Seòmar agus comataidhean

I may struggle, Presiding Officer, but I will do my best.

I am pleased to close the debate on behalf of the Net Zero, Energy and Transport Committee. I thank members of both committees and the other speakers for their contributions.

As we have heard, the Aarhus convention is an important international agreement to protect environmental rights, and a key pillar of the convention is access to justice in environmental matters. Let us be honest that, as we have heard, Scotland has been found to be lacking in that respect. We are just not compliant with the convention, as access to environmental justice in Scotland is prohibitively expensive.

I am aware of the availability of legal aid in the area. The Scottish Government has committed to reviewing that, and the Equalities, Human Rights and Civil Justice Committee has been considering the matter. However, to address our non-compliance with the Aarhus convention, a more fundamental suggestion that has been raised with my committee is to create an environmental court. Many members have spoken about the potential benefits of such a court. Stakeholders have suggested that it could result in greater efficiency, quicker decision making and, ultimately, lower costs. It is considered that there is something of a gap in expertise in environmental cases, which can be very complex. A specialist court might reduce the time that is needed to establish and understand the facts in a case and thus, in turn, reduce the cost.

At the moment, the only route for an environmental case is a judicial review in the Court of Session. Let us be clear that that is complex and, indeed, very costly. We have heard concerns that a judicial review does not adequately allow the merits of an action to be assessed—only the process that was followed in reaching a decision. Thus, the creation of an environmental court was raised with the Net Zero, Energy and Transport Committee when we looked at the Scottish Government’s review of environmental governance arrangements.

The Government’s review accepted that there was a need for improvement to access to justice, but stakeholders were highly critical that it did not sufficiently engage with the question of creating an environmental court. A separate briefing paper on the topic was later produced, but it did little, as far as I can see, to alleviate stakeholders’ concerns. Having been described by Dr Richard Dixon, the chair of Environmental Standards Scotland, as “shoddy”, stakeholders thought overall that the Government’s review was a missed opportunity to look at the new environmental governance arrangements in Scotland that had been established post-Brexit.

The Scottish Government’s review highlighted its proposed human rights bill as a fix for the lack of access to justice. We were told that that would include recognition of a human right to a healthy environment. We were also told that that would be underpinned by international frameworks such as the Aarhus convention. We were told that it could strengthen routes to seek redress, and could potentially develop both judicial and non-judicial routes. Where is that bill? That commitment has, sadly, fallen by the wayside, leaving stakeholders frustrated at the continued lack of action to strengthen those rights.

There is now continued non-compliance with the Aarhus convention, without any clear plan to correct that. The Scottish Government has suggested that Environmental Standards Scotland is the answer to those problems. In the Government’s statement following its review, it asked ESS to consider the role that it might play in investigating individual cases.

Dr Richard Dixon, when he recently gave evidence to the committee, described the Government passing a “poisoned chalice” to ESS, as it gives the impression that ESS is going to fix the problem of the lack of access to justice. The Scottish Government is trying to pass to ESS the challenge, and therefore people’s expectations, which Dr Dixon said was unsatisfactory.

Although ESS fills an important role in environmental governance in Scotland, its functions are limited to what this Parliament authorised when we passed the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. ESS cannot give itself powers that the Parliament did not grant. We did not give ESS the power to investigate individual cases. Indeed, that was not an oversight, because amendments were debated at stages 2 and 3 that would have given ESS those broader powers, but the Parliament did not agree to those amendments.

The issues in this area go beyond what ESS has power to address; those are issues for the Scottish Government. It must be for the Scottish Government to reflect on our continued non-compliance with Aarhus. It is the Scottish Government that must act to ensure that environmental rights are meaningfully protected in a way that provides a clear and accessible route to justice.

In closing, I urge ministers to reflect on the issues that have been raised in this important debate and to establish a route forward to ensure that everyone in this country with a legitimate case to raise has access to environmental justice. We have heard a lot about such people in the debate, including groups relating to the development of pylon lines and groups in urban areas. I believe that the Government has a lot of work to do on the issue, and I urge it to take time to consider what has been heard in the debate.

I thank Liz Smith for bringing this members’ business debate to the chamber today.

I am slightly nervous standing here, because my ex-brigade commander, Brigadier Garry Barnett, is sitting up in the public gallery. I would just like to say to him that I have spent time in the Parliament trying to convince everyone that I was a good soldier. Brigadier, your memories of all the good things that happened in your brigade were, of course, down to me—I do not know who was responsible for the bad things. It is delightful to see you all here today and to look back on the Black Watch.

It is probably quite odd for a Household Cavalry man and for somebody who represents the Highlands to be standing here paying tribute to the Black Watch. We are now joined as one, but maybe there is a certain amount of rivalry, as there was before. There is no doubt that, as an ex-soldier, I have a huge amount of respect for all the work that the Black Watch has done during our long history, including our recent history, especially in Korea, Kenya, Northern Ireland, Afghanistan and Iraq. Huge areas of our history have relied on the Black Watch.

I would like to talk about one particular member of the Black Watch who I find quite interesting. I am sure that I am going to get this story wrong, but I did as much research as I could on William Speakman-Pitt, who served in Korea in 1951. He was a Victoria cross winner and, I think, a worthy one. Let us look at his history.

