The next item of business is stage 3 proceedings on the Land Reform (Scotland) Bill.
In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list, the supplement to the marshalled list and the groupings. The division bell will sound and proceedings will be suspended for five minutes for the first division on the bill this morning. 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 want 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 1—Land rights and responsibilities statement
This is a historic day of proceedings on Scotland’s land reform journey. I must apologise, because, as members will realise and, I hope, understand, I am struggling with a bad throat infection. I will have the support and help of my very kind colleague Paul Wheelhouse during the proceedings on amendments.
Amendments 12, 20, 22 and 29 are minor amendments, which tidy up the drafting of section 1, on the land rights and responsibilities statement. A number of amendments were made to section 1 during stage 2, which increased the section’s size considerably, making it unwieldy for the reader, and further amendments have been lodged for consideration today. Amendment 22 will improve the situation by splitting section 1 into three sections, which will cover the duty to create the land rights and responsibilities statement, the publication and review processes for the statement and the duty to promote the statement, respectively.
Amendments 12, 20 and 29 are minor consequential amendments, which are necessary as a result of amendment 22.
Amendment 21 clarifies the duty on the Scottish ministers regarding what is set out in the land rights and responsibilities statement. The duty as currently drafted requires ministers to further the objectives in the statement. That was a helpful addition to the bill that was proposed by Michael Russell at stage 2. I said then that I was happy to accept his amendment, but that I would have to consider whether further changes in wording would be needed at stage 3.
The definition of the statement was also amended at stage 2, from
“a statement of Scottish Ministers’ objectives for land reform” to
“a statement of principles for land rights and responsibilities in Scotland.”
The purpose of amendment 21 is to tie in with that revised definition so that ministers are now required, when exercising their functions, and as far as reasonably practicable, to promote the principles set out in the statement.
I welcome amendments 14 and 15 from Sarah Boyack. The strength and wellbeing of our communities are right at the heart of all the work that the Scottish Government does, and I am happy to accept Ms Boyack’s amendments, which will ensure that that is given due regard in the land rights and responsibilities statement.
I move amendment 12.
I note that the minister’s health is not 100 per cent, and I inform her that I have written out all my speeches in draft, so that if my voice goes, Claudia Beamish can stand in. I hope that it will not get to that point today, in what will clearly be a marathon session.
I very much welcome the land rights and responsibilities statement, which will help in implementing the legislation. Amendments 14 and 15 replace the words “fostering community resilience” with
“supporting and facilitating community empowerment” in the list of factors that Scottish ministers must have regard to the desirability of when they are preparing the land rights and responsibilities statement.
When I proposed adding “fostering community resilience” at stage 2, I did so in part because it would be in line with the spirit of our other recent land reform legislation, the Community Empowerment (Scotland) Act 2015. I was keen for us to establish clear links between the 2015 act and the Land Reform (Scotland) Bill, to ensure that the focus on community empowerment was maintained and strengthened.
The new wording of
“supporting and facilitating community empowerment” is more appropriate, as it links directly to the kind of principles that the statement will contain. It also links back to the 2015 act, which seeks to support our communities to empower themselves through the ownership and use of land.
It is important that ministers are required, when preparing the statement, to have regard to the desirability of supporting and facilitating the empowerment of our communities. That requirement will ensure that our communities remain at the heart of our land reform agenda. Communities should be supported in taking responsibility for improving their interests and outcomes, and I believe that the land rights and responsibilities statement can play an important part in supporting their empowerment.
I very much hope that my amendments will be supported today. I am glad that the minister accepts them, and I hope that that support might mean that some of my other amendments, which are coming very shortly—[Interruption.]
No. Well, I thought that I would try. I will at least be glad that amendments 14 and 15 are likely to get through. Thank you very much.
Very briefly, I commend the minister’s determination to be here despite obviously not being very well. I will let my colleagues sweat it out as to which one should take over if I should be afflicted by the same problem.
It is nice to start the day on a note of consensus. We are very happy with all the amendments in this group, because we believe that they improve the land rights and responsibilities statement.
At stage 2, I lodged amendments that required ministers, when preparing both the land rights and responsibilities statement and the part 4 guidance, to have regard to the desirability of promoting respect for, and observance of, relevant human rights. At stage 2, Michael Russell and Sarah Boyack made helpful additions to the bill through amendments that set out that human rights include economic, social and cultural rights in instruments including the International Covenant on Economic, Social and Cultural Rights, the “Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security” and others that the Scottish ministers consider, after consulting the Scottish Human Rights Commission, to be relevant.
The amendments in group 2 build on the issues that Mr Russell and Ms Boyack raised at stage 2. Amendments 16, 17 and 19 define “human rights” in section 1. That definition expressly includes human rights that are contained in the International Covenant on Economic, Social and Cultural Rights.
Amendments 13 and 18 will require the Scottish ministers, in preparing the statement, to have regard to the desirability of
“promoting respect for such internationally accepted principles and standards for responsible practices in relation to land as the Scottish Ministers consider to be relevant”.
Those principles and standards include those that are in the “Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security”.
Amendment 19 defines “human rights” as
“the Convention rights ... and ... other human rights contained in any international convention, treaty or other international instrument ratified by the United Kingdom, including the International Covenant on Economic, Social and Cultural Rights”.
In determining what rights are relevant human rights for the purposes of section 1, ministers may consult the Scottish Human Rights Commission and such other persons or bodies as they consider appropriate. That reflects a point that Mr Russell made at stage 2 on the assistance that the Scottish Human Rights Commission will be able to provide in consideration of what are relevant human rights in that context. The definition of “human rights” is wide enough to include other human rights that we have identified that could be relevant, including rights in the United Nations Convention on the Rights of Persons with Disabilities and the United Nations Convention on the Rights of the Child.
The “Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security” is a framework document that sets out principles and internationally accepted standards for responsible practices, rather than being a human rights instrument in the sense that the International Covenant on Economic, Social and Cultural Rights or the European convention on human rights are. It is dealt with slightly differently. Amendments 13 and 18 will ensure that ministers will have regard to the desirability of
“promoting respect for such internationally accepted principles and standards for responsible practices in relation to land as the Scottish Ministers consider to be relevant” in preparation of the statement, including the principles and standards in the voluntary guidelines. That wording also leaves ministers open to having regard to other relevant international standards and practices in relation to land that may come into effect in the future.
Amendments 53 to 56 and 59 will apply the same approach to consideration of human rights, the voluntary guidelines in part 4 and the preparation of the part 4 guidance.
The amendments in group 2 will ensure that we take in the bill a robust approach to interpretation and definition of human rights. They demonstrate our absolute commitment to human rights in the context of the land reform debate; human rights are crucial to achievement of our goal of ensuring that land is owned and used in the public interest for the benefit of the people of Scotland. [Interruption.]
Amendment 93 is consequential on amendments 19 and 59, which define “human rights” for the purposes of parts 1 and 4. The amendment will remove the interpretation provision, which sets out rights that are included in the term “human rights”.
The amendments in group 2 reflect our preferred approach of defining “human rights” in each part for accessibility and because there is not a uniform definition of “human rights” that can be applied throughout the bill.
I move amendment 13.
For the Labour group in Parliament, the strengthening of the human rights underpinning of the bill is incredibly important, because it provides the context for the detail of the bill that comes thereafter and the framework by which people will interpret implementation of the bill. It is also important in recording that community rights need to sit alongside our rights as individuals. Therefore, I very much welcome the minister’s amendments. Human rights were a key issue in the committee’s stage 1 report. It had cross-party buy-in; it was an area that we all felt needed to be strengthened.
Mike Russell moved an amendment at stage 2 to add specific reference to the International Covenant on Economic, Social and Cultural Rights. The committee very much welcomed and supported that amendment. I had moved amendments suggesting the addition of a requirement for the Scottish Government to have regard to the “Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security”. By adding those references, we do not just strengthen our own legislation on land reform, but align ourselves in solidarity with other communities and other countries, particularly indigenous communities around the globe that some of us have met over the years through our cross-party group on international development. I welcome that the minister has taken on our intentions, improved our wording and put them in the correct part of the bill. When a member is lodging an amendment, they do their best at the time.
The references to
“internationally accepted principles and standards” are important to have in the bill. The minister’s amendments also include reference to seeking the views of the Scottish Human Rights Commission, which is important in order to ensure that its human rights expertise is drawn on. The SHRC’s letter to the committee was trenchant, so I welcome the fact that the minister has addressed the concerns that it raised with us just a couple of months ago.
The amended bill will speak to the ambition of delivering global sustainable development and acknowledge the importance of food security and the capacity to support and sustain communities. It makes the connections between our ambitions for global sustainable development goals with our ambitions for land reform and the empowerment of communities across Scotland. Therefore, Scottish Labour will support the amendments in group 2.
I thank Global Witness for its advice and work. It gave us good ideas and advice—in particular, about how we could strengthen the human rights framework in the bill. I am glad to see that we have such amendments, which I hope we can all support.
Land reform in Scotland is hard to do at this time because of the European convention on human rights. I am not in any sense against the ECHR, but as we heard at the start of the debate, land reform post-ECHR tends to be focused on individuals’ property rights. There are other rights, and those rights are expressed in a range of documentation, including the documents that are referred to in the amendments in group 2.
