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Historic Environment Scotland Bill: Stage 3

– in the Scottish Parliament on 4th November 2014.

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Photo of Tricia Marwick Tricia Marwick None

The next item of business is stage 3 proceedings on the Historic Environment Scotland Bill.

In dealing with the amendments, members should have the bill as amended at stage 2, which is SP bill 47A, the marshalled list of amendments, which is SP bill 47A-ML, and the groupings of amendments, which is SP bill 47A-G.

The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. 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 buttons as soon as possible after I call the group.

Members should now refer to the marshalled list of amendments.

Section 2—Functions of Historic Environment Scotland

Group 1 is on the functions of historic environment Scotland: promoting the maintenance of the historic environment. Amendment 1, in the name of Liam McArthur, is the only amendment in the group.

Photo of Liam McArthur Liam McArthur Liberal Democrat

Committee colleagues will recall that, at stage 2, I lodged and moved various amendments reflecting a range of concerns that I had at that time. Many of those concerns were born of the experience of constituents in Orkney, whether they involved a desire to avoid historic environment Scotland taking an overcentralised approach, the need to ensure that it respects and involves local expertise or, working back the other way, a determination that local councils should be able to continue to access advice and guidance from HES to help them to fulfil their own statutory functions. In each instance, the undertakings and assurances that were offered by the cabinet secretary were adequate and helpful.

As for the risks associated with HES achieving charitable status and the potential for conflicts of interest and the concerns that staff and resources may be focused away from current functions towards revenue raising, only time will tell. However, I am not convinced that amending the bill would achieve the desired aim, although the committee for the duration of the current session of Parliament—and, indeed, successor committees—will want to keep those matters under review.

I do, however, believe that the bill would still benefit from change in relation to the functions of HES. The issue was raised initially by the Law Society of Scotland, to which I am grateful. Subsequently, the Friends of Seafield House group in South Ayrshire has highlighted a specific example of why the issue needs to be revisited and, I hope, addressed in the bill.

Photo of Chic Brodie Chic Brodie Scottish National Party

Subsections (d) and (e) of section 2 concern

“protecting and managing the historic environment” and

“conserving and enhancing the historic environment.”

How would amendment 1 add to that?

Photo of Liam McArthur Liam McArthur Liberal Democrat

I know that Chic Brodie has been in fairly regular contact with Friends of Seafield House and will be aware of its specific concern that “protecting” and “conserving” do not reflect the adequate needs in that particular case. I understand that the local health board has not been prepared to maintain the fabric of a building that Friends of Seafield House is seeking to take over in due course.

One of my amendments at stage 2 sought to separate the “conserving” and “enhancing” functions of HES, recognising that those could be incompatible in some circumstances. This time, in section 2, I am looking to add a requirement on HES for

“promoting the maintenance of the historic environment”.

The Law Society supports that; so does—as Chic Brodie will be aware—Rob Close, the chair of Friends of Seafield House, on the basis of that group’s experience of trying to save a building that is owned by the local health board.

In his letter to me, which was probably also sent to Chic Brodie, Mr Close explains:

“The word ‘maintenance’ has a much more practical meaning: it is a word that talks directly to owners who are not minded to ‘conserve’ or ‘preserve’.”

Mr Close goes on to quote from “Our Place in Time—The Historic Environment Strategy for Scotland”, which refers repeatedly to the need to maintain and to maintenance as well as to the benefits of “a well maintained environment”.

Mr Close argues that

“having the word ‘maintaining’ in addition to ‘protecting’ and ‘conserving’ would cover situations where the public/private owner is not minded to protect or conserve but to bring about the demise of a building for economic reasons”.

He adds that giving HES that function would allow the fabric of a building to be maintained while its fate was being decided, thereby potentially helping local communities—which I know that the cabinet secretary, like me, is keen to see become more directly and actively involved in the historic environment—to save a much-valued building.

Other colleagues who, like Chic Brodie, represent that part of the country will be more familiar with the details of the Seafield house campaign, and I would not presume to judge the actions of either the local health board or the council, which I believe has refused to serve a repair notice. Nevertheless, I think that it offers a specific example of the sort of benefit that amendment 1 could help to deliver.

