The next item of business is continuation of stage 3 proceedings on the Land Reform (Scotland) Bill.
I remind members that, in dealing with the amendments, they should have the bill as amended at stage 2, the marshalled list, the supplement to the marshalled list and the groupings. As with this morning, the division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons as soon as possible after I call the group.
Members should now refer to the marshalled list of amendments.
Section 37—Guidance on engaging communities in decisions relating to land
An issue that the Rural Affairs, Climate Change and Environment Committee raised in our consultation on the Scottish Government’s draft proposals was the need to take evidence from communities about the effectiveness of the guidance that will sit alongside the legislation. A clear lesson from the Land Reform (Scotland) Act 2003 was that the guidance did not always assist communities in the way in which it was intended to do, because of how it was drafted and interpreted.
My aim in lodging amendments 57 and 58 was to ensure that the need to learn lessons from the implementation of this next stage of the land reform story is captured effectively and that ministers are able to consider the issue and change the guidance as they see fit, to improve its success.
As a result of amendments that I lodged to part 4 of the bill at stage 2, the Scottish ministers will be required to prepare and lay before the Parliament a report that assesses the extent to which section 37 guidance is being followed, no later than three years after the date on which the first part 4 guidance is issued. Subsequent reports are to be laid no later than three years after the date of the previous report. The committee accepted my amendments in that regard, and the minister supported them on the basis that the Scottish Government would welcome further discussion on how to strengthen the provisions and on the most appropriate review period.
Following further discussion with the minister, I am delighted that amendment 57 will strengthen the purpose of the report, so that, rather than simply assessing the extent to which part 4 guidance is being followed, it will assess the effectiveness of the guidance and set out the Scottish ministers’ views on further steps that they think should be taken to improve the effectiveness of the guidance. Amendment 58 will change the review period to within five years, rather than three, for all subsequent reports, to align with parliamentary terms. However, the first report must still be laid within three years of the date on which the first part 4 guidance is issued.
I am pleased that we have been able to have constructive discussions and I hope that members will be keen to support amendments 57 and 58, which will enable us to achieve momentum and make progress in the next parliamentary session.
I move amendment 57.
I warmly support amendments 57 and 58 in the name of Sarah Boyack. Part 4 is one of the shortest parts of the bill and in my view should have benefited from the much stronger language that is used in the policy memorandum. In relation to part 4, the question is what happens if there is not engagement with communities on estates, whether estates are owned by private owners or the public sector. There is no answer to that. The intention of part 4 is to encourage better practice. I accept that laudable intention, but what happens if better practice does not kick in in every part of the country? What happens if some landowners do not wish to engage with the people who live on their estates?
Many landowners are drawing on substantial sums of public money, so cross-compliance becomes an issue. Let me explain what that means, for members who are not involved in rural affairs. Cross-compliance means that there is a sanction upon those who receive public funds of one sort or another if they do not pursue the wider public good objectives—not just those objectives for which the money is paid. I wanted to see in this bill some suggestion that there would be sanctions.
Clearly, there needs to be a reasonable period for the Government to prove that the approach will work. Sarah Boyack is right to strengthen the review that takes place—I am glad that the Government has been positive about that—so that if, after the review, it is clear that there are still those, in the private or the public sector, who are not consulting and who have no intention to consult, sanctions will be applied. We will strengthen that part of the bill to ensure that nobody in Scotland lives on an estate or in an area where what they wish, what the community wishes, or what their views are about that area can be set at nought by a private or a public landowner.
I hope that the approach will work, but if it does not, the review needs to be vigorous and needs to be conducted in such a way that we move on to ensure that the public policy objectives of the bill are finally fulfilled.
We welcomed Sarah Boyack’s amendments at stage 2, which created a requirement to report on the extent to which part 4 guidance is being followed.
We support amendment 57, which strengthens the reporting requirements, and amendment 58, which creates, in our view, a review period that is better suited to the work that is required for the stronger review that amendment 57 introduces.
I welcome the comments from members across the chamber. I think that we all broadly agree on the importance of the amendments. I press amendment 57, and I hope to press amendment 58 as well.
Amendment 57 agreed to.
Amendment 58 moved—[Sarah Boyack]—and agreed to.
Amendment 59 moved—[Paul Wheelhouse]—and agreed to.
Section 43—Provisions supplementary to section 42
Amendments 60, 96 and 97 adjust the requirements on community bodies that exercise the right to buy under the Land Reform (Scotland) Bill and the Land Reform (Scotland) Act 2003 to notify the Scottish ministers of modifications to their memorandums, articles of association, constitution or registered rules.
Currently, section 43(1) requires community bodies to have the written consent of the Scottish ministers before making any such changes. Those provisions duplicated provisions in the Land Reform (Scotland) Act 2003 and were made to ensure that, in changing its core governing documents, a part 5 community body did not inadvertently cease to be a part 5 community body.
On reflection, we believe that the requirements under section 43(1) are overly bureaucratic. Many changes that are made to core documents by community bodies may be simple or minor matters that are unrelated to the requirements in section 42, such as changes to how notices are to be communicated to members or to the remit of office-holders. There is no need for ministers to know about such changes in advance, and it is therefore disproportionate to require community bodies to seek the Scottish ministers’ permission for them. The effect of the amendments will be to require community bodies only to notify the Scottish ministers as soon as possible after the changes, rather than to seek permission in advance.
Amendments 96 and 97 effect corresponding changes to the right-to-buy provisions in the Land Reform (Scotland) Act 2003, including changes to the crofting community right-to-buy provisions.
Sections 55(3)(b) and (c) deal with scenarios in which the valuation of the land, or a section 57 determination on an application to buy a tenant’s interest, is either completed late or is appealed. They also deal with how those scenarios impact on the date that the consideration under part 5 is to be paid by a community body.
Amendments 68, 69 and 70 are minor and technical amendments that correct drafting omissions in section 55, in order to take account of the various permutations in the timetable for valuation.
Following stage 2, amendment 71 is a missed consequential amendment to section 58(4). The reference to subsection (2)(b)(i) is wrong, as that provision is now subsection (2)(a)(zi). The amendment corrects that.
I move amendment 60.
Amendment 60 agreed to.
Section 47—Right to buy: Ministers’ decision on application
Amendment 7 seeks to avoid unintended consequences in public or community purchases of land. I hope that I will not want press the amendment to a vote, as I am seeking assurances and reassurance from ministers that there will be sufficient protection in the bill to ensure that unintended consequences cannot happen.
This crucial issue was first raised with me by a group of farmers in my very first meeting in my constituency on the bill, in Kilmartin glen. They pointed out that they thought that it was distinctly possible under the bill that a community could seek to purchase one part—even a small part—of a farm or agricultural holding because it had some objection to the way that it was managed or to the choices that the person who worked it made. For example, some people object to oilseed rape growing next to their house. In those circumstances, the community might say that it will purchase the field and ensure that that never happens again. However, that field might be a vital part of an economic unit and without it the economic unit might not be viable. Therefore, there needs to be a reassurance such things cannot happen.
At stage 2, I moved a similar amendment, which was perhaps not as well crafted but which also sought that reassurance. I hope that amendment 7 improves on it. The ministers gave that reassurance, but I am now looking to be straight about the matter.
I draw attention to the fact that Paul Wheelhouse has not been through the detailed process. I am very sorry that the Minister for Environment, Climate Change and Land Reform, who has done an absolutely wonderful job on the bill, is not here—that is a great pity. However, I hope that Mr Wheelhouse will be able to give me a reassurance in concrete terms—maybe that is not the best phrase—so that those who are in such a position will know what the situation is.
Repetitive applications are another issue that I moved an amendment about at stage 2, and I know that Alex Fergusson will address it in speaking to one of his amendments. No council can call for a school closure twice in a five-year period, and there was an argument that maybe the same should apply to community purchases. However, I am persuaded that that would not be sensible. Although the school closure process is not simple, it is fairly clear in statutory terms, and the process of purchasing land is not nearly as clear or, frankly, as simple. It is not uncommon for communities to find themselves having to withdraw an initial application in order to come back with a second application that has more detail or which relates to a slightly different parcel of ground. If there was a bar so that there could be no second approach in three or five years, that would unfairly disadvantage those who were in that position. I understand that ministers have the power, and will continue to have the power, to ensure that there are no vexatious applications. The amendment’s purpose was to prevent vexatious applications.
We are beginning to get into great detail on land purchase and agricultural tenure. Those are complicated matters, but the simple thing that should guide us is the principle of fairness. There should be fairness in the process. In the part of the process in question, that fairness is about ensuring that those who have viable agricultural units are not unfairly disadvantaged by the bill, and I hope that the minister will be able to give the reassurance that I seek.
I move amendment 7.
My amendments 107 and 109 would simply provide an improved alternative to Mike Russell’s amendments 7 and 9.
Whereas Mike Russell’s amendments apply only where the land in question “includes agricultural land”, my amendments would bring into the equation other land-based businesses, such as forestry and tourism, as well as other rural-related activities. As a result ministers could not consent to an application to buy land under section 45 if the purchase would have a detrimental impact on the business of the landowner or on the productive management of the land.
Mike Russell—rightly—seeks to protect agricultural and farming businesses. I seek to apply the same principle to a slightly wider sector of rural economic activity. I live in hope that the minister will see the sense in what I say and encourage Mike Russell to withdraw amendment 7 and to not move amendment 9 in favour of my amendments 107 and 109, although I am possibly being slightly optimistic.
Amendment 108, as Mike Russell highlighted, seeks to ensure that any owner or tenant of land cannot be constantly subjected to applications to purchase. Being the owner or tenant of any land that is subject to an application to purchase, particularly when that is against the seller’s will, can only be a fairly stressful experience, and it is important to protect them from repeated applications. Therefore, amendment 108 proposes to make it impossible for an application to be made within three years of a previous application. That would reduce any stress involved; perhaps more important, it would allow the business involved to plan ahead with at least some certainty for that three-year period.
It is particularly important to protect small family farms—whether owned or tenanted—from repeated applications.
Amendment 108 would also encourage the best possible practice in communities, because it would encourage only the best possible applications to be made.
We have no difficulties with the other amendments in the group, apart from those in the name of Dave Thompson, which simply weaken and dilute key tests that communities will have to pass in order to make an application to buy. I do not favour any dilution of those tests, and we will not support those amendments.
In the debate later on this afternoon, I will comment on the comments that Mr Fergusson made about the ECHR. He quoted me out of context, and I hope that he will have a look at the matter before the debate, so that he can answer appropriately.
Among the conditions that are set out in part 5 are a number of sustainable development conditions in section 47(2) that Scottish ministers have to be satisfied are met before they can exercise their power to consent to an application to buy land under part 5.
At stage 2, I lodged an amendment to one of the sustainable development conditions in section 47(2). That resulted in discussions over the requirement that Scottish ministers be satisfied that not consenting to an application would result in “significant harm” to the community, which is a high test to meet. There was general support for the principle behind my amendment and agreement from the minister to consider the issue further ahead of stage 3.