Human rights has been a key issue—as Sarah Boyack said, it connects us with issues about land use and access to land that are widespread throughout the world. We should acknowledge the work of Megan MacInnes of Global Witness, which helped us to understand that; the work of Peter Peacock in Community Land Scotland, which helped to bring the issues to focus; and the work of Kirsteen Shields in the University of Dundee. We should also recognise the world-leading excellence of our own human rights framework. The work of Professor Alan Miller, the retiring chair of the Scottish Human Rights Commission, must be recognised here, as it is recognised internationally.
The addition of amendments that will ensure that the Scottish Human Rights Commission is consulted as we go forward with land reform is extremely important. I have said several times during the passage of bill that, ironically, it would not be possible for Parliament currently to pass the Crofters’ Holdings (Scotland) Act 1886 because it impinges on the ECHR—in particular, article 1, protocol 1 on rights in relation to property. That does not mean that we should not try to undertake radical land reform in Scotland—of course we should. Our constituents want it—my constituents want it and people across the country want it—but it is hard to do.
What we have put in the bill—I am grateful to the Scottish Government and especially to the minister, who took the same steps in the Community Empowerment (Scotland) Bill and agreed to similar changes—is a foundation for future action in Scotland. As the law develops, that foundation will mean consideration of not just the important elements in the ECHR, but other documentation and other experience worldwide. It will allow land reform to deepen and intensify in Scotland for the benefit of the people of Scotland. It is not an abstract; rather, it is about how people relate to and use land, and how we, as the many, access the land of Scotland, which is a common birthright. The amendments in group 2 are a vital big step forward, although the changes may seem to be technical. I am grateful to the Scottish Government for helping us to take that step forward.
I have harboured occasional concerns about the concept of relevant human rights ever since it first appeared in evidence to the committee. There seems within that concept to be an unmentioned inference that the Government can somehow cherry pick whatever convention or covenant most suits its purpose, and that the various other guidelines and conventions are somehow on an equal footing with the European convention on human rights. Indeed, Dave Thompson apparently believed that we should simply dispense with the ECHR when it comes to agricultural holdings legislation, which was an interesting concept in itself.
If I may quote from the Official Report, Mr Thompson said that
“The fact that the ECHR is written into the 1998 act needs to be looked at. That provision needs to be removed so that we have the same freedom in proposing legislation as any other legislature has.”—[Official Report, Rural Affairs, Climate Change and Environment Committee, 3 February 2016; c 56.]
I wonder whether some of those conventions could not come back to haunt the Government a little bit. Article 15 of the International Covenant on Economic, Social and Cultural Rights, which the minister mentioned, commits signatories
“To enjoy the benefits of scientific progress and its applications”.
I find myself wondering where that might leave the Government—for example, in relation to its stance on genetically modified crops, if that were to be tested. However, that is for another debate. I would be grateful if the minister could confirm in winding up that the ECHR still provides the basis for human rights in Scottish legislation that is passed by this Parliament.
If I may, I will respond on behalf of Dr McLeod to confirm that the ECHR does form the basis for human rights in Scottish legislation.
Amendment 13 agreed to.
Amendments 14 and 15 moved—[Sarah Boyack]—and agreed to.
Amendments 16 to 22 moved—[Aileen McLeod]—and agreed to.
Section 7—Programme of work
I declare an interest as a member of the Co-operative Party, which is committed to a model that represents a global ideal that is locally, democratically and practically delivered. Co-operatives and, as identified in amendment 100, community benefit societies have a great deal to offer as we consider the issue of land reform. I urge the minister to understand that and reflect that it is a logical consequence of the Government’s own position on community empowerment.
There is no doubt that community benefit societies can have a significant social and, critically, economic impact and can ensure that, in communities where the land is held in common, there is an underpinning democratic commitment that ensures the engagement of those who best understand the needs of their communities and, critically, the opportunities that can be created to sustain those communities.
In any consideration of areas where land reform and community ownership have happened, we can see the flourishing of community engagement and co-operative models to ensure that there is a benefit to the community. Amendment 100 is a modest amendment but a significant one, I believe. All that it does is ask the land commissioners, as part of the programme of work, to raise the issue of the benefits of community land ownership and how it can be promoted and to look at the whole question of how community benefit societies can be promoted.
I genuinely believe that this is a way and a means of harnessing all the talent and energy that we have seen in our communities when they have been engaged with land reform. It is a fundamentally important opportunity to ensure that land reform also enriches and sustains those communities. I will not comment too much on other amendments at this stage, but I commend the amendments from Claudia Beamish.
In relation to amendment 27, I thank the minister for acknowledging the point that I made at stage 2, which was that the provision to exclude from membership of the land commission people who work for a local authority would exclude a whole number of people. Particularly in rural and island communities, local authorities provide very important employment, which is sometimes part time. I thank the minister for lodging amendment 27, which reflects the approach that she has taken on large parts of the bill. I commend her for that.
I hope that members find amendment 100 worth while and will support it.
I move amendment 100.
Amendments 23 and 24 relate to the maximum period of tenure of a Scottish land commissioner. At stage 2, I lodged a similar amendment, which I withdrew on the basis that the minister would provide further clarification on appointment terms.
Unfortunately, the position remains unclear in the bill. Section 8(3) provides that
“Each member is to be appointed for such period, not exceeding 5 years, as the Scottish Ministers may determine.”
Section 8(5) allows for reappointment and section 8(5A) limits a reappointment to a period not exceeding five years, so, at the moment, there is nothing to prevent a commissioner from serving for 10 years or even more than two five-year terms. The principle of having a cap of eight years would ensure that there was new blood in the commission and would enable it to meet the challenges of its strategic plan and programme of work, which themselves are subject to review and update. It would prevent any entrenchment of views or the domination of particular individuals’ approaches. Eight years is a sufficient period of time not to create any difficulties with the smooth operation of the commission.
The amendments, which are in the interests of good governance, tie in with the code of good practice that the minister mentioned at stage 2, which does not state how many times a member can be reappointed. Instead, it caps the total period for which a member can serve at eight years. The minister said that the bill will allow the Scottish ministers to adhere to that, as it allows them to determine the length of an appointment, up to a maximum of five years. However, the period beyond that, which relates to reappointment, is still in question and remains unclear.
It is my understanding that not all public bodies come within the remit of the Commissioner for Ethical Standards in Public Life in Scotland; only specified public bodies do so. Although some bodies may observe the code of good practice, the commissioner has no locus in this area, and appointments are dealt with under the Public Appointments and Public Bodies etc (Scotland) Act 2003. Perhaps the minister could clarify whether the bill needs to include a reference to that act to ensure that appointments to the land commission are regulated by the Commissioner for Ethical Standards in Public Life in Scotland. That act is not currently referenced in the bill.
On amendment 101, it is important to ensure that our future land commissioners have the necessary knowledge and experience of the matters that are put in front of them. Someone with practical knowledge of land management can easily judge whether land is being actively managed and is not derelict or vacant, as farming is still the main use of our land, whether owner occupied or tenanted. Amendment 101 would ensure that agricultural interests are given due consideration.
Amendment 102 relates to membership of any committee that is established by the land commission. Under section 15(4),
“The Commission may appoint a person who is not a member of the Commission to be a member of a committee.”
That makes practical sense but, with other recently established bodies, such as Historic Environment Scotland, provision has been made to ensure that such a person is not entitled to vote at committee meetings unless the body subsequently decides that such a non-member can have a vote. Ultimately, matters will normally go back to the commissioners for a final decision, and they can make their own rules. Therefore, in the interests of consistency with other bodies that have recently been set up by the Scottish Government, and for reasons of transparency, I propose that the provision that is contained in amendment 102 be inserted. It would not affect in any way such a person’s right to speak, present a case or otherwise fulfil their role.
I will speak to amendments 25 and 26 and make some other comments.
Although I listened carefully to the argument that was put forward at the Rural Affairs, Climate Change and Environment Committee that not too many areas of skills and experience should be listed, I believe that the areas that amendment 25 proposes be added are of fundamental importance to the role of the land commission in the development of a fairer Scotland and should therefore be included.
I thank the minister for her support in developing these amendments, and I live in hope that I might get my first amendment agreed to in this Parliament—you never know your luck.
To be a bit more serious, section 9(1)(a) makes it clear that, in appointing members of the commission, the Scottish ministers must have regard to the commission’s “having expertise or experience” in a list of subjects, and amendment 25 seeks to add
“human rights ... equal opportunities” and
“the reduction of inequalities of outcome which result from socio-economic disadvantage” to that list. Amendment 26 is a consequential amendment that makes it clear that the definition of “equal opportunities” in section 9(4) applies to the reference to “equal opportunities” that is proposed for inclusion in section 9(1)(a) and (b).
I am afraid that I am unable to support amendment 101, in the name of Jim Hume, as the word “practical” makes the provision too restrictive and specific. However, we acknowledge the spirit behind what Mr Hume is putting forward.
Finally, I must declare an interest as a member of the Scottish Co-operative Party in speaking strongly in support of amendment 100, in the name of Johann Lamont. As she so eloquently made clear, co-operative models that involve members will be one of the ways for Scotland’s rural and, indeed, urban communities to develop their own aspirations.
