Seòmar agus comataidhean

As I have said in previous evidence sessions with both the Delegated Powers and Law Reform Committee and this committee, it is important for the Scottish Parliament to have the appropriate scrutiny powers for each regulation that stems from the bill. I have carefully considered the committee’s recommendations and have lodged a number of amendments in response to many of those.

Some of the recommendations were to include in the bill statutory duties to consult. As I have set out in various responses, I would already expect the Government to undertake the appropriate consultation, but I am happy to add statutory duties to consult across a number of powers in the bill. Amendments 15, 108, 132, 162, 165 and 170 do that.

Amendments 12 and 13 will make a technical change to the power in the proposed new section 44A of the 2016 act, requiring ministers to consult such persons as they consider appropriate before “laying”, rather than “making”, regulations.

Amendment 175 would insert section 67V(4) into the Land Reform (Scotland) Act 2003, which would provide a power to the Scottish ministers to make further provision for compensation through regulations, including how claims for compensation are to be made and how the amount payable is to be determined. The power is currently subject to the negative procedure, but the Delegated Powers and Law Reform Committee recommended that use of the affirmative procedure would be more appropriate. Although I considered that use of the negative procedure in this instance would make the regulation-making power equivalent to similar powers in previous land reform legislation, I am happy to accept that recommendation, and amendment 175 will ensure that the power is instead subject to the affirmative procedure. Under amendment 165, there will be a statutory duty to consult on any such regulations.

I hope that I can go some way towards meeting Tim Eagle’s intentions and what he is trying to achieve with his amendments in the group. His amendment 417 would create a pre-laying procedure for regulations to modify chapter 2 that are made under proposed new section 44M of the Land Reform (Scotland) Act 2016. I appreciate that a pre-laying procedure was recommended by both this committee and the Delegated Powers and Law Reform Committee. Again, I want to ensure that Parliament has the appropriate scrutiny powers, but the Parliament will have to agree to any such regulations that are made as they are already subject to the affirmative procedure, and there will be a statutory duty to consult. The bill already specifies the land in relation to which those obligations may be imposed by regulations—that is in proposed new section 44A of the 2016 act and in the list of persons in proposed new section 44E(2). Any regulations that are made in future would really be to modify what is already there rather than to introduce new powers. It is more common to see a pre-laying procedure for the latter. That is why I recommend that the committee opposes amendment 417.

Amendment 458 would attach a similar procedure to the power in proposed new section 67V(4) of the Land Reform (Scotland) Act 2003 to make further provision about compensation. The DPLR Committee recommended that that power be subject to the affirmative procedure, and my amendment 175 will ensure that it is. The DPLR Committee also recommended a statutory requirement to consult, which my amendment 165 will introduce. It did not recommend a pre-laying procedure, which is why I ask the committee not to support amendment 458.

Amendment 161 is similar to my amendment 162. It would add a statutory duty to consult in relation to the power in proposed new section 67S of the 2003 act, but it includes a requirement to prepare and publish a report on the consultation. It is standard practice to publish the details of any consultation, so that seems unnecessary. In addition, the amendment suffers from a drafting flaw, because the requirement for regulations that are subject to the affirmative procedure should be that there is consultation before they are laid rather than before they are made. I therefore ask the committee not to support amendment 161.

Amendment 165A would amend my amendment 165, which creates a statutory duty to consult in relation to the power in proposed new section 67V of the 2003 act, in order to require ministers specifically to consult a person who is an accredited valuer of land. Given that that section concerns compensation, the seeking of advice from accredited persons or appropriate bodies would be an expected part of the development of regulations, so I do not think that amendment 165A is necessary. It would also be unusual to require an individual to be consulted, rather than a category of persons or a professional body. Those are the reasons why I ask the committee not to support amendment 165A.