Amendments 8, 10 and 11 in my name seek to provide some additional flexibility for ministers, while providing the necessary balance between the interests of communities and those of landowners. The amendments amend the test of
“significant harm to the community” in section 47(2)(d) to one of only “harm to the community”. That does not mean that ministers would be required to consent to an application if they were satisfied that not granting consent would be likely to result in any harm to the community, even if it was just negligible harm. Ministers would still need to be satisfied that the other conditions in part 5 were met, and they would still be required to act in a way that was compatible with the ECHR rights of the landowner or tenant. In considering that, ministers would still have to look at the degree of harm likely to be caused to the community by not consenting to the application.
In considering whether any interference with the landowner’s rights under article 1 of protocol 1 of the ECHR was proportionate, and whether there was a fair balance between the public interest and the rights of the individual landowner or tenant, ministers would need to consider the degree of harm likely to be caused by not consenting to an application.
I am confident that my amendments will provide ministers with a marginal increase in flexibility when considering the degree of harm that likely to be caused by not consenting to an application under part 5, while safeguarding the rights of individual landowners and tenants.
I will speak first to Mr Russell’s amendments 7 and 9 and Mr Fergusson’s amendments 107 and 109 together. Unfortunately, if accepted, those amendments could in some instances create a significant restriction to the right to buy for our communities that we do not consider appropriate.
Any application to buy land under part 5, including an application to buy agricultural land, can only be consented to by ministers if all the sustainable development conditions are met and the procedural requirements are complied with. That means that the transfer must be in the public interest; that the transfer of land is likely to result in significant benefit to the community; that it is the only practicable or the most practicable way of achieving significant benefit for the community; and that not granting the transfer will likely result in harm to the community. In addition, ministers can only consent to an application under part 5 if doing so would not be incompatible with any person’s rights under A1P1 of the ECHR.
Those are strong tests and I do not believe that certain sorts of land, as proposed by Mr Russell and Mr Fergusson, should be excluded from part 5 applications. We would like to remind Parliament that the purpose of part 5 is to allow communities to apply to buy land for the purposes of sustainable development. If we start to exclude certain sorts of land, whether agricultural land or productive land, we will severely restrict not only the sort of land that communities can apply to buy but communities’ sustainable development opportunities.
I will give an example of the difficulties that the amendments could cause. If one of the reasons for a part 5 right-to-buy application was to buy agricultural land to provide opportunities for tenant farming, the effect of the amendments would be to prevent such a transfer from taking place.
However, I recognise the points that Mike Russell and others have made on the need for reassurance. We certainly want to reassure Mr Russell and others who are concerned about the matter that we will take into account the impact on the productive use of land in considering an application to buy land. Indeed, it is important to reflect that this is not just a rural issue—the right to buy will apply equally to urban areas, so the importance of existing urban land use and its impact on urban businesses will also, in certain cases, be relevant considerations. I reassure members that we will look at the impact on business and at whether the wider public interest is being served in approving an application.
A Scottish Government stage 2 amendment inserted subsection (8A) into section 47, requiring ministers, in determining whether the
“transfer of land is in the public interest”,
to take into account any information provided by landowners or tenants on how a part 5 application would affect their interests. It also requires ministers to
“consider the likely effect” on land use in Scotland
“of granting (or not granting) consent to the transfer”.
In our view, that addresses concerns about agricultural land and other sorts of productive land that were raised by some stakeholders and indeed by members today.
For the record, I note that the Scottish Government is committed to supporting agriculture and other land-based industries where they make a positive contribution to the wealth and wellbeing of society. We urge members to resist amendments 7, 9, 107 and 109.
We also resist Mr Fergusson’s amendment 108. It is similar to a stage 2 amendment lodged by Michael Russell, except that amendment 108 refers to three years, not five. At stage 2, Mr Russell kindly withdrew his amendment after Dr McLeod gave an assurance to the committee that part 5 applications would be closely monitored by the Scottish Government to make sure that the part 5 right-to-buy process was not being abused or misused and that malpractice, either by the community or by the landowner, was not taking place. We give the same assurance to Parliament today.
However, I must point out that there seems to be no evidence of existing rights to buy leading to vexatious applications or to the system being abused. We cannot foresee what circumstances may arise in the future, of course, and there may be occasions when it would be appropriate for an application to be made under part 5 where one had been made in the previous three years. For instance, there may be cases where having to wait a further three years could lead to significant harm to communities.
Each application will be considered on its merits and ministers will not be able to consent to an application unless the sustainable development conditions have been met and the procedural requirements have been complied with. We do not believe that it would be a good idea to amend the bill so that decisions are based on procedural technicalities such as making communities wait three years before having the chance to make a further application.
I will now speak to amendments 8, 10 and 11 from my colleague Mr Thompson, which we support. At stage 2, Dr McLeod welcomed the intention behind Mr Thompson’s amendments to the test in section 47(2)(d) regarding significant harm. However, ministers were unable to accept them because it was felt that they lacked sufficient clarity and certainty to be compatible with A1P1 of the ECHR. Mr Thompson’s stage 3 amendments now give that certainty and we are happy to support them.
I will now speak to Dr McLeod’s amendments 61, 66 and 67. At stage 2, Mr Russell lodged amendments that sought to strengthen section 47(10), which provides that, in determining what constitutes significant benefit or significant harm to a community, the Scottish ministers must consider the likely effect of granting consent to an application on the lives of persons in that community and that, in doing so, they must refer to certain considerations, such as economic development and social wellbeing. Mr Russell’s amendments inserted paragraphs (ca) and (cb) in section 47(10), which add
“furthering and giving effect to equal opportunities” and
“the realisation of human rights” to the list of considerations.
At stage 2, another amendment from Mr Russell introduced section 47(3A), which required ministers to have regard to the International Covenant on Economic, Social and Cultural Rights in considering an application to buy land under part 5. Dr McLeod supported Mr Russell’s amendments, although she said that she would consider a stage 3 amendment to redraft them to make them clearer and more effective.
Amendment 67 seeks to impose on ministers a duty to have regard, when considering a decision under section 47 on a right-to-buy application, to
“relevant non-Convention human rights” and
“the desirability of encouraging equal opportunities”.
Relevant non-convention human rights are the human rights that ministers consider to be relevant, and they include the human rights in the ICESCR. Convention rights are excluded from that definition, because ministers are already required to act compatibly with the convention by virtue of section 57(2) of the Scotland Act 1998.
Our amendments 61 and 66 seek to remove section 47(3A) and sections 47(10)(ca) and 47(10)(cb). That paves the way for amendment 67, which we believe to be an improvement on the previous drafting, as it will require the Scottish ministers to have regard to relevant non-convention human rights and equalities when considering a part 5 decision, and it defines relevant non-convention human rights.
I will now speak to Government amendments 62, 63 and 65, which are on taking into account part 4 guidance when a part 5 determination is made. At stage 2, Michael Russell lodged an amendment to section 37 to allow ministers to have regard to adherence to community engagement guidance when considering a part 5 application to buy land. Dr McLeod supported the intention behind Mr Russell’s amendment but felt that its placement in the bill and its drafting needed to be reconsidered, and Mr Russell kindly agreed not to move his amendment.
Amendments 62 and 63 seek to amend section 47 so that, in determining whether the sustainable development conditions are met in relation to an application under part 5, the Scottish ministers may take into account the extent to which, in relation to the community that made the application, regard has been had to part 4 guidance.
Amendment 65 is a consequential amendment that applies the definition of “relevant community” in section 47(9) to amendments 62 and 63.
I will now speak to Dr McLeod’s amendment 64, which seeks to amend section 47(8A) so that it applies to the consideration of an application to purchase a tenant’s interest as well as an application to purchase land. Amendment 64 provides that ministers, in determining whether the transfer of a tenant’s interest is in the public interest, must take account of information that is provided by an owner or tenant regarding the impact on their interests of the proposed transfer, and must consider the likely effect of granting or not granting consent to the transfer on land use in Scotland generally.
Thank you, Presiding Officer.
“relevant non-Convention human rights” and
“the desirability of encouraging equal opportunities” as issues that ministers must have regard to. There was much discussion of those important issues in the Rural Affairs, Climate Change and Environment Committee, and it is right for them to be recognised in the bill.
With regard to Mike Russell’s amendments 7 and 8, I am somewhat reassured by what the minister said, and I might encourage Mr Russell to withdraw amendment 7 and to not move amendment 8. However, the situation of small farmers, who could be adversely affected, would become the ministers’ call, which is an important issue to take into account.
We cannot support Alex Fergusson’s amendment on repeat applications, as a community might have very valid reasons for wishing to make a repeat application. In addition, a different community group might wish to apply to buy the same bit of land for different purposes.
I will leave it at that.
Thank you, Presiding Officer. I will be very brief.
I, too, am very pleased that equalities and other human rights issues have been included in part 5. I am particularly pleased that they are being made so clear on the face on the bill. Human rights issues will now underpin a whole range of sections to such an extent that, in any decision in future, we will have to be mindful of considerations that are wider than property rights.
I am also very reassured by and grateful for the inclusion of the community engagement issue. At stage 2, the minister said that that issue would be considered, and it is exceptionally useful that community engagement will be a criterion for part 5 applications.
I stick with my original view on repeat applications being unsafe. I was persuaded of that at stage 2; there might well be people in the chamber who have heard of the situation, but I call in evidence the Castle Toward case, where there have, I think, been three applications over a five-year period. That would have been a problem had the provision in Mr Fergusson’s amendment been in place and the bill itself used.
I am also reassured on the issue of viable units. As long as ministers are very clear that the issue will be kept in mind in the consideration of part 5 applications, we will be going in the right direction.
In any case, if the minister has managed to persuade Claudia Beamish, he must have been able to persuade me. I will not press amendment 7.
Amendment 7, by agreement, withdrawn.
Amendment 107 moved—[Alex Fergusson].
The question is, that amendment 107 be agreed to. Are we agreed?
There will be a division. As this is the first division of the afternoon, I suspend Parliament for five minutes.
15:11 Meeting suspended.
15:16 On resuming—
We will now proceed with the division on amendment 107.
The result of the division is: For 95, Against 20, Abstentions 0.
Amendment 8 agreed to.
Amendments 61 and 62 moved—[Paul Wheelhouse]—and agreed to.
Amendment 9 not moved.
Amendment 109 moved—[Alex Fergusson].
The question is, that amendment 109 be agreed to. Are we agreed?
There will be a division.
The result of the division is: For 20, Against 96, Abstentions 0.
Amendment 109 disagreed to.
Amendments 63 to 65 moved—[Paul Wheelhouse]—and agreed to.
Amendment 10 moved—[Dave Thompson].
The question is, that amendment 10 be agreed to. Are we agreed?
There will be a division.
The result of the division is: For 95, Against 19, Abstentions 0.
Amendment 11 agreed to.
Amendments 66 and 67 moved—[Paul Wheelhouse]—and agreed to.
Section 55—Completion of transfer
Amendments 68 to 70 moved—[Paul Wheelhouse]—and agreed to.
Amendment 71 moved—[Paul Wheelhouse]—and agreed to.
After section 64
We come to group 10. Amendment 72, in the name of Sarah Boyack, is the only amendment in the group.