Madainn mhath, Oifigeir-riaghlaidh, agus madainn mhath co-obraichean. Tha mi a’ cur luach air a’ chothrom a bhith a’ toirt atharrachadh co-cheangailte ris a’ Ghàidhlig dhan t-seòmar-deasbaid, airson dèiligeadh ri duilgheadas bho atharrachadh agam aig ìre 2, a dhèanamh cinnteach gu bheil co-dhiù aon neach-labhairt na Gàidhlig air coimisean ùr ath-leasachaidh an fhearainn.
Rather than crucify our indigenous language any further, I will continue in English. For the record, what I was trying to say in Gaelic was: good morning, Presiding Officer, and good morning colleagues. I appreciate the opportunity to bring this Gaelic-related amendment to the chamber, which will deal with a problem arising from my stage 2 amendment on ensuring that there is at least one Gaelic speaker on the new Scottish land commission.
That stage 2 amendment inserted into section 9 new subsection (1A), which states:
“In appointing the Land Commissioners, the Scottish Ministers must take every reasonable step to ensure that one of the Commissioners is a speaker of the Gaelic language.”
Although the Scottish Government welcomed the amendment at stage 2, it considered, on reviewing the text, that it could be interpreted as meaning that the Scottish ministers needed to take reasonable steps to ensure that only one land commissioner was a Gaelic speaker. That might cause practical issues when making appointments, and, in a scenario in which more than one Gaelic speaker applied for the role of commissioner, the provision could be read as meaning that Scottish ministers should not appoint a second Gaelic speaker.
To remedy that, amendment 2, in my name, inserts the words “at least” into section 9(1A), so that it now reads:
“In appointing the Land Commissioners, Scottish Ministers must take every reasonable step to ensure that at least one of the Commissioners is a speaker of the Gaelic language.”
I thank Johann Lamont for setting out the rationale behind amendment 100. As Dr McLeod said to Ms Lamont when she lodged a similar amendment at stage 2, the Scottish Government supports all types of land tenure and, of course, supports ownership of land by community benefit societies as well as other land ownership vehicles. We have clearly demonstrated that in taking forward the Community Empowerment (Scotland) Act 2015, which expanded the structures that community bodies can use under the community right to buy to include community benefit societies as well as Scottish charitable incorporated organisations. However, we believe that community bodies should have the flexibility to decide for themselves how they should be constituted, depending on their needs and aspirations, and we would therefore to be reluctant to support any amendment that could be interpreted as favouring one particular land ownership mechanism over another.
It is not appropriate to amend section 7 in that way. As far as possible, we want the land commissioners to have operational independence and freedom to determine their programme of work, and we do not consider it appropriate to constrain them in that manner or to prejudge their work. We note that amendment 100 would mean that the land commissioners had to include such recommendations in every programme of work that they produced.
We consider that Johann Lamont’s amendment would alter the land commissioners’ programme of work in a way that is unnecessary given the excellent work that is being taken forward by the 1 million acres strategic implementation group. We have recently funded a development officer post with Community Land Scotland to enable it to build capacity and to support it in promoting community ownership and sharing best practice.
We thank Jim Hume for explaining the rationale behind amendments 23 and 24. They have similar aims to amendments that were lodged and then withdrawn at stage 2. Following stage 2, Dr McLeod wrote to Mr Hume to set out why such amendments are not needed. For the record, I will set that out again today. Our intention is that the public appointments process will be regulated by the Commissioner for Ethical Standards in Public Life in Scotland. The commissioner publishes a code of practice for ministerial appointments to public bodies in Scotland and, as a matter of policy, the code of practice will mean that no member of the commission will serve for more than eight years. To ensure that there is the necessary flexibility to deal with exceptional circumstances, however, the provisions of the code can be varied with the commissioner’s agreement.
At stage 2 on 20 January, the minister confirmed that our policy intention is that the Parliament should also approve any reappointment of a member of the commission, and she was happy to support Alex Fergusson’s amendment that clarified that in the bill. I also stress that, under sections 8(2) and 8(5A), the Parliament will be required to scrutinise and approve both appointments and reappointments of members of the commission. If the Parliament had a concern about a reappointment and believed that the balance between continuity and fresh blood on the commission was not being correctly struck, it would be able to make that concern heard during the appointment process. Given Jim Hume’s comments, I also emphasise that section 8(3) provides for a maximum period of five years.
We have stated our intention that the code of practice of the Commissioner for Ethical Standards in Public Life will apply as a matter of policy. In addition, there is an order-making power under section 3(3) of the Public Appointments and Public Bodies etc (Scotland) Act 2003 that could be used to add the Scottish land commission to schedule 2 to that act. The reason why that is not expressly done in the bill is the deliberate policy choice to give the Parliament a prominent role in the public appointments process.
We also thank Jim Hume for explaining amendment 101. The list of experience and expertise in section 9(1)(a) has grown throughout the bill process, but I emphasise to the Parliament again that it will not prevent ministers from considering whether candidates for the land commission have other relevant experience or expertise. We understand the sentiment behind amendment 101, and I assure Mr Hume that our intention in the public appointments process is to select the best candidates to serve on the land commission. However, a balance has to be struck between getting the right people who tick every box and appointing them within a reasonable timescale to do the work that is required to progress land reform.
It was after listening carefully to stakeholders’ views that Dr McLeod lodged an amendment at stage 2 to add “land management” to section 9(1)(a). We do not believe that the addition of “practical” would add anything to that term, so we do not support amendment 101.
We thank Claudia Beamish for lodging amendments 25 and 26, which we are happy to support. I take Ms Beamish’s point and I am glad that she has now had an amendment accepted. We consider that those amendments supplement the list in section 9(1)(a) in a manner that mirrors the package of amendments that the Scottish Government lodged at stages 2 and 3 to strengthen the bill in respect of
“human rights ... equal opportunities” and
“the reduction of inequalities of outcome which result from socio-economic disadvantage”, as Claudia Beamish mentioned in her remarks.
Given the Scottish Government’s commitment to the importance of the Gaelic language and Gaelic culture to Scotland, Dr McLeod welcomed Angus MacDonald’s amendment at stage 2 and we are happy to accept what we believe is a helpful revision.
On amendment 27, we thank Johann Lamont for querying at stage 2 the inclusion of local authority workers in section 10(1), which sets out a list of persons who may not be appointed as a member of the Scottish land commission if they have been in certain offices in the previous 12 months. Following stage 2, Dr McLeod reflected further on the list and wrote to Ms Lamont to advise her that ministers intended to remove the exclusion in respect of local authority workers because, as she highlighted, it can be the case in remote and rural communities in Scotland that many people are reliant on local authority employment.
I add for the record that the land commission’s work will be relevant to urban as well as rural communities the length and breadth of Scotland, and we would not wish to exclude local authority employees in our urban communities from applying to be a member of the commission either.
Amendment 28 is a consequential amendment to ensure that repairing tenancies created under section 5C of the Agricultural Holdings (Scotland) Act 2003, as inserted by section 79B of the bill at stage 2, are caught in the definition of “relevant tenancy” in section 10(3). That will ensure that any tenant or landlord of a repairing tenancy is excluded from being appointed as the tenant farming commissioner, as is already the case for the other types of agricultural tenancy.
We thank Jim Hume for setting out the intention behind amendment 102. However, we cannot support the amendment. Section 16(2) permits the commission to regulate its own procedures and those of its committees, including the quorum of any meeting, and section 15(6) requires a committee to comply with any directions that are given to it by the commission. Those are important provisions, as they give the commission the freedom and flexibility to set up its own internal working procedures, including on issues such as voting rights, but they also ensure that the commission has ultimate control of its committees. Given the operational independence that the Scottish ministers wish the commission to have, it would not be appropriate to make that amendment in isolation.
We welcome amendments 3 and 4, lodged by Mr Dey, to section 20. The Scottish Government considers that it is imperative that the land commissioners can give full consideration to the land use strategy in exercising their functions. However, we are pleased to hear that it is not Graeme Dey’s intention to alter the Scottish ministers’ duties under the Climate Change (Scotland) Act 2009, so we support the amendments for providing that clarity.
The amendment to section 20(5) that I lodged at stage 2 was, I thought, quite straightforward, and I was delighted to secure the support of both the committee and the Government. However, since stage 2, there has been some traffic from stakeholders around the amendment, suggesting that, as drafted, it could be open to misinterpretation. Therefore, at the request of stakeholders and the Government, I have lodged amendments 3 and 4 to provide clarity. It was never my intention at stage 2 to give the land commissioners any statutory role in the implementation and monitoring of the land use strategy. Amendment 3 deletes the words
“the implementation and monitoring of”, leaving the commissioners to take into account the land use strategy in exercising their functions under section 20. It is, as was intended, a response to a request supported in the chamber to deliver the clarity sought by some stakeholders.
Amendment 4 is a minor and technical amendment to ensure that any land use strategy revised under section 57(6) of the Climate Change (Scotland) Act 2009, as well as the one prepared under section 57(1), is covered in section 20(5)(d) of the bill.
I am afraid that the Conservatives oppose amendment 100. I believe that the proposals in that amendment are already being taken forward. The minister mentioned the 1 million acres working group, which encompasses a lot of Johann Lamont’s intentions. I also understand that the land commission will cover the provision with advice and guidance. The minister made it clear at stage 2 that the Government encourages a wide variety of land ownership models, and I take her at her word. Amendment 100 therefore seems to me to be overly prescriptive.
We will support all the other amendments in the group, and I am sorry to hear that the Government will not support amendment 102, because I think that that is, in the interests of good governance, quite an important amendment.