I know that the cabinet secretary was sceptical at stage 2, but I hope that having had time to reflect further and consider the specific example that I have given—there will undoubtedly be others in other parts of the country—she will support my amendment.

I move amendment 1.

Photo of Elizabeth Smith Elizabeth Smith Conservative

Mr McArthur makes a good point about an issue that has been debated consistently throughout the bill’s consideration—the need to ensure that the principle of streamlining the care of our historic environment in a single body does not override the importance of local decision making, community responsibility and individual responsibility, as they have an essential role to play in the care of the environment.

That has led to an interesting semantic debate about the meaning of the words “conserve”, “preserve” and “maintain”. On one level, that is a pedantic consideration, but it is hugely significant when it comes to the detail of the bill. Therefore, I support amendment 1.

Photo of Patricia Ferguson Patricia Ferguson Labour

I, too, support Liam McArthur’s amendment 1, which is eminently sensible in the circumstances that we face. I am sure that we all know of historic and important buildings in our areas that, through a lack of maintenance, it has been impossible to conserve. I think that it is entirely sensible for us to look to make the definitions as clear as we can and to understand what we are trying to do.

I repeat that, if buildings of a historic or important nature are not maintained, the opportunity to conserve them for the good of communities can well be lost. It is important that the word “maintenance” is included in the bill.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

Amendment 1 seeks to give historic environment Scotland the particular function of

“promoting the maintenance of the historic environment”.

From what members have said, I think that the emphasis is on the word “promoting” rather than on delivery of the maintenance.

There has been detailed consultation and deliberation on the functions of HES. There is widespread agreement among stakeholders that the functions should be defined at a high level. A great deal of deliberation delivered the functions that are listed in the bill, and amendment 1 would undermine the consensus that was achieved as the bill was developed on what the functions of the new organisation should be.

There is agreement that HES needs freedom within its operating remit to decide how best to deliver and that there needs to be space for its approach to develop over time. I believe that those positions are correct, and I do not wish to disrupt them. The bill should set out the overall task for HES in broad terms; it should not offer a detailed catalogue of the contents of the toolkit that it will deploy.

Promoting maintenance is already fully covered by HES’s general function of

“investigating, caring for and promoting Scotland’s historic environment” and its particular functions of “managing” and “conserving” the historic environment.

Historic Scotland already does a broad range of work in this area. It is active in promoting maintenance, for example through the development of the traditional building skills strategy and the traditional building health check initiative. I launched the pilot for the health check scheme in Stirling two years ago. It aims to promote proactive building repair and maintenance and to stimulate demand for skilled tradespeople, and it is being led in collaboration with Stirling Council and the Construction Industry Training Board. HES will continue that work.

In short, I do not for a moment dispute that, as Patricia Ferguson said, maintenance is a crucial means of ensuring the long-term preservation of our historic environment. That fact is not in doubt anywhere in the sector. However, I believe that amendment 1 could pose problems for HES and more widely. Because it is so specific about promoting maintenance, it could unbalance HES’s functions, which have been deliberated on and which we have achieved consensus on. For example, it might lead to the impression that promoting maintenance is more important than demonstrating maintenance on the properties that HES will manage on ministers’ behalf or supporting maintenance through its grants programmes.

I note that local authorities already have strong powers to take action in respect of listed buildings that are being neglected by their owners. Those powers include the ability to issue repair notices, compulsory purchase, and the power to make repairs to unoccupied buildings and recover the costs. Giving HES a function of promoting maintenance would not strengthen those powers; worse, it might create confusion by implying that HES is in some way directly responsible for the maintenance of listed buildings in private ownership.

I do not believe that inserting the specific function for historic environment Scotland of

“promoting the maintenance of the historic environment” would improve the bill. Therefore, I do not support amendment 1.

Photo of John Scott John Scott Conservative

I call on Liam McArthur to wind up and to press or withdraw his amendment.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I thank Liz Smith for her support for my amendment. Indeed, at stage 2 she supported a similar amendment. I also thank Patricia Ferguson for her comments. I think that she was right to point to the fact that maintenance is an issue that will probably affect communities in instances across the country and that without maintenance the option of preserving is really rather difficult to achieve.