I am very grateful to the Presiding Officer’s team for agreeing to select amendment 72 for debate. The genesis of the amendment was my experience visiting town centres and speaking to local authority colleagues about why they are not able to regenerate areas, improve the quality of shopping, and get housing back into use. [Interruption.]
The reply that they invariably gave was that that inability is due to the lack of effective powers being available to them to force action. It is an issue on which the land reform review group recommended action be taken, and I raised it during the passage of the Community Empowerment (Scotland) Bill last year.
A range of organisations have worked hard to get the issue further up the political agenda. I want to thank Shelter Scotland, Scotland’s Towns Partnership, Rural Housing Scotland, the Scottish empty homes partnership and Community Land Scotland for their work on the policy background to amendment 72, which we discussed at stage 2.
During stage 2, I argued that the bill would be greatly strengthened by the inclusion of a compulsory sale order power in respect of empty buildings. The power would enable local authorities to bring difficult long-term-empty private properties back into use, and would be used only as a last resort, when other mechanisms have failed to bring such private properties—which blight communities—back into use. The hope is that the power would encourage property owners to get moving, and not to leave their properties in a state of disrepair. The power would be important because the best-practice process to support owners to bring their properties back into use, which is promoted by the Scottish empty homes partnership, has several steps. The use of a CSO enforcement power would be the very last of those steps. Nevertheless, I think that having that power would concentrate minds.
There are 150,000 people on housing waiting lists across Scotland and, although I believe that we urgently need to build new housing, it is crazy to forget that there is an opportunity to bring back into use empty properties that have sometimes stood empty for years, but could make excellent housing.
During the stage 2 debate, the minister offered me an opportunity to meet her colleague, the Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights, to discuss the issue. I received a positive response from the cabinet secretary, and we had constructive dialogue. I hope that moving amendment 72 will provide an opportunity for the Scottish Government to give an update to Parliament on its proposals to introduce a compulsory sale order power in the future. I look forward to a commitment of intent and a timescale being put on the record.
I move amendment 72.
I will be very brief. As I said at stage 2, I am broadly sympathetic to the principle of Ms Boyack’s amendment 72. I believe that there is a major crossover with the Community Empowerment (Scotland) Act 2015. That is a matter that I raised at stage 2, but did not get an answer.
I am not convinced that local authorities do not already have a range of powers that would achieve the same end as CSOs. The proposed powers encompass other policy areas including housing and planning. I am not entirely comfortable with the proposal being raised in relation to the bill. Therefore, it is my intention to abstain on the amendment.
At stage 2, Sarah Boyack lodged three amendments on compulsory sale orders. Scottish ministers welcomed the spirit of the amendments, but asked the committee to reject them in order to allow for careful thought and consultation on such a far-reaching proposal. We understand and very much appreciate the issues that Sarah Boyack has raised, and we welcome the opportunity for Parliament to reconsider them.
The Government’s position remains that it would not be appropriate to accept amendment 72, so we ask Sarah Boyack not to press it to a vote. We know that Ms Boyack has spoken to the Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights, Alex Neil. We know that, as Sarah Boyack said, Mr Neil is sympathetic to the aims of amendment 72 and supports the introduction of compulsory sale orders. I can confirm that, subject to the outcome of the election, Scottish ministers will look to include provision for compulsory sale orders in the legislative programme for the next session of Parliament, once all the necessary preparatory work—including legal and practical issues—has been considered and resolved. I hope that that gives the assurance that Ms Boyack needs.
The subject of amendment 72 is a big issue that sits between land reform, community empowerment and the whole matter of the powers that our local authorities have. There are so many town centres that are basically underutilised and blighted, so we need strong mechanisms. Whoever is in government, we would be very keen to push the policy, and we will get action in the next session of Parliament.
Amendment 72, by agreement, withdrawn.
After section 67
Group 14 concerns effective deer management, but group 11 deals with the entry in the valuation roll of shootings and deer forests. Amendment 73, in my name, seeks to make a link between effective deer management and the entries in the valuation roll. I am not against the valuation roll including sporting estates and deer forests, and I will vote in favour of that, but I do not wish to see effective deer management being damaged by the provisions.
Those who know the history will know that sporting rates were abolished in 1995. One reason for abolishing them was to allow proprietors to spend more on effective deer management. I know that members of the Rural Affairs, Climate Change and Environment Committee will have heard this from me before, but Scotland has a severe deer problem. The roots of the problem lie in the 19th century, as do those of many of the problems in land and land reform. The sheep runs that were established by absentee landlords across Highland Scotland, which were intended for profit, were replaced by deer forests, which were for sport. At one stage, 1.5 million hectares of Scotland were under deer forest.
In effect, there was no systematic control over deer numbers. That problem began to be noticed at the beginning of the 20th century. Over 100 years, there were seven inquiries into how deer numbers might be controlled. Ultimately, in 1959, the Red Deer Commission was established with the aim of controlling the number of deer. That was the start of an even more ineffective public policy on deer than had applied in the 100 years before.
The number of red deer was estimated at 100,000 in 1959. Frank Fraser Darling, the distinguished environmentalist who was the adviser to the commission, had estimated the number that the land could properly carry to be around 60,000. Deer do enormous damage, particularly when they get out of control. They prevent not only tree growth but regeneration, and they change the nature of the landscape. Deer can also do immense damage to each other—having too many deer in one spot leads to starvation.
Given that Frank Fraser Darling’s estimate was 60,000 after the Red Deer Commission was established, the measures have not worked, if we judge from the figures that the Scottish Parliament information centre gave in 2013. The estimate is that there are in Scotland today between 360,000 and 400,000 red deer, between 200,000 and 350,000 roe deer, 25,000 sika deer and about 2,000 fallow deer.
Just to stabilise that population, we would have to cull a third ever year, and nothing like that is taking place. We will discuss deer management later, and there are proposals that will begin to assist with that, but my strong view is that the voluntary principle has not been effective. It has been good in some places but very poor in others. We must do everything that we can to encourage effective deer management.
I have been asking the Scottish Government to link the sporting rates for deer forests with effective deer management in the bill. I am grateful to the cabinet secretary, the minister and the Deputy First Minister for the several discussions that have led to amendment 73. The amendment would say to those who are involved in the valuation process that they should take into account effective deer management. Where effective deer management exists and is working, that should be factored into the rates that the deer forest pays.
I hope that that would encourage effective deer management to continue. The matter does not concern just large estates. As Alex Fergusson knows, there is a growing problem of deer management in the south of Scotland. Getting the right mechanism in place there for deer management is crucial if the huge mistakes that were made in the Highlands are to be avoided. We will achieve that only if there is encouragement to allow it to happen.
Some of the other amendments in the group attempt to change the provision and in some sense object to the imposition of sporting rates and rates for deer forests. I do not share that objection.
I want to make sure that whatever we do does not make a particular situation worse. Anything that discourages effective deer management will continue to allow deer numbers to grow. There are places in Scotland where it is impossible to grow trees without fencing and where the nature of rural occupations is changing because we have not tackled the problem.
The Scottish Government is committed to a review of deer management in the coming year. I hope that it will be a radical review that is undertaken in such a way that we get effective action. At this stage, I seek to make sure that nothing that we do will make the situation worse.
I move amendment 73.
I very much welcome Mike Russell’s amendment 73. My concerns are not so much about deer management and deer forests as about commercial shootings. Members might remember that I attempted to remove part 6 of the bill at stage 2 on the ground that the committee’s stage 1 report had been pretty scathing about the Government’s proposals to reintroduce sporting rates and the almost complete lack of information or evidence to back up its assertion that it was somehow fair to do so. There was considerable confusion about how long the exercise to place a value on the land for which sporting rates would be levied would take, how much the proposal would cost, how much it would raise and even why the Government wished to raise the idea in the first place.
I remain dissatisfied with the Government’s response to the committee’s demands for further and better information and I am surprised that I appear to be almost alone in that dissatisfaction. Despite the fact that 88 per cent of sporting businesses are—according to the British Association for Shooting and Conservation—run at a loss and the fact that most shootings and deer forests are run on a not-for-profit basis, the intention to reintroduce the tax on rural businesses remains.
Amendment 110 would place a duty on each local authority to introduce a scheme for those who can demonstrate that a reintroduction of sporting rates would have a detrimental impact on any business that is associated with commercial shootings or deer forests. That would help to prevent job losses and the possible closure of several businesses across rural Scotland as a result of the measure.
Amendment 111 would place a duty on the Scottish Government to conduct robust research into the direct impact of sporting rates on rural businesses. That would satisfy the committee’s request for a full socioeconomic impact assessment before the reintroduction of the tax.
Amendment 112 would introduce a sunset provision by placing a duty on the Scottish Government to review the impact of the reintroduction of sporting rates after one full session of the Parliament, with a subsequent decision on whether they should be continued. That would also enforce post-legislative scrutiny, which most members agree we should do a lot more of.
Amendment 113 would place a further duty on ministers to present a report on the impact that sporting rates have had on businesses and on communities that are related to those businesses.
That level of examination is necessary for this legislative measure, which has been brought in without any persuasive reasoning or research and which the Government appears to be reintroducing simply because it has the ability to do so. Taken as a package, I believe that amendments 110 to 113 would add badly needed back-up to the Government’s proposals and provide an appropriate level of post-legislative scrutiny, which, if the Government really has faith in its proposals, it should welcome.
Deer management is in vital need of reassessment, and we will come to it later. As for the entry in the valuation roll of deer shootings and deer forests, I will speak against all the amendments in the group. My concern with Mike Russell’s amendment 73 is about the wording
“In arriving at the net annual value ... regard may be had to such factors relating to deer management as the assessor considers appropriate”.
That is too vague and leaves too much to the assessor, and it would water down the rates arrangements. I acknowledge that there will be instances of estates working hard on conservation, but the attempts to assess that work for which the amendment provides have not been given the clarity that we would want.
Alex Fergusson’s amendments—especially amendment 113—are too prescriptive. The time has come for shooting businesses to be treated in a similar way to other rural businesses, such as those in the tourism sector. There will be other protections for small rough shoots and other small businesses.
I thank Michael Russell for setting out the rationale behind amendment 73. It would recognise the potential relevance of deer management factors to the net annual value of deer forests and it would ensure that there was no doubt that assessors can take account of those factors in determining the net annual value that is to be entered in the valuation roll.
Although we take the view that assessors will already be able to take material factors into account as part of their valuations, we appreciate the importance of the wider deer management context in making provision on deer forests. We are content for the point to be reflected in the bill in the proposed way so that there will be no doubt that assessors can, if they deem it appropriate, take account of deer management factors in their valuation methodology.
We reiterate our commitment that, once valuation information in respect of the provision is available from the assessors, we will engage with the sector and with the Rural Affairs, Climate Change and Environment Committee or its successor ahead of finalising decisions on the rates liability for 2017 implementation. We support amendment 73.
I thank Alex Fergusson for setting out the rationale behind amendments 110 to 113. He has covered much of the explanation of what the amendments seek to achieve, so I will cover only the rates relief issue.