I believe that the success or otherwise of the land commission will be largely dependent on the ability and experience of the commissioners who serve on it, and I hope sincerely that the range of skills that we have sought as a committee at stage 2 and as a Parliament at stage 3 will only enhance its operations for the benefit of the people of Scotland.
The amendments lodged by Claudia Beamish and Angus MacDonald are important. As someone who herself has Gaelic heritage, I recognise the importance of those amendments and the struggle in speaking the language of my forebears. The amendments reflect a deeper issue, which is the danger that the people who appoint people to boards will appoint people who look and sound like them, and the amendments create the opportunity to think more seriously about how to ensure that there is a range of talents and commitments among the people in this public body.
I will press amendment 100, because I believe that community land ownership is one of the most effective models of land ownership. Our own history serves as a record that shows how common ownership of land has ensured that communities that may have been struggling can be revived and regenerated.
The amendment asks that the potential that community land ownership and community benefit societies have to benefit local communities is addressed. Therefore, I do not regard the amendment as overly prescriptive; rather, I consider that it reflects the reality that, too often, the co-operative model is not included in the Scottish Government’s strategy and that, when we have talked about economic models in the past, we have not understood the power of the co-operative model.
In our island and rural communities in particular, the reality is that the co-operative model is a natural and instinctive means by which people co-operate. People have come together through crofting committees, community shops, community enterprises and whatever. Amendment 100 simply locates the significance of that model in the bill, ensuring that the reason why we engage on the question of land reform is to address the question of neglect and the fact that too much of our land has been left unworked and unused, and that communities have been left unregenerated.
It is in that context that I hope that people feel able to support the amendment, which I intend to press.
Before we proceed, I remind members that, if they wish to oppose any amendments, they should do so loudly and clearly so that there is no confusion in the chamber.
The question is, that amendment 100 be agreed to. Are we agreed?
There will be a division. As this is the first division of the morning, I suspend the proceedings for five minutes to allow the division bell to be rung and members to return to the chamber.
11:46 Meeting suspended.
11:51 On resuming—
We will now proceed with the division on amendment 100.
The result of the division is: For 33, Against 83, Abstentions 0.
Amendment 100 disagreed to.
Amendments 23 and 24 not moved.
Section 9—Eligibility for appointment
Amendment 101 moved—[Jim Hume].
The question is, that amendment 101 be agreed to. Are we agreed?
There will be a division.
The result of the division is: For 21, Against 94, Abstentions 0.
Amendment 101 disagreed to.
Amendment 2 moved—[Angus MacDonald]—and agreed to.
Amendment 26 moved—[Claudia Beamish]—and agreed to.
Section 10—Disqualification from membership
Amendments 27 and 28 moved—[Aileen McLeod]—and agreed to.
Amendment 102 moved—[Jim Hume].
The question is, that amendment 102 be agreed to. Are we agreed?
There will be a division.
The result of the division is: For 23, Against 93, Abstentions 0.
Amendment 102 disagreed to.
Section 20—Functions of the Land Commissioners
Amendment 29 moved—[Aileen McLeod]—and agreed to.
Amendments 3 and 4 moved—[Graeme Dey]—and agreed to.
Section 22—Functions of the Tenant Farming Commissioner
We come to group 4. Amendment 30, in the name of the cabinet secretary, is grouped with amendments 5, 6 and 31 to 33.
Some stakeholders and some members of the Rural Affairs and Climate Change Committee have expressed strong concerns about the conduct of some land agents. Amendments 30 and 32 respond to those concerns. They require the tenant farming commissioner to prepare a report on the operation of agents of landlords and tenants in relation to agricultural holdings. That report must include the commissioner’s recommendations for improving the operation of land agents in the sector. It may also include other recommendations that the commissioner considers appropriate. The commissioner must consult relevant stakeholders when preparing the report, and must submit the report to Scottish ministers within 12 months.
Mike Russell’s amendments 5 and 6 would ensure that stakeholders are invited to give their input to the review of the commissioner’s functions under section 22, and that ministers must take their views into account. As I made clear at stage 2, the Scottish Government believes that a wide range of stakeholders should have the opportunity to feed into the review, so I am very happy to support amendments 5 and 6.
Amendments 31 and 33 are technical amendments. Amendment 31 specifies that, before the tenant farming commissioner publishes a code of practice under section 25, he or she must consult any persons appearing “to the Commissioner” to have an interest in the draft code. The amendment simply clarifies that it is in the eyes of the commissioner that such persons have an interest in the draft code.
In the same way, amendment 33 clarifies that, before submitting the report to Scottish ministers under section 33A setting out recommendations for a modern list of improvements to agricultural holdings, the commissioner must consult any persons appearing “to the Commissioner” to have an interest in the draft recommendations.
I move amendment 30.
One of the key questions in the bill is whether change in practice can take place through encouragement or—as I believe—whether statutory force is necessary. That is true in relation to section 22. It is also true in relation to section 4, which deals with estates’ engagement with communities. Section 22 shows that the cabinet secretary is very keen to see the work of the tenant farming commissioner being that of encouraging and bringing forward good practice, so that those who are not observing good practice can be encouraged to do so.
However, many of us fear that some people will not be encouraged. Good landlords will continue to be good landlords, those who want to be good landlords may find the publication of the information and the codes to be useful, and those who begin to realise that they are not good landlords might improve their practice. However, those who do not want to be good landlords—those who, frankly, do not care—will not feel any force on them to change their practices and habits.
There is a carrot in the bill, and I believe—as others do—that there should also be a stick. I accept that the cabinet secretary believes that the current provisions are the way forward. Nonetheless, when the legislation is reviewed in three years’ time, the views of everyone in the sector—and of tenant farmers in particular—must be heard. The Scottish Tenant Farmers Association and other bodies will have to be part of the review. I am grateful to the cabinet secretary for accepting my amendments, which seek to involve the widest group of relevant stakeholders in that review.
If, at the time of the review, it is obvious that the role of the tenant farming commissioner in encouraging better practice has been substantially successful, there will be no harm in having a wider consultation. If the role has not been successful, a wider consultation will be essential. I will therefore move my amendments.
Scottish Labour supports the Scottish Government’s amendments on land agents in view of the concerns that the Rural Affairs, Climate Change and Environment Committee heard about the behaviour of a small minority of such agents. We also support Michael Russell’s amendments on consultation with a wide range of stakeholders in relation to the review.
I am clear that the role of the tenant farming commissioner will bring confidence to tenants and landowners and that, through the development of the commissioner’s functions, there will be improved relations in the small minority of cases in which relations are poor and—I hope—issues will be kept out of the Scottish Land Court. I therefore welcome further clarification of the functions under section 22. The role of the tenant farming commissioner will enable new developments in areas such as rent reviews to be carefully monitored and developed. We support all the amendments in the group.
Some months ago, a land agent asked me why members of the Rural Affairs, Climate Change and Environment Committee were pursuing the introduction of a code of conduct that would cover him and his colleagues. He told me that he did not recognise the claims that were made about the conduct of some in the sector. I shared with him the experience of a tenant farmer constituent of mine, who had just been visited at home by a representative of a leading land agency who told him that he would have to meet a 50 per cent rent increase that was non-negotiable.
The land agent I spoke to responded by naming two firms of land agents for which he thought the person concerned might have worked. I told him that they in fact worked for another company. More important, I drew his attention to the fact that his response proved the point: those who provide agent services might deny that there is an issue, but deep down they know full well that there is.
Let us be clear: the majority of agents will conduct themselves in a respectful and appropriate manner that is conducive to fostering and maintaining good landlord-tenant relationships. However, if there is one thing that unites the agricultural sector, it is the belief that we need a code of conduct.
I welcome the Government’s amendments, and I hope that the proposals that come forward will reflect the lived experience of tenants and landlords and get us to a place where fear of the reputational damage that would be caused to those employing people who provide land agent services and who misbehave will in itself ensure that the code of conduct is adhered to.
I hope that Parliament will also support amendments 5 and 6, in the name of my colleague Michael Russell.
The negative influence of land agents is far wider than the few exceptions that Claudia Beamish mentioned, and a statutory code of practice for land agents would be a very good thing indeed. It would probably answer the concerns of many people around the country. Those concerns were expressed in the evidence that the committee took on the island of Islay, for example, where a tenant farmer told us that he had to raise three incomes: one for his family, a second for the land agent and a third for the landlord.
In such circumstances, the way in which land agents work interferes with the potential profitability of many tenant farmers’ activities. As a whole, land agents’ influence needs statutory control as soon as possible. I am happy to support the amendments.
I will reflect briefly on some of the comments from members. At stage 2, I explained to the committee why I do not believe that it is appropriate at this stage for the tenant farming commissioner, which after all is a new office that is being established by the bill, to have a broad enforcement role, given that that could lead to conflict with other enforcement agencies. However, it is certainly very much understood that many members and stakeholders feel that the tenant farming commissioner might well require additional powers in exercising their functions, and that is why the review is necessary.
On land agents, as members have highlighted, it might be a small minority of land agents who contribute to poor relations in the sector, but those issues have to be dealt with. That is why it is important that the tenant farming commissioner can bring forward recommendations in due course.
Amendment 30 agreed to.
Amendments 5 and 6 moved—[Michael Russell]—and agreed to.
Section 25—Tenant Farming Commissioner: codes of practice
Amendment 31 moved—[Richard Lochhead]—and agreed to.