The cabinet secretary talked about the consultation deliberations—I do not doubt those for a second—but she also talked about the potential for creating confusion and undermining a consensus. I have not been contacted by anybody who has suggested to me that the amendment that I have lodged and moved risks unravelling a consensus. On the contrary, the Law Society of Scotland, for example, has been in touch with me to express its continued support for the amendment. In addition, Friends of Seafield House has provided a very helpful example of why this particular loophole in the functions of HES could and should be addressed at this stage.

Therefore, on the basis of what I have heard and the representations that I have received, I am convinced that amendment 1 is necessary to the bill, and I will therefore press it.

The Deputy Presiding Officer:

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

There will be a division.

As this is the first division, there will be a five-minute suspension until we vote.

14:30 Meeting suspended.

14:35 On resuming—

We will now proceed with the division on amendment 1.

Division number 1 Historic Environment Scotland Bill: Stage 3

Aye: 45 MSPs

No: 62 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Deputy Presiding Officer:

The result of the division is: For 45, Against 62, Abstentions 0.

Amendment 1 disagreed to.

Section 12—Directions and guidance

We move on to group 2. Amendment 2, in the name of Liz Smith, is grouped with amendment 3.

Photo of Elizabeth Smith Elizabeth Smith Conservative

The cabinet secretary said in her opening comments at both stage 1 and stage 2 that the Scottish Government’s policy position from the start has been that the new body should be regulated, fully transparent and subject to the highest quality of external scrutiny that the Commissioner for Ethical Standards in Public Life in Scotland can provide.

The cabinet secretary has herself been fully transparent in her approach, and I think that we all commend her for that. However, there are some remaining issues, most especially those that relate to accountability and the possible conflict of interest between HES’s regulatory function and its ability to seek grants and carry out some of the work related to them.

The cabinet secretary will know that, between stages 2 and 3, the Law Society of Scotland reiterated its concerns about the possible conflicts of interest, specifically those that could arise if HES awards grants at the same time as seeking others in its role as a charity. The Law Society questions whether some aspects of the regulatory role can sit comfortably with charitable status.

At stage 2, the cabinet secretary seemed to intimate that the bill will not create such tensions, but I believe that a bit of an issue remains about the final accountability, and that is the reason for amendments 2 and 3. They are specific to the concerns about accountability in situations—albeit that they are likely to be rare—in which HES board members might express disquiet about some aspects of Scottish Government strategy in general terms. The issue has not gone away, and we could have had a little more engagement from the Government with stakeholders on the issue.

In the letter that the cabinet secretary sent to the convener of the Education and Culture Committee on 28 May, she was clear that, if the Scottish ministers did not think that HES was playing a sufficiently strong role in addressing matters of concern to the wider cultural sector as captured in that strategy, they would direct the board. That confirms that there is ministerial direction. As the cabinet secretary has said many times, that is quite separate from the operational independence of the body, but it naturally draws into question what could happen. The cabinet secretary was clear that there could be situations in which there might be a disagreement.

There are still some issues here and we could do with some extra safeguards. That is why I move amendment 2.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

As I confirmed at stage 2, the corporate plan is a vital document and Liz Smith is right to recognise its primacy. I share her sentiment that the corporate plan must have the highest status and must offer certainty for HES in planning its work. That is precisely why the bill explicitly provides for HES to create such a plan and for its approval by ministers.

That explicit provision goes a step beyond the establishing legislation for analogous bodies such as the National Library of Scotland and Scottish Natural Heritage, in which we do not have that provision. The corporate plan is the foundation of the corporate performance framework for HES. Ministers will approve it, which means that we will share ownership and accountability for it with HES. The plan and any revisions will be public documents. The performance report for the organisation will be published at least annually. Any failure to deliver, therefore, will be transparent as will the reasons given for failure.

The ministerial power for direction is there for good reasons. It can be used in a positive way to support HES by, for example, clarifying procedural matters such as routine sponsorship arrangements and how they will work. As I remarked during stage 2 about a similar amendment, there seems to be an assumption that ministers will regularly issue directions to HES to do things that HES feels are not wise. I repeat that ministers in this Government will not act in that way. In seven years as a minister, I cannot recall ever issuing a direction in opposition to the advice of a sponsored body.