On 4 November 1951, when things were particularly difficult, he filled his pockets with grenades and charged the Chinese, hurling his grenades until they ran out. He then ran back to his lines, collected more grenades and some of his colleagues, and charged back to the Chinese lines, throwing more hand grenades to break up their charge. Sadly, that did not work, so they had to resort to throwing anything they had, which appeared to be mess tins, cans and a large amount of beer bottles. I am reliably informed by the record that those beer bottles came to be in the Black Watch lines purely to be filled with water so that they could cool the machine guns—how they were emptied was not actually clear in the dispatches. William was obviously a worthy VC winner.

I have seen other acts of bravery in the Black Watch history, and that is one that I like. I have heard that William was represented as beer-bottle Bill, the VC winner. I do not know whether that is right, but I am sure that the brigadier will correct me afterwards. He was a worthy winner. People like him typify the valiant soldiers who have served in the Black Watch. When I was a soldier in the British Army, which I was for 12 years, I would have liked to have had the Black Watch at my side, but not always to have had a brigade commander from the Black Watch in charge of me.

I think that I am short of time, but I would like to give way.

Has the member thought of a way of resolving that? If the landholding is not contiguous, should its inclusion be based on a commonality of machinery, management and staff that makes it contiguous as far as land management plans are concerned? If one landholding is in Orkney and one is in Lewis, they should not be seen as being contiguous.

Will the cabinet secretary take an intervention?

It seems as though there is going to be a long list of amendments to the bill. How is the cabinet secretary going to ensure that the committee has enough time in which to consider those before we go into what is bound to be a fairly lengthy amendment period?

Will the member give way?

Liam McArthur makes an interesting point about reducing the size of the threshold for land management plans. The costs are interesting, too. Does he agree that, once you get to small-scale farms of 1,000 hectares or less, funding £10,000 for a management plan every five years is prohibitive?

I will if I have time, Presiding Officer.

That is not entirely true. Some of the people who opposed part 1 were people who manage land holdings across Scotland, whether in the private or public sector.

Whether stakeholders were supportive of further land reform or not, there was consensus that the bill as drafted risks not delivering on its aims. There was a clear fear that the proposed changes would be burdensome and bureaucratic without delivering any real benefit.

On the detail of the bill, the committee is supportive of the provision to allow Scottish ministers to create community engagement obligations. However, only a majority of the committee think that the land size threshold for community engagement obligations—which is 3,000 hectares for mainland estates—is too high. The committee is not agreed on the appropriate thresholds for landholdings to allow the bill’s obligations to kick in. However, we agree that, when they are adopted, those thresholds must be kept under review by the Government.

One community engagement obligation that is set out in the bill is for large estates to produce land management plans. The committee is supportive of such plans, as they could create an accessible one-stop shop for information about large parcels of land, which would improve transparency about estate ownership and use. That provision in part 1 gained clear support, but we heard pleas not to allow it to become a box-ticking exercise with a long list of things to say in those plans, which could remove the local and distinct tailored elements that are required to make the plans truly useful documents.

We also heard concerns about the potential cost to estates of producing plans. However, it is difficult to assess those concerns fully when the details of the obligations for what will be set out in the plans will not be set out until later, in regulations. The committee was not in a position to assess the unknown. That is why our report recommends that there should be additional parliamentary scrutiny of regulations that set out community obligations.

The committee supports the principle of extending communities’ right to buy land. However, the changes in section 2 are unlikely to accomplish much on their own. A wider review of the community right to buy is under way, and we are disappointed that it was not completed before the bill was introduced. It would have been much more useful to consider the matter in the round.

We support giving Scottish ministers the ability to determine that large landholdings should be sold in lots. However, the basis on which such decisions would be made is unclear. We recommend that the transfer test in the bill be reconsidered to make it clear that the public interest will at least be at the heart of lotting decisions. We also recommend that guidance be produced to provide more clarity about the circumstances in which Scottish ministers would or would not expect to make lotting decisions. We are broadly supportive of the new role of land and communities commissioner.

Turning to part 2 of the bill, I note that the most significant changes in that part relate to agricultural tenancies. The starting point for those changes is a consensus that the tenanted sector is in long-term decline and that things need to change. Taken together, the changes in the bill could be said to rebalance the landlord and tenant relationship by giving more rights to tenant farmers. However, some stakeholders thought that those changes would make owners even more loth to offer tenancies in the first place. We are deeply concerned about the risk of a further decrease in agricultural tenancies, so we have recommended broader consideration of how to actively encourage the leasing of land for agriculture.

Although we support most of the individual provisions in part 2, we recommend that the Scottish Government considers how best to proceed with the provisions on resumption. Resumption is when the landlord takes back part of the tenancy. The methodology for compensating that, as proposed in the bill, has faced significant criticism. The view is that it perhaps rebalances compensation too far in favour of the tenant.

We need to clarify the meaning of “sustainable and regenerative agriculture”. That is a central feature of many of the changes in part 2, but it is as yet undefined. This is a familiar discussion for those who have been involved with the Agriculture and Rural Communities (Scotland) Act 2024. That act requires a code of practice to be created, which would provide meaning to the term.