After section 33
Amendment 32 moved—[Richard Lochhead]—and agreed to.
Section 33A—Recommendations by Tenant Farming Commissioner for modern list of improvements
Amendment 33 moved—[Richard Lochhead]—and agreed to.
Before section 35A
Amendments 34 to 38, 94 and 95 implement the commitment that I gave at stage 2 to amend the bill to include a power for the Scottish ministers to make regulations that will provide for the disclosure of information about persons who have a controlling interest in landowners and tenants and for that information to be published on a public register, which is to be kept by the keeper of the registers of Scotland.
Increasing the transparency of land ownership in Scotland is a key objective of the bill. During the bill’s passage, it became clear that the Parliament and stakeholders felt that we could do more to deliver in the area. Therefore, today I am bringing forward an amendment to introduce a regulation-making power that will enable the Government to develop proposals to address the many practical and legal issues that arise in this policy area. Amendment 34 puts in place a power that will enable the Scottish ministers to make regulations that will require the disclosure of information about persons who have a controlling interest in landowners and tenants, and the publication of that information in a public register, which is to be kept by the keeper.
To ensure that the policy objective of increasing the transparency of land ownership in Scotland can be achieved, the definition of persons who have a controlling interest in a landowner or tenant will be one of the key provisions set out in the regulations. It is clear that we will need to consult widely on the definition and the potential to use definitions in existing legislation. Most notably—[Interruption.]
Most notably, those are the definitions that are used in the legislation on the register of people with significant control of UK companies.
Another key area on which we will have to consult and develop proposals is in relation to which landowners will be required to provide information. The Scottish Government intends that the information will have to be provided where the landowner is a legal entity, such as a company or a Scottish limited partnership, or where an individual is the owner of the land but holds the title to land under a special capacity such as a trustee.
One advantage of Government amendment 34 over section 35A, which was inserted into the bill at stage 2, is that the regulations can require the disclosure of information about persons who have a controlling interest in landowners or tenants in respect of all legal titles in Scotland. Section 35A requires disclosure of information only in relation to land that is registered in the land register, which accounts for only 28 per cent of the landmass of Scotland.
The Government is determined that the Parliament will have full opportunity to scrutinise the regulations effectively. Therefore, amendments 35 to 37 provide that the regulations will be subject to an enhanced form of parliamentary procedure on the first use of the power. Amendment 34 provides that the regulations will be subject to the affirmative procedure, but amendment 35 provides that, on the first use of the power, the Scottish ministers cannot lay the first draft regulations unless the ministers have complied with the consultation requirements that are laid out in amendment 36 and unless the proposed draft regulations and an explanatory document have been laid before the Parliament.
Amendment 36 provides that the proposed draft regulations must be laid in the Scottish Parliament for 60 days and be accompanied by a draft explanatory document. The Scottish ministers must consult the keeper and such other people as they consider appropriate, who must be provided with a copy of the proposed draft regulations and the draft explanatory document. That means that the Parliament will have the opportunity to scrutinise and make recommendations on the proposed draft regulations.
In addition, the public will also be able to make representations to the Scottish ministers on the proposed draft regulations. Only after that consultation has been carried out can the first draft regulations be laid before the Parliament. When the first draft regulations are laid they will be subject to the normal affirmative procedure, giving the Parliament a further opportunity to scrutinise them and take evidence from ministers.
Amendment 38 removes section 35A from the bill. The Government believes that introducing regulations is the best way to ensure the transparency of land ownership that we all want. We must also put on record that section 35A, as it stands, is outwith the legislative competence of the Parliament and it must be removed to ensure that the bill can proceed to royal assent.
Amendment 94 provides that all uses of the proposed regulation-making power in the new section introduced by amendment 34 will be subject to the affirmative procedure. Amendment 95 provides that section 101 of the bill is amended to refer to the new section introduced by amendment 34 and so exempts the Crown from being criminally liable in respect of breaches of the requirements of the regulations made under that new section. That is simply a consequential change.
The Scottish Government believes that these amendments provide the best way forward to deliver transparency of land ownership in Scotland and we recommend them to the Parliament. We urge the Parliament to support the amendments.
We thank Sarah Boyack for lodging her amendments and acknowledge the work that has gone into drafting them. I reiterate that the Scottish Government is committed to increasing the transparency of land ownership in Scotland and will introduce regulations that will provide for the disclosure of information about persons having a controlling interest in land
The Scottish Government will publish a consultation this summer on developing proposals for the regulations. The responses will be helpful to inform the drafting of the regulations, which will need to be laid before Parliament, as required by the enhanced affirmative procedure that will be inserted into the bill by amendments 35, 36 and 37.
Alongside the parliamentary and public consideration of the regulations, and the practical issues highlighted in a letter from the minister, Dr McLeod, to the Rural Affairs, Climate Change and Environment Committee on 3 March, the Government will be working on the practical arrangements to give effect to the regulations. Our intention is that the regulations will be approved by the Parliament by the end of 2017.
I will now address Sarah Boyack’s amendments.
Amendment 34A seeks to provide that ministers must make regulations. Government amendment 34 currently provides that ministers may make such regulations, which is the normal formulation for affirmative regulations. The Scottish Government is clearly on the record as saying that it will make regulations, but in such exceptional circumstances and with such a clear level of support for our proposals we are willing to support amendment 34A.
Amendment 35A would require the Scottish ministers to lay a draft of the first regulations to be made under the new section proposed by amendment 34 within 18 months of the bill receiving royal assent. A duty such as that proposed by amendment 35A could mean that to comply with the duty ministers would have to make regulations that did not provide for the full policy. A further set of draft regulations would then be brought forward at a later date containing the remaining policy detail. It would only be after those second regulations were made that the full scheme could come into force.
Alternatively, if a draft of the first regulations was not laid before the Parliament within the 18-month time limit, amendment 35A could have the effect of not allowing a draft to be brought forward at all after that time. That could prevent the government from making regulations. The Government will make draft regulations for approval by the Parliament. Therefore, amendment 35A is not required and we ask Sarah Boyack not to move it, given the commitments that we have made on timing.
Amendments 34B, 34C, 34D and 34G seek to replace the words “a controlling interest in” with the words “significant control in relation to”. We do not think that the change is necessary. What is meant by a person having a controlling interest in landowners or tenants will be set out in the regulations that will be made under the new section proposed by amendment 34. The definition will be designed to enable the policy objective of increasing the transparency of land ownership in Scotland to be achieved. The definition will not be constrained by the use of the term “controlling interest” in other legislation. We ask that Sarah Boyack does not move the amendments.
Amendment 34E would mean that the matters that the regulations could provide for might include duties associated with the provision of information. The regulation-making power in new subsection 1(a) that is proposed by amendment 34 already refers to the regulations requiring the provision of information, and new subsection (2)(d) already refers to the information that must be provided under the regulations. Therefore, amendment 34E is not required and we ask that Sarah Boyack does not move it.
Amendments 34F and 34H would limit the circumstances in which a person can request that information about them is not published. Although new subsection (2)(h) provides that regulations may set out circumstances in which information does not have to be published—and it provides that the circumstances in which a person may request that information not be published may in particular include those in which publication may result in serious risk of violence or abuse, threat of violence or abuse, or intimidation to a person—it does not require that the regulations provide that that is a circumstance in which a person could request that information not be published. Careful consideration will have to be given to determine whether the regulations should provide for such circumstances. I ask Sarah Boyack not to move amendments 34F and 34H.
Amendment 34I seeks to provide that the regulations under new subsection (1) may provide that the information about controlling interests be available on the internet and searchable by the public. The regulation-making power in new subsection (1) expressly provides a power to make regulations about the publication of information in a public register. The regulation-making power is wide enough to allow regulations to be made about access to the public register. The Government is committed to providing digital public services and we do not consider that these amendments to provide for online access are necessary. I ask Sarah Boyack not to move amendment 34I.
Amendment 34J provides that regulations made under new subsection (1) cannot be used to amend the regulation-making power in that subsection. It would be very difficult to use the regulation-making power in the new subsection to amend itself, as the regulations would have to be within the scope of that power. We do not want there to be any uncertainty as to the validity of the regulations and so do not intend to make regulations amending the regulation-making power. Amendment 34J is not appropriate and is unnecessary, and I ask Sarah Boyack not to move it.
Amendment 37A appears to be designed to clarify that the Scottish ministers can include summaries of responses to the consultation in the explanatory document that has to be laid before the Parliament under amendment 35. There is no limit on the Scottish ministers using the information provided in representations in developing the regulations and reporting in general terms on the representations made, even where that is restricted under the terms of new subsections (2) and (3) proposed by amendment 37. As a result I do not consider that amendment 37A is required and I ask Sarah Boyack not to move it.
Patrick Harvie’s amendments 103 and 104 are the same amendments that he lodged at stage 2. They aim to provide that only legal entities that are incorporated in the European Union could be registered as the proprietor of land in the land register of Scotland. The amendments were debated and voted on at stage 2, when they were rejected by the Rural Affairs, Climate Change and Environment Committee.
Amendments 105 and 106 seek to prevent the registration of title to land in the land register by entities that are incorporated in the British overseas territories, as defined in the British Nationality Act 1981, or in the Crown dependencies of Jersey, Guernsey and the Isle of Man. Amendment 106 sets out that entities that are incorporated or established in the British overseas territories or the Crown dependencies and already have a title registered in the land register must take such steps as are necessary to ensure that they are no longer the registered proprietor five years after the date that amendment 106 comes into force.