However, I am keen to work with Tim Eagle on the remainder of his amendments in the group—amendments 217, 219 and 220. Like others, they would expressly require Scottish ministers to consult people that they considered appropriate before making regulations under certain paragraphs of the schedule. I am open to including in the bill a requirement to consult in relation to those powers in order to reflect the intention of those amendments. If Tim Eagle is happy not to press them, I will be content to work with him on them ahead of stage 3.

I move amendment 12.

If you are talking about aggregate holdings—holdings across Scotland that potentially fall under the thresholds—they would not be caught by the measures. Essentially, we need to make sure that we have the evidence base for that and that we address the impact of the concentration of land ownership. The amendments that I am bringing forward do not cover aggregate holdings, because those would be across Scotland.

I appreciate that there are many amendments in the group. I will try to get through them as best I can and will speak to the amendments in my name before turning to some of the others.

This debate is important because it goes to the heart of what I think is a fundamental policy decision in the bill. It is one that we gave a great deal of consideration to prior to the introduction of the bill, because we want to ensure that the proposals can be applied as widely as possible.

In the bill as introduced, community engagement obligations were to apply to owners of large landholdings of more than 3,000 hectares so that there would not be a disproportionate impact on small businesses, such as many farms. I did not want to disadvantage those businesses relative to larger landholdings that would have more staff and more capacity.

These are new proposals and I have a responsibility, in my role as cabinet secretary, to ensure that they are proportionate and justifiable. At stage 1, the committee said that it saw some merit in aligning the size of thresholds across the bill in order to create policy cohesion and, importantly, to give clarity to stakeholders. I said in my response to those recommendations that I also saw some merit in that, both because of the simplicity and because it would allow all the proposals to work together.

Amendment 38 would therefore lower the threshold relating to land on which community obligations might be imposed from 3,000 to 1,000 hectares. That would align the thresholds across land management plans, pre-notification and transfer test provisions and would, in essence, cover about 55 per cent of Scotland’s land.

As members know, the bill already gives the Government flexibility to seek to alter the thresholds, based on experience. We should not forget that these are new and ambitious provisions and it is right that the Government should review their operation to ensure that they are having the intended effect.

Amendments 34, 36, 40 and 50 are largely consequential to amendment 38. Amendment 40 would remove the separate category of landholdings exceeding 1,000 hectares on inhabited islands, given that the threshold for all landholdings would be lowered to 1,000 hectares.

I turn to amendment 49. The bill as introduced requires that land that is owned by the same person, or by connected persons, must share a boundary in order to be considered as a holding that counts towards the thresholds. During stage 1, the Scottish Land Commission noted that there might be a number of titles where public infrastructure, including railways and roads, will sever large landholdings, dividing them into smaller areas, and that those individual landholdings might then fall below the threshold that we had set out. The SLC recommended that any land that is split by a railway or other public infrastructure should be treated as a single holding and the committee also recommended that approach in its report, noting that there could otherwise be a loophole. I share the committee’s view and consider disregarding any such splitting of landholdings to be proportionate and justifiable for the purpose of defining the threshold.

The amendment does not focus directly on public infrastructure because there could be factors other than train tracks and public roads, including private roads held by other landowners, to which similar considerations would apply. Following consideration of the width of railways and road infrastructure, amendment 49 allows for non-contiguous areas of land to form a holding, provided that they are within 250m of each other. That allows us to address a known issue, while still being in line with the evidence base that we have that concentration of ownership can impact local communities.

Again, I would have to fully understand that and see what the implications might be, but I am more than happy to have that conversation with the convener between stages 2 and 3. I still ask that members support my amendments in the meantime.

The final amendments in the group—amendments 45, 46 and 48—concern how composite holdings are defined in the bill. They are technical amendments that strengthen the definition of a composite holding and ensure that multiple holdings that are owned by connected persons form together to comprise composite holdings in the same way in which holdings that are owned by the same person form a single holding.

