Seòmar agus comataidhean

My amendments in this group all relate to game damage, and they follow a variety of discussions with groups that are involved in country sports and shooting. Section 20 outlines instances where the tenant is entitled to be compensated by the landlord where game or game management has caused the tenant to sustain certain damage, for example, damage to crops or livestock.

Amendments 290 and 291 seek to delete “or game management” from the proposed new section title in the Agricultural Holdings (Scotland) Act 1991 and from the reasons why tenants would be entitled to compensation. It is unclear to me why game management, rather than just game, such as deer, would contribute to damage in those circumstances. Moreover, any damage that is caused by persons and relates to game management would already be covered under common law, such as through breach of contract or delict.

Yes, certainly.

You have got me lost, convener, because I was sure that I wanted to answer the question about grass tracks.

I will move on to amendments 292 and 293. The bill as drafted states that the

“tenant is entitled to be compensated by the landlord where game or game management have caused the tenant to sustain ... damage”,

for example,

“damage to crops”.

My amendments 292 and 293 seek to ensure that that damage is damage that is directly caused. As I have set out in previous amendments, claims against landowners that are outwith direct causation potentially encompass a wide range of losses over which those landowners may have little or no control.

Amendment 294 seeks to remove “damage to fixed equipment” as a reason that would allow a tenant to be entitled to compensation if that damage was caused by game. Under the 1991 act, fixed equipment includes

“all permanent buildings ... all permanent fences ... all ditches, open drains ... farm access or service roads”

and so on. It is not possible for game to damage farm buildings, ditches, drains or service roads. Therefore, the definition needs to be narrowed to make it more appropriate for the possibility of damage caused by game.

Amendment 295 is a probing amendment on the utilisation of the broad and overreaching definition of “habitat”. The bill as drafted also includes “damage to habitats” as a reason why a tenant would be entitled to compensation if that damage is caused by game. Given the scale and complexity of habitats, it could be argued that increased biodiversity, such as more ground-nesting birds, that is caused by effective game and conservation management could cause game damage. For example, cover crops that are planted for game birds could encourage more other birds and mammals. Therefore, the amendment seeks to delete “damage to habitats” from the reasons for entitlement to compensation, and I look forward to the cabinet secretary’s explanation for its inclusion in the bill. Similarly, amendment 296 seeks to delete

“trees forming part of a shelterbelt”

from the definition of trees. That is to avoid the duplication of references to shelterbelts, which are included in the definition of fixed equipment.

Turning to other amendments in the group, I will not be able to support Emma Harper’s amendments 518 and 519, as I think that, rather than using a process of arbitration, the power to determine questions such as tenants’ entitlement to compensation should remain with the Scottish Land Court. However, I am keen to listen to Emma Harper’s reasoning.

I move amendment 290.

Amendment 223 relates to section 9 of the bill and deals with the extension of the tenant farming commissioner’s functions. I do not intend to press it—it is more of a probing amendment.

Section 9 largely modifies the Land Reform (Scotland) Act 2016, and the bill seeks to keep reference to the 1991 act and the Land Reform (Scotland) 2003 Act, and to add reference to section 30 of the Crofters Holdings (Scotland) Act 1886, which I am sure that you are all very familiar with.

For clarity, section 30 of the 1886 act allows for a sole arbiter to be chosen. It states that

“the landlord and the crofter may agree to accept the decision of a sole arbiter mutually chosen instead of the decision of the Crofters Commission, and in that case any order pronounced by such sole arbiter shall, when recorded in the ‘Crofters Holdings Book’ along with the agreement to accept his decision, be as effectual to all intents and purposes as an order of the Crofters Commission”.

My amendment would delete the modifications that the bill makes to subsection (9) and would, in effect, delete section 30 of the 1886 act. I raise the issue because I have heard concerns from stakeholders that including section 30 of the 1886 act could introduce an absolute right to buy. Therefore, I am looking for the cabinet secretary’s guidance in order to get clarity on the effect of this provision.

I simply reiterate the wider point that, while I am to some degree sympathetic to the requirement to tackle the climate and nature emergency, as some people put it, we are an island nation and we cannot make any more land. For me, and—I think—for many people in Scotland, food security is of the utmost importance, and I think that there are risks when we go down the line of starting to give away potentially large swathes of land for environmental reasons. Farmers across the nation are already doing incredible work that brings together food security and work on nature, biodiversity and climate change. That is what I am trying to get across with amendment 183.

Having said all that, however, I will not press amendment 183 or move amendment 487.

Amendment 183, by agreement, withdrawn.

Amendment 487 not moved.

Section 7 agreed to.

After section 7

I thank the cabinet secretary. The remarks that have been made already give some comfort on this matter, but I will try to explain where I was coming from with amendment 508A.

Proposed new paragraph 5E, which amendment 508 will insert into the schedule, allows the landholder to be compensated for game management damage to the landholding. Amendment 508A would clarify that that part of the schedule—and thus compensation—would apply only to direct damage.

Requiring the damage to be direct would make the law far more certain and improve its enforceability while minimising costs to all parties. As drafted, the provision creates a wide and slightly unclear definition. The current scope of compensation raises significant legal questions, particularly regarding causation and the evidentiary challenges that are associated with disease transmission. As a result, claims against landowners outwith direct causation could encompass a wide range of losses over which they may have little or no control. Therefore, amendment 508A seeks to ensure that a tenant can claim compensation only for direct damage.

My amendment 508B would further amend amendment 508 at subparagraph 5E(2), which states:

“The landholder is entitled to be compensated by the landlord where game or game management have caused the landholder to sustain”

damage

“(whether directly or indirectly)”.

Amendment 508B seeks to delete the phrase “(whether directly or indirectly)”. Together with amendment 508A, that would ensure that the tenant would be able to receive compensation only for damage directly sustained.

Amendment 216 seeks to strengthen the requirement on ministers to set out by regulations the basis on which the valuer is to assess the compensation payable. Currently, the bill says:

“The Scottish Ministers may by regulations modify this paragraph so as to specify the basis on which the valuer is to assess the compensation payable and the consideration to be given to certain matters by the valuer in doing so.”

The valuer is currently allowed to assess the amount of compensation to which the landlord or small landholder is entitled under that part of the schedule. Amendment 216 would change that requirement from “may” to “must”. That would mean that the Scottish ministers would have a duty to specify the basis on which the valuer is to specify the compensation payable.

Apologies, convener—what number did you say?

Amendment 219?

Sorry, yes—it is in front of me.

Amendments 219 and 220 not moved.

Amendment 221 moved—[Mairi Gougeon]—and agreed to.

Amendment 222 not moved.

Amendments 511, 498, 499, 512 and 500 moved—[Mairi Gougeon]—and agreed to.

Schedule, as amended, agreed to.

Section 9—Extension of Tenant Farming Commissioner’s functions