We have said that we are not persuaded of the need for a rates relief scheme—other than the small business bonus scheme—as it could undermine our revenue and fairness objectives for part 6. It could be onerous and problematic for council practitioners, and we feel that there are better ways of targeting support to improve outcomes.
In any case, the value of the tax base must be known in order to make an informed decision, for which part 6 of the bill provides. Ministers will then make separate rating and relief decisions under secondary legislation. Furthermore, I regret to say that we believe that Mr Fergusson’s eligibility criteria in relation to substantial detriment to a business are nowhere near practicable.
As for a report on impacts, ministers have already said that, once valuation information is available, which is likely to be later in 2016, we will engage with the committee before making rating decisions. We have covered that at length, including in an 18-page report that we submitted to the committee in January.
Mr Fergusson unfortunately seems to be alone among RACCE Committee members in believing that a property tax bill can somehow be translated into a fully detailed scenario to show how a community would be affected. We believe that it cannot be translated in that way and that doing that would represent speculation rather than analysis.
We accept that tax must be proportionate and sustainable, and that is our intention in the bill. That is why the rateable tax base is based on market values and set by independent assessors and why the Government maintains dialogue with practitioners and sector stakeholders.
There is no need for Mr Fergusson’s sunset clause. If, for whatever reason, the rates liability needed to be amended or even repealed, that could be done by way of regulation. There would be no need to stop valuing the tax base, which is what part 6 provides for, rather than the setting of the tax.
I am sorry that Claudia Beamish does not feel that she can support my amendment 73. I point out to her that what I propose—and what I hope that members will support—is more or less what existed pre-1995. If members support the reimposition of such rates, they are supporting something that mirrors the pre-1995 situation.
The assessors’ pre-1995 practical notes, which were provided to assessors for their work, stated:
“In any case where an assessor is satisfied that a greatly increased bag is purely the result of compliance with Red Deer Commission guidance, he should be prepared to base his valuation upon a notional figure closer to the average seasonal bag shown in the records.”
That meant that, if proprietors were observing good and effective deer management, there would be a variation. My amendment would reinstate the pre-1995 situation almost exactly.
I say to Alex Fergusson that, although nobody likes paying any type of taxation, there is a basic equity and fairness in the proposals, which is that other rural businesses are required to pay rates. In those circumstances, it is a necessity to reintroduce sporting rates, unpopular as that might well be with those who have to pay them.
By putting a reference in the bill to effective deer management and making sure that that counts, we will take a good step forward. I am glad that the Government supports amendment 73 and I hope that members will support it.
The question is, that amendment 73 be agreed to. Are we agreed?
Amendment 110, in the name of Alex Fergusson, has already been debated with amendment 73—[Interruption.] I am sorry—I did not hear members saying no. We will retake the question on amendment 73.
The question is, that amendment 73 be agreed to. Are we agreed?
There will be a division.
In speaking to amendment 114, I draw members’ attention to a typographical error in subsection (3) of the new section that amendment 114 would introduce: the word “be” should be the word “by”. I am advised by the legislation team that the issue could be dealt with as a printing point under section 2.71 of the guidance on public bills, so I hope that that will not cause a problem.
During the recent budget debate, several political parties suggested packages of measures to raise revenue to protect public services from the effect of cuts, which begin at UK level but which we feel should not be passed on to local council level. Although there was a difference of opinion about how best to raise that revenue, the Greens advocated, as we have done since 2011, that we should raise revenue as fairly and as progressively as possible at local level.
It is interesting that, since that debate, the Scottish Government’s proposals for long-term reform of the council tax, such as they are, reflect quite closely some of the emergency short-term measures that the Greens proposed for raising revenue in the current financial year, not just the council tax multiplier but the more substantial element of our revenue-raising package, which was taxation of vacant and derelict land.
The Government is now proposing to consult on that measure which, by a conservative estimate, could raise something in the region of £250 million a year. We argue that that should be done now, not only to raise revenue to protect public services but to ensure that people who see vacant and derelict land know that those who hoard it and hold it back from development have to contribute at some level to the investment that we require—for example, investment in housing to meet the needs of people whose needs for housing are unmet by the current housing market.
The measures that I proposed during the stage 2 discussion on this issue were about ensuring that vacant and derelict land was brought on to the valuation roll. We were told by the minister that that is already provided for in statute. Therefore, the amendment that I am bringing today at stage 3 will merely ensure that local authorities will be in a position to raise a levy on that land. That is entirely consistent with other measures that the Scottish Government has already taken. The Government has already talked about reducing the reliefs that are available for derelict and disused industrial properties. If we do that but do not address the question of vacant and derelict land, we will increase the already perverse incentives for buildings to be demolished in order to avoid payment of tax, so that the owners of such sites stop paying their fair share to the common good.
It is entirely reasonable and proportionate to raise revenue at local level from resources that are being underused by those landowners who are hoarding them from development. It would ensure that the Scottish Government and local authorities are equipped, not just at some point during the next parliamentary session, but in the short-term, to raise the revenue that is necessary to protect our public services, which are under such severe threat.
I hope that the amendment will have the support not just of the Scottish Government in relation to its existing measures to reduce relief on empty and derelict industrial property but of other members who have argued for the raising of revenue in the immediate crisis period that our public services are facing.
I move amendment 114.
It is very welcome that Patrick Harvie has lodged this amendment. It gives us the chance to discuss its merits as part of the overall package that we need to consider in order to bring land back into productive use, and the general issue of how we broaden local government funding. Given the crisis that we now face in local government funding, we need options for the future.
We are very interested in exploring the principle of the amendment. We have had the commission on local government and then the Scottish Government’s own working group to identify a more sustainable and accountable set of options for funding local government. The issue has to be seen in that context.
The principle of enabling a levy on vacant or derelict land would add to the motivation for landowners not to sit on land or hoard it. There is a cost of vacant or derelict land to wider society. It can bring down the quality of people’s lives, it can lead to areas becoming unattractive, it can lead to personal safety concerns, and it can bring down the value of people’s property and undermine economic activity in an area.
We all know of land that a developer has sat on in the hope that one day its value will rise, or that a local authority will reduce its planning requirements and standards, just to get something developed. It is high time that we have a discussion about the issue and we are very glad that it has been raised in the context of today’s debate.
I will be very brief and say that I feel very similarly about amendment 114 to how I felt about Sarah Boyack’s amendment on compulsory sale orders. I can see where Mr Harvie is coming from and, as Sarah Boyack said, the principle is worthy of exploration, but I do not think that it is best dealt with in this legislation. I think it would be better looked at as part of consideration of non-domestic rates in the next session of Parliament. For that reason if no other, I will not be supporting the amendment.
I thank Patrick Harvie for setting out the rationale behind amendment 114. The Government has great sympathy with the principle that he outlined of trying to secure regeneration. Sarah Boyack and Alex Fergusson made similar comments. However, amendment 114 would give local authorities wide discretion to charge a levy on certain vacant and derelict land, subject to any regulations that ministers might make. Ministers met Patrick Harvie following our offer to do so in respect to his related stage 2 amendment 129, which he withdrew, as he said. We were grateful for that discussion.
As members may be aware, on 2 March the Scottish Government committed to a consultation on the taxation of development land and vacant and derelict land. The Government’s objective in that respect is to unlock development land and accelerate the supply of land for housing, rather than to try to address a revenue issue. The consultation will therefore address whether, how and under what circumstances we should introduce any such levy. We understand that there are differing views as to whether such a measure would be effective or necessary, which is what we will seek to determine through the consultation.
We have already started to engage with stakeholders and we intend to confirm details of the consultation before the summer parliamentary recess, if we are re-elected. I therefore ask Patrick Harvie to withdraw amendment 114, and if he does not I ask members to reject it.
At one level, I agree with something that Alex Fergusson said: that this issue could be best addressed in the context of wider reforms of non-domestic rates. Members will be well aware that my party’s long-standing position on fundamental reform of the way that we fund local services is to replace council tax and non-domestic rates with a land value tax. During the next couple of months, when I am sure that all of us will put forward our ideas about how Parliament should conduct its business in its next session, we will introduce proposals to move us in that direction.
In the short term, we are facing a crisis in the funding of many local services, as Sarah Boyack acknowledges, and I see no reason to hold off from this shorter-term measure, which would allow us to raise revenue, as well as to achieve a social and environmental benefit by putting land into productive use, within the context of what is permissible under the planning system.
In saying that amendment 114 would give local authorities “wide discretion”, the minister seemed to imply that that was a bad thing. I would like us to give much wider discretion on financial matters to local authorities in general, not just in relation to this measure.
I am grateful for that clarification and I look forward to the minister voting assertively in favour of the maximum level of financial discretion for local authorities in the future.
Given that ministers would have the right to set regulations under which the levy would be charged, as has been stated, the measure is a reasonable and proportionate way of addressing the immediate situation. I was a little disappointed when the minister said that the Scottish Government intends to consult not only on how to do this, which I was expecting, but on whether and how to do it. That is a disappointing approach to the consultation. Whatever happens to amendment 114, in its next session the Scottish Parliament must be resolved to ensure that revenue is raised in this and other ways at local level.
I press amendment 114.
We need a debate on the issue that amendment 115 covers. I have been pursuing it since our discussions on the Community Empowerment (Scotland) Act 2015 and I think that it is unfinished business.
Section 71 of the Local Government (Scotland) Act 1973 provides that
“for the purposes of any of their functions under this or any other enactment, a local authority may be authorised by the Minister concerned with the function in question to purchase compulsorily any land”.
The reference to “enactment” covers new provisions on allotments. However, my reading of the answer that I received to a recent parliamentary question on the updating of the law on allotments is that the existing power to acquire land for allotments will be lost when the Community Empowerment (Scotland) Act 2015 comes into force. I hope that that is an unintended by-product of the 2015 act, and I drafted amendment 115 to avoid that happening.
I hope that the minister will be able to pick up the issue today and support amendment 115 or provide comfort by assuring me that my interpretation of the answer that I received is not correct. I am keen for the minister to confirm, on the record, either that local authorities will still have powers to acquire land for allotments and how they may do so, or that the Scottish ministers will support amendment 115.
I move amendment 115.
Again, I do not think that the issue should be slotted into this bill without proper scrutiny or indeed evidence on the subject, especially as we spent considerable time trying to simplify the legislation that relates to allotments during the passage of the Community Empowerment (Scotland) Bill. I do not know whether the minister is minded to support amendment 115, but I am afraid that we are not so minded.
I understand that Dr McLeod responded to Sarah Boyack’s question on 10 February. The Scottish Government response remains the same today: the minister’s officials are reviewing the position on the need and justification for the compulsory purchase of land for allotments, using compulsory purchase orders. If legislative proposals are to be introduced as a result, sufficient scrutiny will need to be given to the best approach. There are issues to do with article 1 of protocol 1 to the ECHR, as we said in the context of other measures in the bill. Work on this important matter is going on and we are taking a considered and proportionate approach to the issue, rather than attempting to address it at a very late stage of the Land Reform (Scotland) Bill.
Section 119 of the Community Empowerment (Scotland) Act 2015 places a duty on each local authority to
“prepare a food-growing strategy for its area.”