Those amendments will also support the introduction of non-contiguous holdings, which I have just spoken about, in relation to amendment 49. I therefore recommend that the committee supports the amendments in my name.

As far as I am aware, there is no legal definition of what that would mean. We would be inserting a legal definition of something, which would have wide-reaching ramifications beyond what we have set out in the bill. I am about to come on to a few other points and issues in relation to that.

A wider point has been raised about measures that are being taken in the urban environment. It is important to remember that the bill was intended to deal with a specific problem that was identified by the Scottish Land Commission, which was about the issue of the concentration of land ownership, particularly in rural Scotland. However, that is not to say that no other work is going on to address some of those issues in the urban environment. Monica Lennon raised that matter with me during stage 1 consideration of the bill.

I am about to come on to the community right-to-buy powers and the on-going review of them. Significant work has also been taking place in relation to compulsory purchase orders and compulsory sales orders. All those different mechanisms will help to deal with some of the issues in the urban environment. I do not think that we can address those issues in the bill—in this legislative vehicle—alone.

Different stakeholders have voiced support for the concept of sites of community significance, but they have done so in different ways. Some have sought to expand the scope of the bill; others have sought to limit it and to require communities to undertake more work before the provisions in the bill could apply.

The process of assigning sites as being of community significance would be complex, and the enforcement and monitoring of any registration could have significant costs for the Scottish Government, which would have to establish a way to register the sites, and for local authorities, which might be required to be involved, too. There has not been any impact assessment to consider how many more sites could be brought into scope and what the costs of that could be for landowners and the public sector.

The benefits of including sites of community significance are unclear, and how the lotting provisions and transfer test would be applied to such sites is also unclear. There is an existing process through which urban and rural communities can register a community interest in land through the community right-to-buy processes in part 2 of the Land Reform (Scotland) Act 2003. An additional process could add significant cost and complexity for both the landholder and the public purse, with unclear and limited benefit.

In rural areas, there is a need to add an existing route to the community right-to-buy process, which is why we have introduced the notification measures in the bill, but we do not believe that that would be proportionate when there are no issues of concentrated ownership. In fact, if we were to expand the provisions of the bill to apply beyond the target area of large landholdings, that could risk taking the bill away from the evidence base on which we made the proposals.

There would also be issues with legislating in that space before we have been able to consider the findings of the community right-to-buy review, which is still under way and is due to report by the end of this year. I appreciate the concerns that were raised by the committee in relation to that review. If legislative changes are required as a result of that review, we would be happy to propose the right legislative vehicle to address those.

Although I appreciate the approach that Michael Matheson has taken, I believe that it would take the measures in the bill away from what they were intended to do and beyond the issues that they were designed to address. I ask him not to press amendment 11 or move amendments 35, 42 and 106.

Through amendment 22, Bob Doris proposes that the Scottish ministers publish a statement when they are exempting any land that would otherwise be subject to future regulations that require landowners to have a land management plan. As Bob Doris has outlined, and as I said in the conversations that we have had, I would expect the Government to do that as a matter of course. I am always nervous about adding requirements to a bill that I do not believe are necessary, but I am happy to support amendment 22, although I might revisit it at stage 3 if any unintended consequences are found or drafting issues are identified.

Tim Eagle’s linked amendments 398, 399, 402, 403 and 406 seek to disapply the community engagement obligations in certain circumstances, including when land is used mainly for agricultural purposes or the owner has not engaged with a community body in the past five years. Rachael Hamilton’s amendments 400 and 404 similarly seek to disapply the obligations when the land is transferred to a new entrant to farming or agriculture business.

I am mindful that the obligations and thresholds should be designed to avoid disproportionate duties on small-scale landholdings or smaller farms. That is why I do not propose to lower the threshold below 1,000 hectares, at which level only the largest of farms—1.4 per cent of Scotland’s farms—are expected to be in scope. We will make all efforts to ensure that the community engagement obligations are as straightforward as possible and that they align with other plans and requirements where possible, to minimise duplication. However, I do not believe that it is right to disapply those obligations to as broad a class of land types and landowners as the amendments suggest. That is why I recommend that the amendments should not be supported.