Amendments 105 and 106 have the same effect as amendments 103 and 104, but the entities that would be affected would be very different.
At stage 2, the Minister for Environment, Climate Change and Land Reform said that the amendments lodged by Patrick Harvie in relation to EU entities would not achieve the transparency of land ownership that is wanted and that the amendments were outwith the legislative competence of the Scottish Parliament. For the same reasons that were given at stage 2, we consider that amendments 103 and 104 would be outwith the legislative competence of the Scottish Parliament, as they are incompatible with the rules on the free movement of capital in article 63 of the Treaty on the Functioning of the European Union.
Amendments 105 and 106 have a similar effect to amendments 103 and 104, but in relation to different types of legal entities. The difference with amendments 105 and 106 is that they restrict legal entities that are incorporated or otherwise established in British overseas territories and Crown dependencies from registering title to land in the land register. The amendments appear to target the British overseas territories and Crown dependencies, some of which are referred to as secrecy jurisdictions.
As I hope that we have clearly set out today, the Scottish Government is committed to increasing the transparency of land ownership in Scotland. It is clear that there is support across the Parliament for doing that. However, when legislating in this area we have to ensure that the measures that we put in place deliver the transparency that we all want, and that they do that in a way that is within the legislative competence of this Parliament. We understand that the purpose of Patrick Harvie’s amendments is to increase the transparency of land ownership in Scotland, but we are not convinced that they would provide the transparency that is desired. What would prevent a proprietor from re-incorporating in a country that is as untransparent as some of the jurisdictions that are British overseas territories or Crown dependencies?
It has not been demonstrated that all the countries that would be affected by the provision are secrecy jurisdictions, or that all landowners and tenants who are registered in those countries are not transparent about their ownership structures.
In addition to the minister’s concerns about the effectiveness of the amendments in Patrick Harvie’s name, we consider that amendments 105 and 106 are outwith the legislative competence of the Scottish Parliament. As I said, the amendments would not necessarily increase the transparency of land ownership, because they would not necessarily result in land being owned by a legal entity that is registered in a country that requires greater transparency. In addition, the amendments would not prevent legal entities registered in British overseas territories or Crown dependencies from being subsidiaries of legal entities that are registered in other countries.
We are committed to bringing forward, in the next parliamentary session, the regulations that will provide for a public register of controlling interests. Many legal and practical issues must be addressed if we are to bring forward effective and proportionate proposals, one of which is how we ensure that legal entities that own land and are incorporated in secrecy jurisdictions comply with the requirement to provide information. We encourage everyone in the Parliament to work with the Government when we are developing the regulations, to ensure that we can achieve the transparency of land ownership that we all want. I ask Patrick Harvie not to move his amendments 103 to 106.
I move amendment 34.
The amendments in the group go to the heart of our ambitions for the bill. In our committee stage 1 report on the bill, there was cross-party support for a stronger framework of transparency. That is why, at stage 2, the committee supported removing the original wording in the bill and supported Graeme Dey’s amendment 30, while members lodged their own amendments to strengthen the nature and availability of registration information about who owns and controls land.
The amendments in the minister’s name in this group will remove those provisions and insert a much stronger set of proposals. We support them, as far as they go, but I am determined that there should be no loopholes or ways round our intentions on transparency.
Scrutinising the Government amendments has been challenging. The amendments were lodged late last Wednesday and we had less than 24 hours to scrutinise them and decide what amendments we might want to lodge.
The purpose of the amendments in my name is to strengthen the minister’s new proposals and remove any doubts about what the Government says are good intentions on its part. There are observers of the debate who will not understand why the Government wishes to remove a substantive stage 2 amendment that provided for a register of persons with significant control over land—the secret persons who are currently able to hide their identity—in favour of a promise of something better in the future. Some observers have suggested that the purpose of amendment 34 is to kick the matter into the long grass.
I make it clear that I am not attributing that motive to ministers. By supporting the amendments in my name, ministers could put their intentions beyond doubt. My amendments would mean that the Scottish Government “must”, rather than “may”, make regulations. A timescale would also be specified for making the regulations. To oppose the amendments in my name would be to raise the very doubts about the Government’s intentions that the minister has been seeking to dispel.
It is not as if amendment 34A proposes an approach that is without precedent. The Government’s record is littered with examples of legislation that uses exactly the wording that I propose—the most recent are the Carers (Scotland) Act 2016 and the Community Empowerment (Scotland) Act 2015, which the Parliament passed just a few months ago. There are many more such examples.
Members will note that the 2015 act was taken through the Parliament by Aileen McLeod, with a colleague. Of course, all ministers share collective responsibility for what the Scottish Government brings forward, whether they hold particular responsibility or not. If it was good enough to use the word “must” in that act and other acts to bind ministers to a particular timescale, why should it not be good enough in this context?
I hope that the minister will not give us a dancing-on-the-head-of-a-pin argument for why my proposed approach is not appropriate in this instance but is appropriate in every other case. That would not wash. I hope that the minister will reflect on the matter and will regard the amendments in my name as genuinely helpful in delivering an outcome that we and the Government share a desire to deliver.
A couple of the amendments in my name are probing amendments on questions that we were not able to ask at stage 2. However, amendments 34B to 34D are crucial, because they would ensure that the bill provides for registration of persons with “significant control in relation to” land, rather than merely those with “a controlling interest”. Mr Wheelhouse did not address that issue effectively when he spoke to the amendments.
In Scots law, a key definition of a controlling interest is a single person with a shareholding of more than 50 per cent in a company. However, it is not just through ownership that people can determine the use of our land. The term “persons with significant control” is used in United Kingdom law and can refer to a broader range of ways in which control is exerted, such as through having shares, voting rights or an informal right to exercise control or being a trustee. The term already applies to Scotland through the Small Business, Enterprise and Employment Act 2015 and it would be a much better and stronger definition to include in the bill.
I listened with interest to what Paul Wheelhouse said about amendment 34E and will consider any further comments that he makes in summing up.
Amendment 34F seeks to ensure that any exceptions to declaring the identity of someone in the register shall be made only in exceptional and limited circumstances. That is incredibly important as a way of minimising any loopholes.
Amendment 34H implies that there might be quite wide exceptions. I am keen to tease out exactly how those exceptions might be put into practice. While I accept that we can perhaps come to that in detail when we make regulations, I wanted to get a response from ministers on the record today. I particularly wanted to clarify that the risk of domestic violence is an example of an exceptional case.
Amendment 34I would explicitly recognise that the new register may be in electronic form and capable of being searched online. That is already possible for the crofting register that the keeper holds, which sets a good example of what we would like. Although the minister said that the provisions in the bill will be wide enough to allow access, I would like those provisions to be firmer.
The intention of amendment 34J is to prevent amendment of the regulations that would affect their essential purpose. I lodged the amendment to try to get ministers to say more firmly that they would not seek to water down the initial purpose of the regulations.
I welcome amendment 35, but the purpose of my amendment 35A is to set a timescale for the Government to follow. I have suggested 18 months from the granting of royal assent, which is reasonable and would allow ample time for consultation to take place. It is important that we do not lose the momentum that has built up. There has been extensive consultation on the bill, the work of the land reform review group and hundreds of submissions. Are ministers seriously telling us that they will not be ready within 18 months to get regulations through Parliament?
My amendment 37A seeks to tease out what the ministers intend by amendment 37, which is not totally clear. In the 24 hours that we had to scrutinise amendment 37, we thought that the wording was unusual and appeared to be a way of enabling those who make representations against the register to remain secret. That is utterly the wrong way to go about things and implies that the Scottish Government would make a disclosure to a committee of Parliament but would not make the information available publicly.
We seek clarity on exactly what ministers intend. Amendment 37A is primarily a probing amendment, as I would like to hear more when the minister sums up. If we will return to the matter in the future, that is fair enough, but amendment 37 does not provide a helpful level of clarity.
I will comment briefly on Patrick Harvie’s amendments. At stage 2, we supported the suggestion of a requirement for those who seek ownership of land in Scotland to be registered EU entities. That would not prevent someone who does not live in the EU from owning land, but it would set expectations of tax transparency. Ministers were at great pains to tell us at stage 2 that that would not be legally possible or competent, and that was repeated today. However, at several points during the passage of the bill, the committee discussed examples in relation to ECHR issues of where ministers have, on reflection, changed their views after extensive consultation with stakeholders and representations from MSPs. We are disappointed that ministers have not sought a way to deliver the ambitions that are set out in Patrick Harvie’s amendments.
We can think of many examples since the Parliament’s inception in which political will and creative thinking have delivered, although at first or even second glance there were barriers. Determination found ways to overcome obstacles.
Because we will come back to tax transparency, we think that the proposed approach is the right thing to do. It speaks to the wider concerns among the public about fairness and transparency, and we believe that the amendments are in the public interest, so they should be supported. If the Scottish National Party Government does not support them, I am convinced that we will come back to them in the future.
I move amendment 34A.
The ministers and Sarah Boyack have repeatedly used the word “transparency” during the debate on the group of amendments. In the stage 2 discussion, it seemed that it was agreed across the political spectrum that we were fundamentally trying to achieve transparency.