The Scottish Government is employing an allotments officer from Fife Council, part time, to take the work forward in partnership with local authorities, the Scottish Allotments and Gardens Society and the wider growing community. Given the underpinning work that is going on in the background, I hope that Ms Boyack is reassured that we are taking the matter seriously.
The compulsory acquisition of property is a significant measure that can have an adverse impact on people’s rights. The inclusion of a provision in that regard at stage 3 of this bill, without going through the proper process of parliamentary scrutiny and evidence taking, is not something that we can support. However, we acknowledge the strong demand for allotments and Ms Boyack’s strong interest in ensuring that it is met.
I see that I will not get a majority on the issue. In one sense I am reassured by the minister’s words. I am well aware of the food-growing strategy provision and that there is huge support for allotments, with waiting lists for allotments across the country.
I am less reassured by the question mark that the minister placed over the ambition that local authorities should be able compulsorily to acquire land for allotments. If we are requiring local authorities to make allotments available, we need to give them the tools with which to do so. I will not press amendment 115, on the basis that it will be defeated and I do not want to create division on an issue on which we should all agree, but I urge ministers to be clear about the work that is going on and to take more seriously the challenge for local authorities that do not have land available for allotments but are faced with huge demand and a requirement—which we placed on them in the 2015 act—to provide allotments for constituents who would like to benefit from them.
Amendment 115, by agreement, withdrawn.
After section 69
Amendment 116 provides for Scottish Natural Heritage to review its code of practice on deer management every three years. The purpose of the review would be to assess the extent to which owners and occupiers of land are complying with the code and the effectiveness of the code in promoting sustainable deer management. SNH would submit to the Scottish ministers a report based on the findings of the review, including any recommendations. The Scottish ministers would be required to lay the report before the Parliament.
I note that the Association of Deer Management Groups has expressed concern about this amendment in their stage 3 briefing. However, I believe that there is some consensus across the chamber on the grave concerns about deer management and on the fact that the issue is really out of control. Scottish Labour and I are clear that this provision is now necessary to help focus the minds of those who are not doing what they should be doing as we go forward as a country to create a countryside where biodiversity is at the heart of our actions, even as we take into account economic interests.
Amendment 116 would ensure regular monitoring and reporting on compliance with the code by all landowners and occupiers, and not just public bodies. There would be a clear case for Government to take action if the report indicated that the code was not being complied with and was therefore not proving effective in achieving sustainable deer management.
At this point I would like to thank the minister in her absence and her officials for their support in the development of this amendment, which comes from stage 2 work that I did. I also acknowledge Michael Russell’s work on the issue, along with the work of others on the Rural Affairs, Climate Change and Environment Committee.
I support the minister’s amendments in this group, which give power to SNH
“to require return on number of deer planned to be killed”.
I also support the subsequent level 3 fines for non-compliance, which I think are proportionate.
I move amendment 116.
We certainly agree with Claudia Beamish that it will be very important to ensure that all those who manage deer are focused on the deer management code and are taking heed of the comprehensive advice that is available through the code. I whole-heartedly identify with her concerns regarding impacts on biodiversity and the other issues that she raises.
Amendment 116 will provide a means of signalling the importance of the code to private landowners and managers as well as public bodies. It will also provide a mechanism for SNH to assess compliance with the code and bring non-compliance to the attention of ministers and the Scottish Parliament.
We thank Claudia Beamish for the amendment. The minister is very happy to accept it, and I am happy to confirm that on her behalf.
I will start by speaking to amendment 74. Mike Russell’s amendment at stage 2 means that, rather than approving a deer management plan without modifications, or rejecting it, SNH can approve a plan with or without modifications, or reject it. Dr McLeod was happy to accept that amendment at stage 2 on the ground that it was intended to allow—indeed to encourage—dialogue between SNH and deer management groups on their plans. Concern, however, has been expressed that that amendment could have the effect of allowing a plan to be imposed on those groups without discussion. The concern is that SNH, should it be minded to do so or should pressure be put on it to act in this way, could rewrite sections of a deer management plan, hand it back to the owners and managers, and tell them to get on with delivering it, without further input or consultation.
We propose amendment 74 to ensure that discussions take place between SNH and owners or occupiers when a deer management plan is being prepared. The amendment would formalise that in legislation and ensure that any modifications that SNH proposes to make to a plan must be discussed beforehand with the owners or occupiers.
Amendment 75 provides SNH with the power to require owners and occupiers of land to make a return that shows how many deer are to be culled during the following year on their land. It replaces section 70A, which was added to the bill by Mike Russell at stage 2. I understand that Dr McLeod indicated then that, although we supported the intention, there were problems with the operation of the related offence provisions. Those have been addressed in this further amendment.
Section 40 of the Deer (Scotland) Act 1996 allows SNH, by notice, to require returns from owners or occupiers as to the number of deer killed on the land during a period of up to five years immediately preceding the serving of the notice. It is an offence to fail to make such a return or to provide any false information when making a return. Projected deer cull returns would allow SNH to compare planned and actual culls, and would focus the minds of owners or occupiers on carrying out responsible deer management. We supported Mike Russell’s amendment for that reason. However, the way in which his amendment to section 40 was drafted means that the offence of providing false information applies to the returns on projected culls. The provision of false projections would have been difficult to prove, and we do not think that the accuracy or otherwise of projections should be potentially subject to criminal proceedings.
The Government’s amendment 75 therefore creates a new section 40A in the Deer (Scotland) Act 1996, on projected deer culls, rather than attempting to include them in the existing section 40. The false information aspect of the offence provision has been omitted. Failing to provide a deer cull projection return will be an offence under proposed section 40A that is comparable with the existing offence of failing to provide a deer cull return for previous years under section 40. Amendment 76 removes section 70A from the bill because it is superseded by amendment 75.
I am very supportive of Claudia Beamish’s amendment 116 and the Government amendments in the group. I am grateful to the Scottish Government and particularly to the minister for accepting much of what I argued at stage 2. I thank the Scottish Wildlife Trust for its help in taking the issue forward at stage 2 and Richard Cooke of the Association of Deer Management Groups. That tribute to him will probably surprise him as much as it surprises me, but his work and that of many of his members has been effective; the problem is that it has not been effective enough, as the scale of the problem is much greater than an entirely voluntary system can cope with.
In 1989, 30 years after the establishment of the Red Deer Commission, the then chairman of the commission said in his annual report:
“Thirty years on and no improvement”.
“the single over-riding factor during the thirty years of our existence has been the steady increase in red deer numbers (to 300,000) … the success of well managed estates and groups has been more than cancelled out by the performance of others who have failed to appreciate the problems that over-population brings to neighbours and the deer themselves ... If we cannot get the required cooperation from deer managers the Commission will have no alternative but to seek a statutory solution to the problems.”
At the conclusion of the Deer Commission, whose merging with SNH I was involved with, virtually exactly the same thing was said. In the concluding report, the chairman said:
“the current voluntary system has not evolved much in the last 20 years ... if opportunities for reform are not taken then other approaches will need to be considered.”
I am grateful for Simon Pepper’s work in putting together an analysis of the reports of the Red Deer Commission and the Deer Commission over 50 years, because they tell us that the measures that have been adopted have not been successful. Essentially, this is the last chance for the voluntary system to work. SNH must try to ensure that that it does so.
The amendments give further powers to SNH, which should focus on ensuring that there is effective deer management in every part of Scotland. I know that, if that cannot happen and the review later this year does not produce that, the Scottish Government—whatever Scottish Government there is then—will be more than prepared to act.
After 50 years of the voluntary system and a century and a half of deer being a resource that is largely used by absentee landlords, the problem is now of a massive proportion in Scotland, and the problem for the south of Scotland is just beginning to be noticed. In those circumstances, we require a solution soon.
It may well be true that deer management has not changed much in the past 50 years, but it may have changed more in the past two years than at any other time for a very long time. That is due to the kicking, if I may put it that way, that the Rural Affairs, Climate Change and Environment Committee has given to the world of deer management.
I want to put that in context. I have no issues at all with amendments 74 to 76, but I am afraid that we will not support amendment 116 because, given that SNH is already required to approve the process of deer management planning and that management plans are reviewed annually by SNH, I cannot see any merit in Claudia Beamish’s proposal, which would simply heap a further onerous extra layer of bureaucracy on a sector that is already admittedly struggling to cope with what we are rightly asking it to do.
Perhaps I am a bit of an old softy about the issue, I do not know, but when we are asking big changes of people—and we have put a bit of a bonfire under the sector—I sometimes think that we also need to be seen to be a little encouraging and supportive and to help the sector through the changes that we are demanding, rather than just heaping more bureaucratic burdens on it.
I point out to the member and to the chamber that SNH’s 2014 deer management report highlighted a significant number of issues that were not being resolved. Scottish Labour and other members of the Rural Affairs, Climate Change and Environment Committee are concerned that we may have to move to statutory interventions. My amendment is a way of moving in that direction and putting down warning signs. Let us see where that takes us.
The member mentioned 2014, which was when the report was drawn up. I have said already that we have probably had more changes in the past two years than in the past 50 years.
I do not take away from the possibility of statutory intervention. The member will know that I have never shied away from that in committee. However, at this final stage of voluntary work, we should be seen to be supportive of and encouraging to the sector, rather than just heaping more burdens on it.
I am aware that my view will be defeated and that Claudia Beamish will have achieved a double in having two amendments agreed to this afternoon. That is two more than I am likely to get, but it will not stop me from opposing amendment 116 on principle.
As the person who perhaps propelled to notice the issue of deer management groups and their lack of effect, particularly in the Assynt area in my constituency, it is interesting to see in what are probably the last days of how the voluntary system works the very mixed figures that are being collected by SNH.
I have recently been given some figures. In March 2006, the density of deer in Assynt was 7.6 per hectare. The figure moved up to 7.7 in 2011 and 7.9 in 2013. It reached a low of 4.9 in November 2014, when the SNH count took place. In the most recent count in March 2016, the number is 10 deer per hectare. That is a huge density—twice the amount that is required. It is necessary for the proposed action to be taken.
Not at the moment, thank you.
On the idea of looking at having SNH modify the rules to consent and so on, as proposed by the Government amendments, it is essential to realise that the groups that make up the Assynt sub-group include the John Muir Trust, private shooters, the Assynt crofters who make a small income, some woodland groups and others.
Meeting all the needs of those groups in a voluntary system is almost impossible. It would be ridiculous if the current system of orders under section 7 and section 8 of the Deer (Scotland) Act 1996 were applied against the Assynt crofters and not against the bigger estates or the ones that will do nothing.
The need to have the amendments passed is merely a short passage towards the need for a much more statutory than voluntary system as indicated by Mr Russell. I support the amendments, but I point out that the figures show the necessity for action.
The result of the division is: For 102, Against 14, Abstentions 0.
Amendment 116 agreed to.
Section 70—Deer management plans
Amendment 74 moved—[Paul Wheelhouse]—and agreed to.
After section 70
Amendment 75 moved—[Paul Wheelhouse]—and agreed to.
Amendment 76 moved—[Paul Wheelhouse]—and agreed to.
After section 79A
We move to group 15. Amendment 117, in the name of Alex Fergusson, is the only amendment in the group.
