Seòmar agus comataidhean

I welcome the opportunity for further engagement on my amendment 503 and other amendments in the group. I want to clarify, if it is helpful, that I have reflected on the wording of my amendment 503. It is not my intention to require reporting on all landholdings; the provision should apply proportionately to larger landholdings and rural land. I appreciate that that is perhaps not clear in my amendment, but I am happy to work with the Government on that.

To clarify, amendment 475 relates to the existing service. Does the cabinet secretary accept that, as Mark Ruskell outlined, there are shortcomings in the existing service when we compare it with what John Swinney committed to in 2015? That is what we are trying to address and improve.

A variety of types of common land—remnants of a much larger extent of land, from before enclosure and privatisation—still exist across Scotland. Their legal status is unclear and precarious. Many such pieces of land have been divided and appropriated by neighbouring landowners, and communities have lacked the means by which to protect that land from such activities. For example, Carluke commonty was saved by Andy Wightman, who is known to members around the table and who worked with the local development trust to register title to it.

In England and Wales, the purpose of the Commons Registration Act 1965 is

“to provide for the registration of common land and of town or village greens; to amend the law as to prescriptive claims to rights of common; and for purposes connected therewith.”

Scotland needs an equivalent register, because we have fallen way behind England and Wales in that regard.

My amendment 473 provides for the creation of such a register and for regulation-making powers to require that any local authority may seize and manage such assets or transfer them to an appropriate body.

In the latter half of the 16th century, fully half of Scotland was held as part of some form of commons. Today, little of that remains, but what does remain deserves better protection. I hope that that explains the rationale behind amendment 473.

I will speak to my amendments 475 and 477. Mark Ruskell, on behalf of Ariane Burgess, has set out why we need to address the issue of ScotLIS. I will try not to repeat any of Mark Ruskell’s ably made points on that, but it is good to put on the record again that, in 2015, when he was Deputy First Minister, John Swinney, made a clear commitment to establish a land information system for Scotland and that such a system would provide

“a one-stop-digital database for land and information services”.

Mark Ruskell has outlined what has been implemented and some of the shortcomings around that. That implementation work is incomplete. I recently submitted a written question to the Government on the matter and got a response from the Minister for Public Finance, Ivan McKee. There is on-going work on ScotLIS, but I share Ariane Burgess’s frustration, which Mark Ruskell has articulated.

My amendment 475 is not as prescriptive as Ariane Burgess’s amendment 470, but the rationale is similar. I am keen to hear what the cabinet secretary has to say on it.

I turn to amendment 477. Under regulation 12, paragraph (2)(a) of the Land Register Rules etc (Scotland) Regulations 2014, the keeper of the registers of Scotland is required by law to enter on the title sheets in the land register the “consideration”. Typically, that will be the price paid for land, and that recording of considerations is the reason why we have good data on house prices in Scotland. A consideration can also be recorded as “for love, favour and affection”, for example, which is the accepted term for a gift to a relative—there are other terms that have been used for many decades and have accepted meanings. In recent years, however, an increasing number of large landholdings have changed ownership, with the considerations being given simply as “implementation of missives”.

During the years 2020 to 2022, almost one quarter of all land sold as part of large landholdings—defined as those of more than 500 hectares—entered “implementation of missives” as the consideration. However, in 2023, that jumped to 72 per cent of the extent of all large landholdings, which represents more than 40,000 hectares. Eight out of 12 sales of holdings of more than 1,000 hectares gave that term as the consideration.

Those of you who know the basis of conveyancing will be aware that missives are exchanged as part of the conveyancing process, and they will be implemented unless the sale falls through. Therefore, “implementation of missives” is a meaningless term. As a matter of law, the keeper is a registrar and not an arbiter or enforcer; she faithfully records the consideration as given in the disposition. Given that the term is arguably being used to conceal the sum of money paid, amendment 477 requires the keeper to enter the actual sum of money that changes hands.

I am grateful to the cabinet secretary for the comments that she made a few seconds ago. The purpose of amendment 432 is to remove the conflict of interest that appears evident when Scottish ministers exercise powers under section 4 of the bill in relation to large landholdings that they own and are proposing to sell, or large landholdings that they are seeking to acquire. The amendment achieves that by removing land that is owned by Scottish ministers from the scope of the bill’s powers in section 4. That might not be the only way to achieve that, but it appears to be the simplest.

I listened to an interaction between Rachael Hamilton and the cabinet secretary at stage 1, and I heard the minister explain that she does not agree that such a conflict of interest exists. I will make two observations in response to that. First, it appears self-evident that, if a person or organisation is simultaneously seeking to sell or acquire land and also has a statutory power to intervene in that process, it is a classic example of a conflict of interest.

Secondly, section 6 disqualifies from appointment to the role of land and communities commissioner any person who either owns a large landholding or has owned one within the year prior to appointment. The committee recommended in our stage 1 report that that disqualification be dropped, but the Government took a different view. If the very small risk of a conflict arising from the land and communities commissioner owning, or having owned in the previous year, a large landholding is considered sufficient to justify the disqualification, perhaps the cabinet secretary can explain why ministers can make decisions under sections 2 and 4 of the bill when they own the land or are seeking to acquire the land that is subject to those powers. We need to clear that up.

I emphasise that the benefits to communities that are provided by the bill can still be achieved in relation to land that is owned by Scottish ministers, even though they are excluded from its scope, since asset transfer provisions will still apply and Scottish ministers are free to make their own decisions about lotting, for example.

I agree.

Yes. How would the Government know who had produced a plan and who had not?

I am really interested in the points that Tim Eagle is making. He said a moment ago that perhaps the Government should have targeted those who do not produce land management plans.

No—sorry, I mean yes.

I will come in now, convener. I am not surprised that people want to contribute to this part of our scrutiny, because the land management plans are an important part of the bill and we took a lot of evidence on them at stage 1.

I take issue with the way in which Tim Eagle has framed the issue. On the one hand, we are hearing about the benefits of land management plans and the fact that many landowners, especially larger landowners, already make them, but we are also hearing that it is burdensome and could be very expensive. We did not really get evidence at stage 1 that backed up the suggested higher costs of £15,000. There is a contradiction in Tim Eagle’s arguments that, on the one hand, land management plans are good and lots of people do them but, on the other hand, we do not want them to be in the legislation.

I agree that we have to take care that land management plans do not become overly prescriptive. I do not think that that is the Scottish Government’s intention, but I will leave that to the cabinet secretary. However, does the convener agree that the benefits of land management plans have been well argued in our scrutiny? This is about improving accountability and transparency and, as Mark Ruskell says, engaging with communities, which can add value to the process for everyone.