There are many ways of achieving transparency. The provision in the bill that sets a date for completing the land register is a step in the direction of transparency. I proposed that early when we were dealing with the Land Registration etc (Scotland) Bill—better late than never. I welcome the fact that we are putting that into law in the closing weeks of this parliamentary session.
I also proposed addressing the questions of beneficial ownership at the beginning of this session when we were dealing with the Land Registration etc (Scotland) Bill. I am glad that we are doing something in that direction in the closing weeks of this session—again, better late than never. I very much welcome the work that Graeme Dey did at stage 2 and during the stage 1 discussions on bringing forward proposals in that direction. His formulation of beneficial ownership has an advantage over the Government’s formulation, specifically because it is about using the land register rather than another register. If the Government’s amendment 34 is passed to change that approach, it should be passed with Sarah Boyack’s amendments. If I heard right, the Government said that it intends to support amendment 34A. I welcome that, but other amendments that Sarah Boyack lodged would add value to the Government’s approach.
The need to recognise that getting our own house in order is not enough is consistent with the other approaches of completing the land register and taking steps on beneficial ownership. Others are using mechanisms such as offshore territories to avoid the level of transparency that we are setting into our law. At stage 2, I offered the option of an EU proprietorship condition with a five-year period for retrospective application. I have brought that back to the chamber for discussion with an alternative that is based on British overseas territories and Crown dependencies.
I reject the argument that such an approach is a barrier to the free movement of capital, even for those for whom the ideological attachment to the free movement of capital is more important than our agreement on the objective of transparency. It is entirely reasonable for an organisation to set up an entity that is registered in the EU, or preferably in Scotland, if it wishes to own and sell land. In fact, representatives of landowners who responded to the consultation said that they did not see an EU proprietorship requirement as a serious barrier to an organisation that has a committed interest in owning land in Scotland for legitimate purposes.
We all know that those loopholes are being exploited. Just this week, my colleague Andy Wightman, who has been working with Common Space and The National, has exposed the activities of Buccleuch Estates, with its incorporated vehicle in the Cayman Islands. There is avoidance of the level of transparency to which we should hold landowners in Scotland. That is simply not acceptable, and I welcome the Labour Party’s support. I think that there are also many in the SNP who want what is proposed to be done. The idea is not new. It was strongly supported in the consultation on the bill and by the land reform review group, and we should press ahead with it.
I will press my amendments when the time comes. I hope that many SNP members recognise the strong expectation from their party colleagues around the country who want such loopholes to be closed and who want landowners to be held to the highest standards of transparency.
As we have heard, the Government amendments will replace those that I lodged at stage 2. I accepted then that my amendments might be flawed and I recognise the concerns that have been raised about their being outwith the Parliament’s competence. No responsible parliamentarian should be tied to provisions or amendments that, if they featured in the finished bill, could lead to it being subject to challenge. Just as important is the fact that, as Sarah Boyack said, the Government amendments form a stronger set of proposals.
The Government amendments provide a framework for delivering competent and appropriate transparency. They should be viewed alongside the letter that the minister sent some weeks ago to the RACCE Committee. No one could seriously claim that they represent an attempt to kick the issue into the long grass. That said, I welcome Sarah Boyack’s amendment 34A, to replace the word “may” with the word “must”. That will strengthen the messaging on the delivery of transparency.
As far as I can see, amendments 103 and 104 would not deliver the transparency that we all want, and they could quite easily be circumvented. The legal opinion that I have heard from a number of sources—it seems to be uncontested legal opinion—suggests that those amendments fall outwith the Parliament’s legislative competence.
We have come a long way on the road towards delivering transparency. I give the minister due credit for the leadership that she has provided on that.
The Scottish Conservatives have no difficulties whatsoever, and never have had difficulties, in bringing greater openness and transparency to land ownership. However, I am really concerned about the lack of time, which other members have mentioned, that we have had to digest and look at the full implications of the group of amendments. That bothers me. That lack of time creates the feeling that we are somehow legislating on the hoof.
Unlike Patrick Harvie’s amendments, the Scottish Government’s amendments appear at least to be within our competence. The important thing is to ensure that what we put in place is workable and doable, that it makes sense, that people understand it and that it delivers tangible benefits on ownership transparency. We will support amendments 34 and 34A, but we will not support amendment 35A, because it is important to get the bill right.
Patrick Harvie said that he thought that some back-bench MSPs supported the concept of transparency. All the back-bench MSPs I have spoken to support such transparency completely. The question is about not whether we support transparency but how we achieve it. We will do that by backing the minister’s amendments.
No—I would like to finish, Mr Harvie.
Graeme Dey played an important role in focusing the debate at stage 2. The minister came forward with practical solutions, which we need. If we put into the bill any solution that is not legislatively competent, we will wreck the entire bill.
I am 100 per cent committed to transparency. I want the register up and running as soon as possible, as everyone else who has spoken does. However, to make the progress that we must make, we must proceed in a way that is more clever than just running at this and assuming that wishes will produce good legislation. It is work that produces good legislation.
I rise as the convener of the Delegated Powers and Law Reform Committee to pick up on one issue. We very much welcome amendments 34 to 37. We recognise that they will introduce an enhanced form of affirmative procedure for the first introduction of regulations, which the committee was extremely concerned would be achieved. However, we note that despite what the minister has said, the regulations remain as wide for any second and subsequent opportunity when they might be used, although the enhanced affirmative procedure will not be required. That will make perfectly good sense if the grand sweep is achieved the first time and subsequent amendments are technical issues at the edges.
However, there is a procedural point that is of concern to the committee: if the regulations were to be completely rewritten—I do not think that the Government is proposing to do that—the new regulations would simply come under affirmative procedure, which is not the right way to proceed. It would not be the right approach in any other circumstance. The committee will be grateful if the minister can confirm that there is no intention to use the wide scope of the regulations for any subsequent amendments, and that there will simply be some tidying up, as will inevitably be required. The committee would like that to be put on the record.
I am sure that SNP members across the country who have been following the debate will support our Government’s competent, sensible and legally competent approach.
It is very concerning to me that it is suggested that the lengthy debates and discussions that have taken place during the passage of the bill, which have involved the members of my Rural Affairs, Climate Change and Environment Committee, Government ministers and officials, should be put aside for a proposal that has been brought in at the end of the process and which does not meet legal competence. Parliament is being asked to pass amendments 103 to 106 without having had sight of any legal advice as to their competence. Why not have such debates in the normal fashion of the Parliament—that is, during the time in which we are talking about the bill?
It is very important that we are able to hold to account people who have land. That is the practical aim of the bill. I hope that, eventually, when the land register is map-based, we will be able to tax those people. The aim of holding landowners to account is the heart of the matter—it is encapsulated in the word “transparency”, and it is what the Government’s proposals will do.
Amendment 34A seeks to provide that ministers “must” make regulations under Government amendment 34. The bill currently provides that ministers “may” make such regulations; that is the normal formulation in respect of affirmative regulations. The Scottish Government is clearly on the record as saying that it will make regulations, but in such exceptional circumstances, and with such a clear level of support for our proposals, we are willing to support amendment 34A.
The wide regulation-making powers that we are taking will be able to pick up any of the proposals in the amendments in Sarah Boyack’s name, if they are supported in consultation; we are keen to take all practical steps to give careful consideration to those proposals. Sarah Boyack raised the point about the 18-months timescale and asked why we are being careful about the timing. Extensive consultation is required around the regulations and we want to respect Parliament’s right to accept the timing.
Absolutely. The Government is keen to give assurances that the work will take place. We are being careful about timing because much that is relevant is outwith our control and is in the hands of parliamentary committees. We do not want to prejudge the timing of committees’ work and the outcome of the consultation. However, the Government is sincere about taking forward the work, which is why we have agreed to support amendment 34A to substitute “must” for “may” in the bill. That demonstrates our commitment to carrying out the work. I hope that Labour members take comfort from that.
Registers of Scotland is progressing plans for Scotland’s land information system—ScotLIS—which will contain comprehensive information about any piece of land or property in Scotland. The Government and Registers of Scotland are taking significant steps to improve the transparency and availability of data about land ownership.
Michael Russell made excellent points about the competence of any bill—he made them so powerfully that I do not need to repeat them. The Government agrees with him that all legislation that passes through Parliament is competent and takes account of the ECHR.
On behalf of the Delegated Powers and Law Reform Committee, Nigel Don made reasonable points about use of the powers. As he requested, I confirm that we have no intention of rewriting the provisions. We will ensure that we remain within the spirit and the letter of the provisions as regards use of the super-affirmative procedure.
In relation to the wording of subsection (2)(h) of the new section that amendment 34 seeks to insert, I reassure Sarah Boyack that that would cover an exemption in circumstances in which publication would result in a person being at risk of domestic abuse.
The wording of amendment 37 is based on wording in the Public Services Reform (Scotland) Act 2010, which was passed by Parliament; there is no variation from that wording.
As far as Mr Dey’s amendments are concerned, as he quite correctly said, we were concerned about their provisions potentially not being within Parliament’s legislative competence. There are a number of reasons for that. Appropriate protections would not be provided for individuals’ rights to privacy under article 8 of the ECHR, and the proprietor or the keeper would not be required to remove a person’s name from the title sheet when that person had ceased to be a person with significant control. I am sure that Mr Dey is aware of the details, so we do not need to go through them now.