I lodged amendment 117 in response to a set of circumstances that was brought to my attention only at the end of our stage 2 proceedings. That was unfortunate, to say the least, because I believe that those circumstances would attract the sympathies of most members as, in effect, they lead to the accidental creation of a secure 1991 act tenancy without the landowner’s consent and often even without their knowledge.
We are not talking about big landowners, but rather about somebody who has a few acres around their house or a smallholding from which they have not sought to make a living. As a perfect example, I will read an email that I received that highlights the circumstances that I am referring to. I think that other members will have received the same email.
“To whom it may concern ... Our family is in a situation where we own a small area of land, approximately 24.26 ha.
Through circumstances, we rented 20.46 ha of this land on a seasonal basis in the mid 1980’s.
No formal agreement was ever put in place, it was a verbal agreement. There was no ingoing valuation, but the tenant did state that he would only be interested in proceeding if he had a reassurance that he would be allowed to continue to farm that portion of the farm for 10 years. We (the family) thought that this was a fairly reasonable request as there would be a requirement for him to upgrade machinery. All was done on what we assumed was a trust basis, and was sealed with a handshake.
The person who rented this land engineered a situation, through growing winter crops, where a secure tenancy was created. Two internal fences were completely removed without any consultation and the remaining fences have been allowed to deteriorate to such a stage that the majority of the farm is not suitable for livestock farming. The initial arrangement was purely for bare acres, no buildings were included.
Again through naivete we allowed use of some of the buildings. Now each year about 60 cattle are wintered in our steading, and grain and machinery are stored. Minor damage has occurred but never repaired. No contribution is given for use of electricity, and when I asked for a contribution to the water bill, it fell on deaf ears ... In December of 2013 I offered to sell 11.7ha to the ‘tenant’ and resume 8.76ha to support my flocks of pedigree sheep. Again there was no response to this offer, not even an attempt to negotiate.”
The person writing the email is now of an age where they
“would like to give up full time work and semi retire to my small farm.”
In order to accommodate their small flock of sheep, they have to rent
“seasonal grazing leases ... The ‘tenant’ has used public money in the form of the Single Farm Payment since its inception and has done nothing to enhance the value of the property or improve it ... We are just a very ordinary family with no desire to be landlords. We feel in our semi retirement that it would only be right, just and proper if we were allowed to farm our small parcel of land.”
My amendment 117 seeks to deal with such unjust situations. It provides that, when a landowner owns land that is subject to a secure tenancy that was created without the consent of the owner, that owner can apply to the Scottish Land Court for an order that would convert the secure tenancy to a modern limited duration tenancy, the term of which should be left to regulations. I believe that the involvement of the Land Court is absolutely essential, because there would undoubtedly be differing views on whether consent had been given.
I accept that amendment 117 focuses on an issue that was not considered at stage 1 or stage 2, but it focuses on a set of circumstances that really needs to be addressed. I also accept that there might well be other options for how best to address it. If amendment 117 goes the way of all my other amendments and is not accepted by ministers, I ask that the Government commits—at the very least—to consulting on the issue and addressing it in the next session of Parliament.
I move amendment 117.
The example that Alex Fergusson gave is of a negative nature, and one can have sympathy for the family concerned, but we do not know the extent of such problems. At this stage, it would be difficult to support amendment 117. In addition, there might be examples on the other side of the argument. The fact that generations of tenants have not had leases of a modern nature is a cause for concern.
I seek some clarification from Alex Fergusson. I am not minded to support amendment 117. As Alex Fergusson said, the issue has emerged very late in the day for members of the Rural Affairs, Climate Change and Environment Committee.
I am always concerned about unintended consequences, which there might be in situations in which there is not a written 1991 act tenancy agreement but it is understood that people have such an agreement—I believe that such situations are quite common across Scotland. The amendment could have a negative effect on those who hold what Alex Fergusson and I would consider to be a 1991 act tenancy. I would appreciate it if the cabinet secretary and Alex Fergusson could address that point.
Before the law was changed in 2003, it was possible for a 1991 act tenancy to be created from a short tenancy if the landlord did not take the necessary steps to end the tenancy properly. I appreciate that that can mean that some people find themselves in unfortunate situations, such as in the case that Alex Fergusson cited, but the position of landlords with tenancies that they have inadvertently allowed to become 1991 act tenancies would not change as a result of amendment 117.
The reason for that is that the legislation does not distinguish between a 1991 act tenancy that was created intentionally and one that was created unintentionally. Allowing landlords to come forward now and claim that they did not consent to what happened in the past would be difficult not only to justify but to prove, and it could be open to abuse. We also know that there is no consensus in the industry about how long converted leases should last for.
The Scottish Government does not hold statistics on the number of landlords whose tenants have a 1991 act tenancy as a result of their not taking the action that was needed to end the tenancy. It is an issue that would need to be considered carefully in the future and, if there was good evidence that there is a problem, it would merit more attention, as Alex Fergusson said. However, we do not believe that the lodging at stage 3 of an amendment that has not been the subject of any prior consultation is the way forward.
For all those reasons, the Government cannot support amendment 117.
I thank those members who took part in the brief debate. I think that there is a genuine issue to address here—indeed, I would not have lodged the amendment otherwise—and it is highly regrettable that it was not brought to the attention of any of us until after stage 2 had been completed. It is perhaps surprising that nobody took advantage of the opportunity to provide written evidence in order to highlight the issue, but I have no doubt that this is an issue. I know of circumstances other than the one I have just read out of people finding themselves locked into a situation that they had no intention of getting into when they shook the hand of the person in question in agreement. The problem is born, perhaps, of naivety, but it is naivety for the right reasons—the charitable act of allowing someone to use a bit of surplus land that the land’s owner did not wish to use themselves. I hope that my intentions are, at least, seen to be honourable, because I believe that they are.
I accept—and I said as much when I was speaking to it—that the amendment might not be appropriate; it is therefore a probing amendment. I am not sure that I got a commitment from the minister to look at the issue in the next session of Parliament, but I think that I heard a willingness to do so should it come forward in another guise. If that is the case—I see the cabinet secretary nodding his head—I seek leave to withdraw the amendment.
Amendment 117, by agreement, withdrawn.
Section 79B—Repairing tenancies: creation
Amendments 77 to 79 relate to the repairing period in a repairing tenancy, which is the crucial period at the start of such a tenancy when the tenant is expected to improve the holding so that it can be farmed productively. Under section 79B, the repairing period must last at least five years, but the parties can agree a longer period at the start of the tenancy. At the moment, however, if the parties want to extend the repairing period later on, they need to apply to the Land Court. The amendments mean that the parties can agree an extension between themselves instead, without their having to go to the Land Court.
Amendment 79 provides that, where either party applies to the Land Court for an extension of the repairing period, the Land Court can extend the repairing period if it believes that in light of all the circumstances such a move is appropriate. The extension can be for however long the court thinks is necessary but, in practice, it is likely to depend on the state of the farm at the beginning of the tenancy, the reasons for seeking more time and whether a reasonably skilled tenant would need more time to bring it up to the proper standard.
Amendment 98 is a consequential amendment to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and ensures that the act’s provisions do not apply to modern limited duration tenancies and repairing tenancies. After all, they already do not apply to 1991 act tenancies, limited duration tenancies or short limited duration tenancies.
Amendment 99 is a consequential amendment to section 19 of the Agricultural Holdings (Scotland) Act 2003, which states that any provision of that act with regard to a tenancy’s termination does not affect the landlord’s separate right to resume the holding. Amendment 99 also ensures that section 19 applies to the landlord’s right of resumption under new section 17A of the 2003 act on repairing tenancies.
I move amendment 77.
Amendment 77 agreed to.
Amendments 78 and 79 moved—[Richard Lochhead]—and agreed to.
Section 79G—Repairing tenancies: irritancy
Amendment 80 adjusts new section 18B of the 2003 act on irritancy—which, in non-jargon, means the termination of the lease—in repairing tenancies to ensure that the new provisions on irritancy of MLDTs in section 18A of the 2003 act also apply to repairing tenancies throughout their duration. The one very important exception is that, during the repairing period, the lease cannot be irritated on the grounds that the tenant has breached the rules of good husbandry. That is out of fairness to the tenant, because during the repairing period the holding might not yet be in a good enough condition to enable the tenant to farm in accordance with the good husbandry rules.
I am pleased to support amendment 1, in the name of Claudia Beamish, which will have a real impact by removing the possibility of tenants in short limited duration tenancies and limited duration tenancies having their leases brought to an end for not paying the rent on time, unless they have first been given a fair chance to put the situation right. A landlord will still be able to bring the lease to an end if the tenant ignores the demand and does not pay the rent due.
I move amendment 80.
I am pleased to hear that the cabinet secretary is willing to support my amendment 1. I appreciate the support that I have had and the discussions that I have had on the matter with Scottish Government officials.
I will recap quickly. As the cabinet secretary said, amendment 1 inserts into section 18 of the Agricultural Holdings (Scotland) Act 2003 new subsection (2A), which provides that SLDTs and LDTs may not be irritated or terminated on the ground of non-payment of rent unless the landlord has first
“given the tenant a demand in writing requiring the tenant to pay the rent due before the expiry of the period of 2 months beginning with the date of the demand, and ... the demand has not been complied with.”
That means that, when the tenant has not paid the rent when it is due in accordance with the terms of the lease, the landlord must send a written notice setting out the rent that is due and giving the tenant two months in which to make the payment. If the tenant does not make the payment within two months of the demand, the landlord is free to proceed to exercise the irritancy provision of the lease. The irritancy is therefore purgeable.
Usually, an action for removing will then be raised in court, and the tenant will have an opportunity to challenge in court the lawfulness of the exercise of the irritancy clause, although the grounds for doing so are limited. Thereafter, the landlord must give two months’ notice before they exercise their right to remove the tenant.
I also support the cabinet secretary’s amendment 80, because it would be absurd for a landlord to be able to terminate a lease on the basis that good husbandry was not being carried out when the purpose of a repairing lease is to get the leased land into a state of good husbandry.
We are starting to get to the nitty-gritty of my interest in the bill. I am starting to get revved up, I am afraid.
I am happy to endorse amendment 80, but I am afraid that amendment 1 is a piece of nonsense, to be frank. As I said at stage 2, any tenant will know when their rent is due, especially with an SLDT or an LDT. It will nearly always be at Martinmas or Michaelmas—on 28 May or 28 November—and even if it is not, the lease will set out clearly when the rent should be paid. There is no need for amendment 1, which in effect simply requires an invoice for rent to be issued to the tenant after it should already have been paid and before the expiry of a two-month period. Amendment 1 is unnecessary and I am afraid that we simply cannot support it.
I would only add in response to Alex Fergusson’s comments that we believe that amendment 1 provides a protective buffer against irritancy for non-payment of rent, and therefore that it adds value. I ask Parliament to support it.
Amendment 80 agreed to.