Tim Eagle’s amendments 37, 41 and 44 would remove the bill’s definition of what constitutes a composite holding for the purposes of community engagement obligations and, instead, via amendment 405, leave those definitions to future guidance to be prepared and published by the Scottish Land Commission. I appreciate that there is often quite a lot of discussion in Parliament about what should be in a bill and what should be left to regulations and guidance. In this case, however, it is right that Parliament can consider what constitutes composite holdings in the bill. Those can, of course, be changed by any future regulations, so I ask members not to support the amendments.

Amendment 39 would raise the threshold for land on which community obligations may be imposed from 3,000 to 5,000 hectares. That would dramatically reduce the ambition of the bill, particularly when there has been such widespread support for land management plans and the community engagement obligations, as the committee will have seen when it took evidence on that.

Amendment 401 would increase the percentage of land that forms an island under the current islands criterion to 33 per cent from 25 per cent. As I have outlined, I propose lowering the threshold to 1,000 hectares, which would then remove the islands criterion. That is a sensible compromise and I therefore recommend that the amendments are opposed.

Tim Eagle’s remaining amendments in the group—104, 105 and 110—would remove ministerial powers to modify chapter 2 of the 2016 act by regulations and instead add more restricted powers to modify the chapter. Amendment 110 would stipulate that future regulations could not reduce the number of hectares in section 44D of the 2016 act in relation to the land on which obligations would be imposed.

Mercedes Villalba’s amendment 109 would do almost the complete opposite of what Tim Eagle is trying to do. It would restrict the power to modify chapter 2 of the 2016 act by stipulating that future regulations could not increase the thresholds for land management plans and community engagement obligations.

Both approaches would substantially restrict Parliament’s future flexibility. Although I probably lean more towards supporting the intent behind Mercedes Villalba’s amendment than Tim Eagle’s—I know that it was worth a try—as a parliamentarian, I am mindful of constraining the actions of future Parliaments, which is why I do not support the amendments.

As I have outlined, we are probably not too far apart in our thinking, but these are new measures that we are introducing so, being responsible in our role, it is only right that we monitor their effectiveness and look at any potential impacts. I do not want to tie the hands of any future Parliaments in relation to that, which is why I propose not to support the amendment. I am happy to have further conversations with Mercedes Villalba after stage 2 as we look towards stage 3, but I am not minded to support amendment 109 at this stage.

Ariane Burgess’s amendments 3 and 4 would lower the threshold for land on which community obligations might be imposed to 500 hectares. For the reasons that I outlined earlier, I believe that that is too low. I want to ensure that the proposals are justified in relation to the policy aim of not having a disproportionate impact on smaller landholdings. The amendments would impose costs on a much more significant set of landowners. As I outlined in my response to Mercedes Villalba, the provisions in the bill are new and it is important that the Government can review and monitor how they are being implemented. We would have the ability to seek to adjust the thresholds in future if that is required. That is why I oppose the amendments.

I thank colleagues around the table for their engagement on the bill more widely, but particularly on the matters that we are discussing in this group in relation to the process for and implementation of land management plans.

I welcome amendment 20, lodged by Bob Doris, which looks to require specifically that regulations ensure that landowners engage with

“tenants, crofters and small landholders with rights associated with the land on the development of, and significant changes to,”

land management plans. That was always going to be the intention of the regulations, so I am happy with that amendment, which makes things more explicit.

Amendment 33 from Bob Doris and amendment 10 from Tim Eagle seek additional guidance on how landowners will comply with their land management plan obligations under the regulations. As it was always the intention for there to be additional guidance, I am happy for that to be made explicit in the bill.