Such an action is rare across the whole of Government. A formal direction, especially one that goes against the advice of a sponsored body, is the end of a long process of discussion and never the starting point. In any case, the chair and the board of a non-departmental public body do not require a specific provision to raise a challenge to any proposals that would significantly compromise the delivery of agreed outcomes. Indeed, they could engage the Parliament, committees and MSPs if that was the case.

It is in the nature of the role of a sponsored body and the normal sponsorship relationship between Government and NDPBs that such matters are explored and resolved long before any formal communication or direction takes place. For those reasons, I believe that amendments 2 and 3 would simply introduce unnecessary complications and bring legislative micromanagement into the clear and straightforward relationship that is centred on the corporate plan.

I understand the sentiments behind Liz Smith’s amendments, but they are not necessary for good governance and to how good government works. I continue to oppose the amendments as I did at stage 2.

Photo of Elizabeth Smith Elizabeth Smith Conservative

I will press amendment 2. I hear what the cabinet secretary says and I began by complimenting her on her own transparency during this process, so I am very conscious of the fact that this kind of problem has not arisen. However, I refer her back to the Official Report of stage 2, when she admitted that there could be a situation in which there was a disagreement.

While I am well aware that there is public scrutiny of the corporate plan and that the cabinet secretary could be brought before a parliamentary committee, such scrutiny would come after a problem was identified. I am trying to prevent the problem from happening in the first place, and we need that extra dimension of scrutiny.

The Deputy Presiding Officer:

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 2 Historic Environment Scotland Bill: Stage 3

Aye: 44 MSPs

No: 65 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Deputy Presiding Officer:

We move on to group 3. Amendment 4, in the name of Fiona Hyslop, is grouped with amendment 5.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

These technical amendments relate to the prescribing, by order, of persons who can manage properties in care or collections on behalf of ministers.

The bill as introduced included powers to delegate the care and management of the properties in care and associated collections to HES and also to delegate those functions to other persons. That was to allow for future flexibility in arrangements to ensure the long-term preservation of the properties in care.

In its stage 1 report, the Delegated Powers and Law Reform Committee recommended that, when ministers are delegating their powers to persons other than HES, that should be subject to parliamentary scrutiny. The job of looking after these properties for the nation is a very important one, and I was happy to agree that any persons who would take it on should be subject to appropriate scrutiny.

At stage 2, I proposed amendments requiring that ministers prescribe, by order, any persons to whom functions could be delegated, in line with the committee’s recommendations. Amendments 4 and 5 are needed to complete that intention by ensuring that the affirmative procedure is required for such orders, as the committee and I are agreed that it should be.

I move amendment 4.

Amendment 4 agreed to.

Amendment 5 moved—[Fiona Hyslop]—and agreed to.

Schedule 2—Functions of Historic Environment Scotland in relation to scheduled monuments

The Deputy Presiding Officer:

We move on to group 4. Amendment 6, in the name of Fiona Hyslop, is grouped with amendments 7 to 11.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

This group of six amendments relates to the powers that are available to ministers to ensure that the outcome of a successful appeal is given effect to by HES.

The amendments relate to appeals under new section 1C of the Ancient Monuments and Archaeological Areas Act 1979 challenging a decision of HES to include a monument on the schedule of ancient monuments; new section 5B of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 challenging a decision of HES to include a building on the list of listed buildings; and section 19 of the 1997 act challenging a decision of a planning authority to refuse consent. A ground of appeal may be that the building ought not to be included on the list.

Those appeals all enable a challenge to be made against inclusion on the schedule or on the list. The provisions in the bill as it stands do not enable ministers to direct HES to remove a property from the schedule or list following a successful appeal. The amendments ensure that that is the case and that the powers that are available to ministers following determination of appeals are consistent with the powers that are available in relation to other appeal procedures.

It is, of course, important that ministers have full powers to ensure that effect is given to a successful appeal. I should say that the power of direction is a safeguard, since HES will naturally be expected to do whatever is required after an appeal, without a direction from ministers.

I move amendment 6.

Amendment 6 agreed to.

Amendments 7 to 11 moved—[Fiona Hyslop]—and agreed to.

The Deputy Presiding Officer:

That ends consideration of amendments.

The result of the division is: For 44, Against 65, Abstentions 0.

Amendment 2 disagreed to.

Amendment 3 not moved.

Section 24—Subordinate legislation