyers of land.
My amendment 295 would ensure that, when a lotting decision is appealed, the court may have regard to ministers’ delay. I am not attempting to bind the court, but it may have regard to any delay.
Amendment 297 would require ministers or, as the case may be, the Lands Tribunal for Scotland to have regard to any delay when determining whether compensation is payable. Land transactions will already be significantly slowed down due to the operation of this part of the bill. We have heard serious concerns raised not only by landowners but by the banking sector and professional agents about the impacts that section 4 might have on Scotland’s wider land market if the liquidity of land as an asset to secure borrowing is negatively affected. Without an incentive for ministers to act timeously, such impacts can only be exacerbated, which will have a knock-on impact on landowners and farmers’ ability to borrow funds to invest and create much-needed growth and rural employment.
I ask members to agree to those amendments, because they are a small but necessary check and balance of ministers’ powers.
In discussions with the cabinet secretary, I have expressed my doubts about the effectiveness of lotting as the provision is drafted. To improve it, I have lodged amendments 392, 293 and 294, which would enable the commissioner to share the lotting report with local communities who might wish to purchase lots and make a more informed decision. I thank Community Land Scotland for providing support on the amendments.
Access to the land and communities commissioner’s report will be vital in order for communities to decide whether they want to pursue a purchase of one of the lots. There is no reason why that report could not be shared with the local community by the land and communities commissioner or as defined by the prior notification process. The report would be shared with the landowner and Scottish ministers. If prior notification and lotting provisions are to function effectively and deliver greater transparency and community ownership, it is important that communities are given access to as much information as possible.
A case in point is the controversial sale of an estate in the Sleat peninsula in Skye by the Clan Donald Lands Trust. Clan Donald, the landowner, decided to lot the estate for commercial reasons, but neither it nor its agents gave the community access to the relevant information in a timely manner so that the community could make an informed decision about whether a purchase was possible. Ultimately, the community decided not to pursue a purchase, but it had not been given the proper opportunity to assess its options. In some ways, the bill could assist with that issue through the prior notification mechanism, but if communities are to make full use of lotting decisions, they also need to be informed about how and why any lotting decision has been made and the resulting impact on their potential ownership of the lotted land.
Overall, however, I am interested to hear from the cabinet secretary when she winds up about the evidence base for the Government’s particular approach to lotting, given that the entire burden is now placed on the seller and that the Scottish Land Commission’s proposal would have created a forward-looking process that ensured community sustainability over the long term.
Amendment 65 would require ministers to bring forward guidance on lotting decisions that includes information on how they will consider crofts, agricultural tenancies and smallholdings on the land. The amendment would ensure that crofting and tenanted agricultural land are explicitly considered when Scottish ministers decide whether and how to divide land into lots. I hope that the guidance would ensure that ministers did not approve land division in a way that might disrupt crofting communities, farms and on-going agricultural use, and would thereby avoid arbitrary divisions that could harm rural livelihoods.
16:15Amendment 187 seeks to impose a public interest test on lotting decisions. The lotting mechanisms within the transfer test are, potentially, a vital way of diversifying ownership and reducing concentration of ownership in a specific local area, and those mechanisms must be strengthened and enhanced at stage 3.
A crucial means of doing that will be to add further detail to the bill on what the guidance that underpins lotting decisions will contain and to make clear the centrality of the public interest test. That detail includes references to how the Scottish ministers must have regard to community wealth building, local housing provision and furthering community ownership, among other things. That would make it more transparent from the outset for landowners, communities, the land and communities commissioner and the Scottish ministers what types of considerations should underpin lotting decisions. I hope that it would also smooth decision making and mitigate any disagreement.
We are supportive of Ariane Burgess’s amendment 392, which seeks to allow the commissioner flexibility as to the bodies that might receive a copy of the report. As we know, bodies that would have an interest in land might vary depending on local circumstances.
Amendments 298, 300, 301 and 303, in my name, seek to provide greater transparency on the lotting process by ensuring that people who intend to set up a community body, are in the process of doing so or have recently done so are given early notice of a lotting decision. The amendments will achieve that by requiring the Scottish ministers to give information about lotting decisions to any person who has recorded an interest in being notified of possible transfers of land under the bill’s pre-notification provisions. That would be in addition to a copy of the lotting decision being provided to the owner or a creditor.
I believe that the amendments will provide greater transparency on lotting decisions and will allow information to be shared with communities that might be impacted by them.
I call the cabinet secretary to wind up.
I have a few brief comments. I will touch on Tim Eagle’s comments first. On amendment 296, I want to emphasise that the compensation that he is looking for is already covered by the provisions in proposed new section 67V(1) of the Land Reform (Scotland) Act 2003.
On some of Tim Eagle’s other comments and the amendments that seek to remove sections and provisions in the bill, I suggest that taking that approach would ignore the impact that the concentration of land ownership has on our communities across Scotland and, ultimately, it would ignore the recommendations and work of the Scottish Land Commission on which the provisions in the bill are based.
In response to the point that Ariane Burgess put to me, we covered some of that in the discussion on group 2, where I understand that there were provisions in various amendments that sought to impose a test on the buyer. Again, we set out the rationale for the approach that we had taken in the policy memorandum, because there are a whole host of complexities in relation to some of those tests, whether they are in relation to compensation provisions or in relation to the bigger interference with article 1, protocol 1 of the European convention on human rights. That is why we set out the test for lotting decisions and the transfer test in the way that we have in the bill.
I appreciate that there are wider concerns about how the provisions will work. They are new, but this is a very important step forward in our land reform journey. I hope that members can get behind my amendments.
The question is, that amendment 175 be agreed to. Are we agreed?
Members: No.
There will be a division.
As this is the first division of the stage 3 proceedings, I suspend the meeting for around five minutes to allow members to access the digital voting system.
16:19 Meeting suspended.
We move to the vote on amendment 175, in the name of the cabinet secretary. Members should cast their votes now.
I am aware that there might be an issue with the voting system, which we are looking into at the moment.
I suspend proceedings while we investigate.
16:27 Meeting suspended.
Further to the investigation, we hope that the voting system is now fully functioning. I imagine that we will shortly find out. We propose to re-run the vote on amendment 175. We will proceed with the division on amendment 175, and members should cast their vote now.
Apologies, members—we will suspend again. Thank you for your patience.
16:29 Meeting suspended.
Thank you, colleagues. I have a little update on the situation in which we find ourselves. I understand that there is a significant Microsoft outage affecting some products, and it is global. That is preventing us from voting.
The Parliamentary Bureau has just had a brief meeting and has agreed that the best option for now is to suspend. For those who wish to attend, the Poppyscotland event will be going ahead between 6 pm and 7 pm. The bureau will meet before 7 pm to ascertain the situation at that point, with a view to resuming business in the chamber at 7 pm. There will be an update at 7 pm, but for now we are suspended. Thank you for your understanding.
17:19 Meeting suspended.
Thank you, members. I will provide an update on the situation. The Parliamentary Bureau has considered all options in order to decide whether we can continue with stage 3 proceedings this evening. In doing so, we were very mindful of the fact that we are considering legislation, and we have concluded that we should not resume this evening for both technical and procedural reasons. I am postponing the rest of today’s business. The bureau will continue to meet, and further information will be provided as soon as possible.
Therefore, I postpone the rest of today’s business and I close this meeting.
Meeting closed at 19:10.Air ais
Urgent Question