Section 89A—Tenant’s offer to relinquish 1991 Act tenancy
New entrants and farmers wishing to progress are currently undefined in the new part 3A to be inserted into the Agricultural Holdings (Scotland) Act 1991, on the relinquishment and assignation procedure. Instead, the definitions are left to regulations. I do not intend to labour the point, but I highlight again that the way in which the definitions are framed will be crucial to the success or failure of the policy. If the definitions are too wide, more established farmers will fall within them and will outbid new entrants who are seeking to get a foot on the ladder. If they are too narrow, no one will be able to use the process.
I expected the definitions to be contained in the primary legislation so that we could scrutinise them fully and see the measure as a whole. Instead, we are being asked to consider a measure when we do not know who will benefit from it. Given that we will rely on regulations for the definitions, the regulations should be subject to the affirmative procedure, and that is what amendment 81 seeks to achieve.
Amendments 129 and 130 are a little more complicated. Section 89B(4) will allow ministers to make regulations to apply or disapply part 3A to partnerships, including limited partnerships, and I am concerned about the power that allows ministers to make regulations to apply part 3A to the general partners of limited partnerships. Given recent events and the terrible fallout from the Salvesen v Riddell case, we are all aware of how difficult and complex limited partnerships can be.
I appreciate that, as the bill is currently drafted, the ministers have only a regulation-making power, but it is clear that regulations could perhaps seek to apply part 3A to individuals who are not tenants. I am clear that the general partners of limited partnerships who hold tenancies are not secure and should therefore not be treated as such, as a clear distinction needs to be made between cases in which there is a true secure tenant on the land and cases in which there is a limited partnership.
We need to exercise great caution, and that is why I have lodged amendments 129 and 130, which I hope will get support from across the chamber, to help to boost the trust in the letting of land that is vital for new entrants and which we all desire.
I move amendment 81.
I should forewarn the chamber that there are a lot of amendments in this group and that I therefore have a lot to say.
I start with Jim Hume’s amendment 81, which would make the regulations defining “new entrants” and “persons progressing in farming” for the purposes of the relinquishment and assignation provisions subject to the affirmative procedure. I cannot support the amendment.
First, I do not think that it is necessary to increase the level of parliamentary scrutiny in this instance. It is our full intention to consult widely with stakeholders to arrive at sensible and fair definitions for “new entrants” and “persons progressing in farming”. Secondly, elsewhere in the bill—in section 74 on modern limited duration tenancies—there is another regulation-making power for defining new entrants for the purposes of that section, and that is subject to the negative procedure. The definition of new entrant is likely to be the same for both sections of the bill, so it is only logical that the level of parliamentary scrutiny should be the same for both. I therefore invite members to reject amendment 81.
Government amendments 82 and 83 ensure that, in circumstances where the tenant farming commissioner appoints and pays for a valuer as part of the relinquishing and assignation process, the commissioner can then recover those costs from the tenants.
Government amendments 84 to 90 all relate to the valuation calculation that is used in the relinquishing and assignation process. Those refinements are being made following further discussions with stakeholders to ensure that the provisions are as clear and workable as possible. Currently, the bill requires the valuer to take into account the existence of what is known as a special buyer—a person who would be willing to buy the land at a premium, because they have a particular interest in the land. However, the premium should already be factored into the holding’s market value, so it would be difficult to calculate separately. Amendment 84 means that the valuer is no longer required to take into account the existence of a special buyer.
The bill also requires the valuer to take into account any sporting interests contained in the lease. That is right and proper, but there may be other rights that have an impact on the value, such as mineral rights. Amendment 85 removes the reference to sporting rights to make sure that they are not given preference over other rights in the lease for the purposes of the valuation. It ensures that all relevant leases affecting the land are considered in the valuation process.
Amendment 86 makes it clear that the valuer is not to take into account whether the tenant has a successor that they could hypothetically have passed their tenancy on to if they were not using the section 89A process.
Amendments 87 and 89 are technical drafting changes. They make the wording in new sections 32I and 32K consistent.
I turn now to amendments 88 and 90. The bill currently says that the valuer should not take into account any increase or decrease in the value of the land that results from using the land for a purpose that is
“not an agricultural purpose or the carrying out of conservation activities”.
However, even if a use is agricultural or conservational, it might not actually be permitted under the lease, so amendments 88 and 90 make it clear that the valuer should take into account factors that impact the value of the land only if they are uses that are permitted under the lease.
Sarah Boyack emphasised at stage 2 how important it is that we make sure that the new relinquishing and assignation process works as effectively as possible. I absolutely agree, and the amendments that I have just outlined are part of ensuring that that is the case.
Of course, this is a brand new process, not just for tenants and landlords but also for agricultural valuers. With that in mind, I brought forward amendment 140, which introduces a regulation-making power that will mean that we have the flexibility to adjust the valuation provisions to make sure that they work as well as possible for the sector.
The regulations would be subject to affirmative procedure, so that the Parliament will have the opportunity to consider them fully. Equally important, we will be keen to hear the views of stakeholders from across the sector in that process. After all, they are the people who will use that new process. Throughout the bill’s passage, we have been keen to engage extensively with stakeholders on the new process, and amendment 140 demonstrates our continued commitment to that.
Alex Fergusson’s amendments 127 and 128 propose replacing the relinquishment and assignation provisions that are currently contained in section 89A with a new process. I find it ironic that, during stage 2, Alex Fergusson said that the relinquishment and assignation provisions had not received sufficient scrutiny—despite the fact that they were developed over a period of several months and involved extensive discussions with stakeholders as well as updates to the Rural Affairs, Climate Change and Environment Committee—yet at stage 3 he brings forward substantial new provisions that have not been subject to any wider scrutiny or consultation.
The committee, including Alex Fergusson, has consistently reminded us of the need to give the bill’s provisions the scrutiny and due diligence that they merit—Alex Fergusson has reminded us of that again today. We have taken that very seriously in the preparation of the bill. When we have made notable changes during the passage of the bill, they have been developed following engagement with, and feedback from, stakeholders and the committee.
Those issues aside, I believe that the amendments proposed by Alex Fergusson are flawed in several ways. First, his proposals specify that the process can be used only by a tenant who is seeking to retire from farming. The process in the bill is aimed at supporting tenants to retire, and in practice I anticipate that the great majority of tenants who use the process will be retiring from farming, not least because of the tax implications. However, I do not believe that it would be possible to define a tenant who was “seeking to retire” in a way that was meaningful, fair and enforceable. Also, I do not believe that it would be right to exclude tenants who want to downsize as a step on the road to retirement from being able to relinquish or assign their tenancies.
Secondly, Alex Fergusson’s amendments would let the landlord announce that he wants to buy out the tenant’s interest in the lease after the tenant has already lined up an assignee. Why would a potential assignee go through the whole process of entering into negotiations with the tenant for the lease—securing finance, valuing the tenant’s interest and making an offer—if they knew the landlord would trump them if they subsequently offered to buy the tenant out at exactly the same price?
It gets worse than that. Under Alex Fergusson’s amendments, the landlord could say that he wants to buy out the tenant, block the assignation and change his mind months later. The tenant would then be able to assign the tenancy, but by that point the assignee that they had lined up would probably no longer be interested, or might not be in a position to take on the tenancy. Indeed, they might no longer be eligible if they do not meet the definition of a new entrant or progressing farmer by that point.
Under Alex Fergusson’s amendments, the tenant could assign the tenancy only to the assignee that they originally proposed at the very beginning of the process so, if the original assignee is no longer a possibility, the tenant cannot assign. In addition, there is nothing to prevent a tenant from colluding with an assignee to assign for an inflated price that the landlord could never afford, because there is nothing in Mr Fergusson’s amendment that would require the assignee to pay the price if they ever got to that point in the process.
Thirdly, if the tenant is able to successfully assign, the assignee gets a tenancy that they can rely on for only 25 years. That is because Alex Fergusson’s process lets the landlord issue the new tenant with an incontestable notice to quit, for any reason, 25 years after the tenancy is assigned.
The relinquishment and assignation provisions in the bill were carefully developed, and we have continued to engage with stakeholders on refining them throughout the bill’s parliamentary passage. Indeed, the Government’s amendments in this group reflect further feedback that we took on board from stakeholders from across the sector.
Our overarching objectives, which I think everyone in the chamber will share, are to create secure routes into retirement for existing tenants, and accessible routes into farming for newer tenants. For the reasons I have outlined, I do not believe that the process that Alex Fergusson proposes would achieve that, so I invite Parliament to reject amendments 127 and 128.
I am mystified as to why Jim Hume has brought forward amendments 129 and 130. We all know how important it is to get the law on partnerships right, as shown in the case of Salvesen v Riddell. That is something that takes a lot of time. In the supplementary delegated powers memorandum for the bill, we said that we do not think that it would be feasible for tenants in certain partnerships to use the process outlined in part 3A. However, it is crucial that we consider the issue very carefully to ensure that we do not discriminate against any group and that we are ECHR-compliant.
Although part 3A of the 1991 act applies to partnerships just now, new section 74A of the Agricultural Holdings (Scotland) Act 2003 provides the power to make regulations so that ministers have the flexibility to do whatever may be necessary to get things right in the future. Jim Hume’s amendments would tie ministers’ hands before we knew what provisions we might need to make and what solutions are available.
We are acutely aware of the difficulties that are faced by people in limited partnerships. Of course, we would have supported Jim Hume if he had made proposals to help those in limited partnerships to move actively into new and more stable arrangements, but he has not done that, so we cannot support his amendments 129 or 130.
Finally in this group, I turn to the Government’s amendment 91. Section 55(4) of the Agricultural Holdings (Scotland) Act 2003 lets a tenant offer to give up their tenancy before the end date in exchange for compensation from their landlord. As part of the relinquishment and assignation process that is created by section 89A of the bill, tenants under 1991 act tenancies can no longer use section 55(4) of the 2003 act, because the new process replaces it. However, the bill removes the section 55(4) right from tenants of limited duration tenancies and modern limited duration tenancies, even though they are not eligible to use the new process.
Amendment 91 simply corrects that, with the effect that tenants with MLDTs or LDTs will still be able to offer to terminate their leases early in exchange for compensation from their landlord under section 55 of the 2003 act.
It is quite clear that the cabinet secretary and I—and possibly other members—have what I fear to be an irreconcilable difference over this issue. My belief is that the introduction at stage 2 of the ability of a 1991 act tenant to relinquish his or her tenancy and assign it for value has ensured one certain outcome: that the bill cannot deliver at least one of its policy objectives—that of increasing the amount of land that is available to rent in Scotland.
The bill as it stands will, I believe, do the exact opposite. That is because, first, any landlord who can afford it will almost certainly take the opportunity to buy out the lease when it is offered for relinquishment, at however unfair a price it may be. Secondly, no one with land available to let will let it on any kind of long-term or even short-term basis from now on. Welcome to the age of contract farming.
I still do not understand how the cabinet secretary can pursue a measure that fails to meet that policy aim of the bill—which was specifically ruled out by the review group that he chaired himself—on the grounds that it was not in the public interest.
It is telling: we might well expect Scottish Land & Estates to support my position on this matter; I find it interesting that the National Farmers Union Scotland does, too. The NFUS does so, as it has stated, because it simply does not see any benefit to agriculture from the proposed measure.