For drafting reasons, however, I ask Bob Doris and Tim Eagle not to move their amendments, and I am happy to work with them ahead of stage 3 to produce amendments that meet the stated aims in both. Each takes a different view on how guidance must be produced, what it should cover and who should produce it; one suggests Scottish ministers, while the other suggests the new commissioner. I agree that the content of both the amendments should be covered in further regulations or in guidance, and I will consider how best that can be reflected in the bill and whether that responsibility should indeed lie with ministers or with the commissioner.

Amendments 21 and 315, on the proposed timescales for the review of land management plans, seek to increase the intervals of reporting. Ariane Burgess’s amendments in this group seek to introduce a new plan period of 20 years, with a review and a report every five years. I do, of course, understand the rationale for that, which is to encourage plans to set out activity for the next 20 years. However, the bill already requires plans to set out a long-term vision, and it is appropriate for guidance and regulations to set out more detail of what that means, including the timespan that the plan should cover.

In its stage 1 report, the Net Zero, Energy and Transport Committee noted that the five-year reporting cycle that we have set out seeks

“to strike a balance between ensuring plans remain current and not imposing unrealistic or unhelpful obligations on landowners.”

To me, that indicates that what we have set out does strike the right balance, and to that end, I ask members not to support amendment 21 from Tim Eagle, amendment 315 from Rhoda Grant or amendments 311, 313, 314, 316 and 337 from Ariane Burgess.

That would be for review of the plan, not its duration. As I have set out in my comments, we would look to regulations and further guidance to set out what the overall duration of the plan would look like. Hence, I feel that we have struck the right balance in having the review every five years.

It is not for me to set that out right now, because we would need to do more work on the matter and have more engagement across the piece. In relation to what Rhoda Grant and Ariane Burgess have proposed, I feel that there is an agreement to be reached between us, but I do not think that fixing this in primary legislation is the way to do it.

Amendments 390, 18, 391, 19, 392 and 396 from Tim Eagle look to do away altogether with the requirement for regulations to provide for obligations to ensure that there are land management plans and engagement with communities on them. They seek to require regulations only to provide that landowners ensure that they engage with a restricted category of persons—and only on the development of plans, not on significant changes to them—and they also seek to introduce in regulations an ability for landowners to report members of the community. I feel that those amendments are against the spirit of what the bill is looking to achieve, and I ask members not to support them.

I also recommend opposing amendment 340 from Rhoda Grant.

We are addressing that through the measures that we have introduced in the bill by, for example, looking at the management of our land more widely and making that more transparent, and through the transfer test and our lotting proposals. Ultimately, that is about trying to diversify land supply and land ownership in Scotland. That is why we have prohibitions in place so that land cannot all go to one owner. Does the bill address, or would it ever have been able to address, the significant issues in relation to the management and ownership of land in Scotland? No, but we have to ensure that we have an evidential basis for the measures that we introduce, so that they withstand any challenge that could come our way.

I have mentioned other work that is going on that could potentially help in the urban environment. There is also the community right to buy review. The bill is one step right now. It cannot fix all the problems, but we are introducing new measures and policies that I hope will have a significant impact and will be another step on the land reform journey.

I will comment briefly on Douglas Lumsden’s amendments 343 and 344. As I said when I commented on similar amendments from Douglas Lumsden in group 1, the amendments relate to a matter of interest in my constituency. I make it clear that I am here in my capacity as a minister of the Scottish Government. The position that I am presenting reflects the collective view of the Scottish Government and concerns a matter of law and policy for which I have ministerial responsibility.

Separately, and in line with the Scottish ministerial code, I have made my views and those of my constituents known to the responsible minister in the appropriate way. However, the issue under discussion today is distinct from that constituency interest, and my contributions today should therefore be understood as reflecting the Government’s position and not a personal or constituency-specific stance. Having said that, I am not sure how Douglas Lumsden’s amendments would fit with the current drafting of the bill, which is why I recommend that members oppose the amendments at this stage.