With regard to Patrick Harvie’s reference to Andy Wightman’s recent blog and the article in The National about the company structures that lie behind ownership of Buccleuch Estates, it is not appropriate for the Government to comment on the individual circumstances of landowners or the tax affairs of individuals. The Government believes that Patrick Harvie’s proposals would not work. There is nothing in them that would prevent a company that owns land in Scotland from being wholly owned by another company registered in a British overseas territory or anywhere else in the world that may be termed a tax haven or a secrecy jurisdiction. All that Patrick Harvie’s amendments would serve to do would be to put another company in the company chain, which would add to the complexity of the ownership chain. We stress that there are other countries that can be just as secretive, if not more so, that those that are the subject of Patrick Harvie’s amendments.
I say with respect to Claudia Beamish that we have made it clear throughout today’s proceedings that we very much believe in transparency about land ownership in Scotland and are doing everything that we can to bring it about. However, as Michael Russell rightly said—and I reiterate—we must ensure that legislation that the Scottish Parliament enacts is legally competent and can be sustained through the courts if it is challenged.
The measures that Claudia Beamish rightly says were in the land reform review group’s report—I remember reading them—are not measures whose inclusion in the bill we can support, on the basis of our understanding of their legal competence.
We need a solution that will deliver transparency in land ownership and which will apply to all landowners, regardless of where they are incorporated. The ability of Parliament to legislate on certain matters is limited; it is not within Parliament’s competence to legislate on matters that are reserved, which include company law and measures aimed at reducing avoidance of non-devolved taxes including inheritance tax and corporation tax. In making legislation, we must also take into account our obligations under European law. As we have said, the Scottish Government considers that the provisions of Patrick Harvie’s amendments are outwith Parliament’s legislative competence.
Above all, it is crucial that we introduce measures to increase transparency in land ownership that are proportionate, effective and within Parliament’s legislative competence. What Parliament can and will do is legislate on land ownership in Scotland. As Alex Cobham, director of research with the Tax Justice Network, said in The National,
“The Scottish Government ... can take its own steps to ensure that no land is owned without public record of the ultimate beneficial ownership—regardless of which jurisdiction or structure is used.”
The regulation-making power that we have proposed will allow us to do exactly that—to make regulations that will require disclosure of information about persons who have a controlling interest in land and tenants, with that information being published by the keeper in a public register. Those regulations can apply to all landowners in Scotland, regardless of where they are incorporated.
I will bring in Mr Harvie in a minute.
Mr Harvie’s amendments, on the other hand, seek to limit ownership to persons who are registered in certain jurisdictions. In our view, it would be easy for those restrictions to be circumvented.
The Scottish Government is committed to making land ownership in Scotland transparent, and we hope that all members are supportive of that goal and will work with ministers, the Scottish Government and the people of Scotland to help us to achieve greater transparency in land ownership in Scotland.
The minister seems to be very satisfied that the bill as it stands will achieve the level of transparency that he is aiming for. Can he assure us that an entity such as Pentland Limited that is registered in one of the secrecy jurisdictions will be held to the high standard of transparency that we are not capable of achieving today?
As we have said and as Mr Harvie will understand, such matters will potentially come under a lot of scrutiny through the process of developing regulations, which is why we are keen to take time and not set a timetable for the work. We want to work with the parliamentary process so that Parliament has the opportunity to scrutinise the regulations as they come forward, and ensure that they are robust enough to deliver the kind of transparency that Mr Harvie wants.
Nevertheless, I return to the point that whatever Parliament does has to be legally competent and within its competence. We cannot introduce in a bill measures that would allow it to be shot down by those who oppose it.
With brief reference to the other amendments in the group, both in my name and in the names of others, I note that Mike Russell said that work will produce good legislation. We all agree with that; indeed, that is our point in setting a timetable for the next Scottish Government. It is crucial that the process is planned and worked towards and is carried out effectively. To be frank, it was the Scottish Government that set the timetable for the bill; we need a better timetable for the next one, and we need a commitment that it will be Parliament, not the Government, that will do it. Again, that is the point of amendment 35A. I should also say that, given that no one has effectively or adequately addressed my concerns in amendments 34B to 34D and 34F, I will move them, but I will not move a couple of the other amendments.
The minister asked why we could not have debated tax transparency earlier. It was debated earlier; it is in our stage 1 report, which ministers did not reply to until after the stage 1 debate. The issue has been out there for months—indeed, for years. The land reform review group made the point, as did our stage 1 report—it is not new.
Where is the Scottish Government’s alternative? Today’s response is disappointing. This is a missed opportunity, and it is unfinished business that the next Parliament will have to come back to.
Amendment 34A agreed to.
Amendment 34B moved—[Sarah Boyack].
The result of the division is: For 38, Against 74, Abstentions 0.
Amendment 34G disagreed to.
Amendments 34H, 34I and 34J not moved.
Amendment 34, as amended, agreed to.
Amendment 35 moved—[Aileen McLeod].
Amendment 35A moved—[Sarah Boyack].
The question is, that amendment 35A be agreed to. Are we agreed?
There will be a division.
The result of the division is: For 37, Against 75, Abstentions 0.
Amendment 35A disagreed to.
Amendment 35 agreed to.
Amendment 37 moved—[Aileen McLeod].
Amendment 37A not moved.
Amendment 37 agreed to.
Section 35A—Land Register of Scotland: information to be included in title sheet
Amendment 38 moved—[Aileen McLeod]—and agreed to.
After section 35A
Amendment 103 moved—[Patrick Harvie].
The question is, that amendment 103 be agreed to. Are we agreed?
There will be a division.
The result of the division is: For 33, Against 80, Abstentions 0.
Amendment 105 disagreed to.
Amendment 106 not moved.
Section 36—Power of Keeper to request information relating to proprietors of land etc
That brings us to group 6. Amendment 39, in the name of the minister, is grouped with amendments 40 to 52.
These amendments are aimed at increasing the availability of information about land ownership in Scotland.
In its report, the land reform review group stated that a lack of consistently accurate information about patterns of land ownership was an issue that hindered it in carrying out its review. To gain an understanding of how land ownership affects patterns of land use in Scotland, and the effect of Government polices connected to land, it is important to have further information on land ownership. For example, to understand the effectiveness of Scottish Government policy on community ownership, it is essential that accurate information about the amount of land that is owned by community groups is available.
Registers of Scotland is often asked to provide information about how much land is owned by a certain category of owner. That information cannot always be retrieved as it is not captured as part of the land registration process.
When the bill was introduced, section 36 provided a power for regulations to be made, enabling the keeper of the registers of Scotland to request information relating to proprietors, including information relating to the category of the owner or tenant and information relating to individuals having a controlling interest in owners or tenants. In its report on the bill at stage 1, the Rural Affairs, Climate Change and Environment Committee recommended that section 36 should be amended so that the keeper could require that information and not just request it.
Amendments 39 to 49 amend the regulation-making power that will be inserted into section 48A of the Land Registration etc (Scotland) Act 2012, so that regulations can be made enabling the keeper to request and require information about the category of person or body that certain owners or tenants of land fall into.
We have already discussed the amendments that the Government has brought forward regarding information about controlling interests in owners and tenants of land. As a result of those amendments, it is no longer necessary for the regulation-making power in inserted section 48A(1) to be wide enough to allow regulations to be made requesting information about individuals having controlling interests in proprietors. Amendments 40 and 46 reflect that.
It is intended that the regulations under section 48A will enable the keeper to require the provision of information about categories of owner or tenant as part of the land register application form, and we consider that providing that information should be relatively straightforward. We anticipate that the land register application form will provide a list of potential categories and that the applicant would be required to select any that are relevant to the owner or tenant.
The bill already provides that regulations that are made under inserted section 48A(1) will be subject to the affirmative procedure.
Amendment 52 provides that the Crown cannot be criminally liable for any breaches of the requirements that are imposed by regulations that are made under section 48A(1).
In considering this policy, the Government came to the view that, in order to increase the number of owners or tenants about whom the information was provided, it was important that the keeper be given additional powers to add information about the category of the owner or tenant to the land register on her own initiative, in certain circumstances. Therefore, amendment 50 inserts section 48B into the 2012 act. That contains a power allowing the Scottish ministers to make regulations enabling the keeper to do so.
It is intended that the keeper will be able to add information about the category of the owner or tenant only when that information is already apparent from the land register. For example, if one of the categories of landowner is a Scottish local authority, it should be evident from the name of the proprietor that is entered in the title sheet whether the proprietor is, or is not, a Scottish local authority. It is not intended that adding that information to the land register should have an effect on a person’s legal title.
Amendment 51 provides that regulations that are made under inserted section 48B(1) will be subject to the affirmative procedure.
The Government intends to consult before making regulations under inserted sections 48A and 48B.
I urge the Parliament to support these amendments, and I move amendment 39.
The minister’s amendments will help to clarify the position on this important part of the bill, which concerns the availability of information on land ownership. With regard to land reform, it is important that there is a category for information on community land ownership. The additional powers that allow the keeper to act on her own initiative are also important.
We do not intend to oppose these amendments, but I want to repeat and place on record my concerns about significant provisions being introduced to legislation by way of regulation, with limited scrutiny. That is not the right way to go about making robust legislation, and I hope that what is being done does not end up being open to challenge. I know that the Delegated Powers and Law Reform Committee has concerns, too.