Instead of pursuing the agricultural holdings legislation review group’s vision of gradually allowing 1991 act tenancies to be replaced with more modern letting vehicles, the Government has chosen to mothball secure tenancies for evermore. The conversion model that was being progressed through the stakeholders group had a very real chance of changing things for the better, but that prospect has been well and truly torpedoed.
It is clear that relinquishment and assignation will soon become part of our legislation. My amendments 127 and 128 seek to restore a measure of balance, while helping to achieve the policy aims of the bill, by inserting an alternative new part 3A into the 1991 act, which contains four main differences from the existing new part 3A proposed by the bill.
First, my new part 3A would, as the cabinet secretary pointed out, restrict those who can use the measure to tenants seeking to retire. That would surely better target the policy to those it is seeking to assist.
Secondly, my proposals would introduce a new process by requiring the tenant to serve a notice to assign, which would include details of both the proposed assignee and the amount payable by that assignee. The landowner would then have an effective right of pre-emption to match that sum and buy out the lease.
Thirdly, the assigned lease would remain as a 1991 act tenancy for a period of up to 25 years, after which, as the cabinet secretary pointed out, the tenant could be served a notice to quit. That would allow the agricultural holdings legislation review group’s vision of secure tenancies slowly dying out to be realised without engaging the possible ECHR implications of allowing them to continue indefinitely.
Finally, the amount that is paid by the landowner in matching the assignee’s offer would be deemed to include compensation for tenants’ improvements, as the assignee would already have taken that into account. Any other approach would involve double accounting.
I believe that the adoption of my amendments 127 and 128 would bring about a more balanced and fairer approach to relinquishment and assignation and that it would bring the bill closer to achieving one of its policy aims. It would also reduce the very likely possibility of the legislation being challenged in the courts, as I warned about at stage 2 and very much fear will happen. If we cannot bring a more balanced approach to this part of the bill, I fear that we will have to watch from the sidelines as the tenanted sector falls apart.
Before I move on, I want to support strongly amendments 129 and 130 in the name of Jim Hume. I totally oppose manuscript amendment 140. I cannot understand why the Government suddenly considers it necessary to make what I see as very sweeping changes at such a late stage, even if the provisions are to be subject to the affirmative procedure.
Given that many other amendments in the group clearly define the valuation procedure, I am at something of a loss as to the sudden desire to virtually negate them via amendment 140, which gives no indication of either when or why the powers would be exercised. The cabinet secretary will no doubt smile, but to introduce an extensive power without either consultation or scrutiny says a great deal about the Government’s approach to the legislation. It will not receive the support of Conservative members.
Scottish Labour will not be able to support Alex Fergusson’s amendment 127, which I am sure comes as no surprise to the member. The STFA has highlighted that the amendment aims to reduce the length of a tenancy assigned to a new entrant or a progressive farmer. On that basis alone, we are not able to support it.
We support Jim Hume’s amendment 81, so that parliamentary scrutiny can be heightened in relation to new entrants. I note what the cabinet secretary said about the need for consistency, but I still feel that we should support the affirmative procedure in this case.
Scottish Labour cannot support amendments 120 and 130, for very similar arguments to those put forward by the cabinet secretary on general partnerships, which I will not go into again because of shortage of time.
Scottish Labour is not able to support the cabinet secretary’s amendment 86. The STFA has expressed concern, and I would like to highlight what it said. In its briefing, it states that amendment 86 proposes to value the tenant’s interest in the lease, taking no account of any potential successor of the tenant. That will place an unacceptably low value on the tenancy. In practice, the value of a tenancy will vary according to when the landlord would expect to gain vacant possession. That would obviously depend on the age and circumstances of the tenant and the existence of any successors.
Labour will not support Scottish Government amendment 86, but we will support the cabinet secretary’s other amendments in the group.
I very warmly support the amendments in the name of the cabinet secretary, as I and others supported the amendments that he brought forward at stage 2.
The provisions in question were inserted at stage 2, and there was a hugely loud reaction from those opposed to the changes. The changes do not provide for expropriation of land, in any sense. They would be seen in many places as very modest proposals that people have the right and expectation to get some advantage from the work and investment that they have put in to a tenancy.
I do not disagree with Alex Fergusson that there is a difficulty in balancing the rights of tenants and creating a security in the market for those who are going to lease land. If that cannot be achieved in a single bill, I hope that those of us who will have to choose in relation to the present bill will choose very firmly on the side of the tenants, and those tenants in particular who have put an enormous amount of time and effort into their tenancies and who still, at the end of the day, may walk away from those tenancies with very little.
That is the case particularly for those who are going to retire. The provisions will help those who intend to retire but have great difficulty in doing so because they do not have and cannot find successors. It will allow them to exit from their work with some dignity and some ability to look forward to their period of retirement.
I do not disagree with much of what Michael Russell has just said, as I think he knows. However, I hark back to a point that the rent review working group made to the committee before Mr Russell joined us. The group said that, if we got rent review and waygo right, we would solve a lot of the problems in the tenanted sector. Does Mr Russell not think that many of the problems to which he has just referred—and I understand why he did so—could have been properly addressed with a much-changed waygo procedure?
No, I do not believe that the evidence supports that view. It is an opinion, and the rent review working group was entitled to have an opinion on various issues. The reality is that, in most circumstances, creating a right is what needs to be done. There is no ambiguity in creating such a right. It says to a tenant, “You have the right—you have the ability to do this, and you should therefore exercise it.”
We see the issue arising again and again in the tenanted sector—for example, in relation to the question of a code of practice for land agents, which we debated earlier. There are very good landlords and good tenant-landlord relationships, but there are also circumstances in which the relationship is very bad. In those circumstances, individuals require rights. If they do not have those rights firmly placed in statute, they will be taken advantage of and they will suffer.
I will finish on one issue that has not yet been taken forward in the bill; the cabinet secretary knows what it is. I lodged an amendment—which I did not press—at stage 2 on the issue of those who have lengthy tenancies. If anybody has a tenancy of 50 years or more, they have created the agricultural unit, and in those circumstances they should be given the opportunity to buy it.
When I lodged that amendment, I was accused of creating further instability. Indeed, I have been accused of doing so by some people this week. However, the reality is that the issue will not go away.
There are huge differences in Scotland, west and east. There are undoubtedly many people on the east coast who do not wish to see any change to the legislation, as they believe that that would be threatening. However, many of the people I represent wish to see such a change. They believe that it is long overdue. Until they have that change, they will not regard themselves as being able to do the best that they can, not just for their families and their farms but for the communities in which they are set. Those communities would only benefit from such a change.
I believe, therefore, that the issue will require to be revisited, but I commend the cabinet secretary for the step that he has taken. It is the right step, and it should be supported by members on all sides of the chamber.
I have quite a few amendments to cover, but I will be fairly brief. I thank Alex Fergusson for supporting my amendments 129 and 130. Unfortunately, the minister finds them mystifying, but I believe that they would help to boost the trust in letting land that is vital for new entrants and which we all desire.
In return for Alex Fergusson’s support for my amendments, I am happy not to support his amendments in this group, which I believe are wrecking amendments.
I am happy to support the Government’s amendments in the name of Richard Lochhead. I believe that amendment 81 would go a long way—to put it mildly—towards helping the Parliament in its scrutiny. The cabinet secretary mentioned that there is no need for affirmative procedure, but his amendment 140 states:
“Regulations under subsection (5) are subject to the affirmative procedure.”
It is unfortunate that he and his party will not be supporting amendment 81, but I am glad that Labour will be doing so.
The result of the division is: For 52, Against 64, Abstentions 0.
Amendment 81 disagreed to.
Amendments 82 to 85 moved—[Richard Lochhead]—and agreed to.
Amendment 86 moved—[Richard Lochhead].
The question is, that amendment 86 be agreed to. Are we agreed?
There will be a division.
The result of the division is: For 86, Against 30, Abstentions 0.
Amendment 86 agreed to.
Amendments 87 to 90 moved—[Richard Lochhead]—and agreed to.
Amendment 140 moved—[Richard Lochhead].
The question is, that amendment 140 be agreed to. Are we agreed?
There will be a division.
The result of the division is: For 13, Against 102, Abstentions 0.
Amendment 127 disagreed to.
Section 89B—Tenant’s offer to relinquish 1991 Act tenancy: consequential modifications
Amendment 128 not moved.
Amendment 91 moved—[Richard Lochhead]—and agreed to.
Amendment 129 moved—[Jim Hume].
The question is, that amendment 129 be agreed to. Are we agreed?
There will be a division.
The result of the division is: For 18, Against 97, Abstentions 0.
Amendment 129 disagreed to.
Amendment 130 not moved.
After section 95
We move to group 19, on alternative forms of dispute resolution. Amendment 92, in the name of Graeme Dey, is grouped with amendment 131.
I will not take any more time than necessary to speak to amendment 92. I suspect and hope that it will command support from across the chamber, because the amendment stems from lines that Sarah Boyack, Claudia Beamish and I pursued at stage 2, when we sought to explore whether arbitration could be used to settle disputes over amnesty, and whether other matters that are currently excluded from access to arbitration might be opened up.
Section 61 of the Agricultural Holdings (Scotland) Act 1991 and section 78 of the Agricultural Holdings (Scotland) Act 2003 provide scope for a landlord and tenant, if they so agree, to seek dispute resolution. There is, however, a list of exclusions—matters that must go to the Land Court—a number of which I felt could reasonably be removed, potentially allowing them to be dealt with by arbitration rather than the more formal legal setting. Amendment 92 reflects the progress made in that regard with the Scottish Government since stage 2, for which I am grateful to the cabinet secretary, Richard Lochhead, and his team.
The effect of the amendment is essentially as follows. Under section 90, a tenant can serve an amnesty notice on their landlord, notifying the landlord that they intend to claim compensation for an improvement at the end of their tenancy. As the bill stands, if the landlord objects, then, in order to have the objection overturned and therefore be eligible for compensation for the improvement, the tenant has to apply to the Land Court to have the improvement approved. The amendment provides that, instead of going to the Land Court in those circumstances, the tenant and landlord can agree to go to binding arbitration.
The following are some of the items that were previously on the list of exclusions that will be opened up to arbitration. Section 8(6) of the 1991 act says that disputes over a record of the condition of the holding are to be referred to the Land Court for determination. Under the amendment, those can be taken to arbitration instead, if the parties so agree. It also opens up cases that are covered by section 39 of the 1991 act and section 49(2) of the 2003 act. Those sections cover cases where a landlord has objected to an improvement and the tenant has appealed to the Land Court for approval. They also cover cases where the Land Court has granted approval and the landlord has said that they will carry out the improvements but has then failed to do so in a reasonable time, so the tenant has applied to the Land Court to be able to carry out the improvements themselves.
I move amendment 92.
As Graeme Dey acknowledged, I raised this issue at stage 2 because I had been contacted—as had other colleagues—by the Scottish Agricultural Arbiters and Valuers Association and the Central Association of Agricultural Valuers. They were strongly of the view that the bill needed to incorporate more and better forms of dispute resolution.
That view is something that makes sense and has support. We certainly support Graeme Dey’s amendment today. It is useful, as it would extend the matters on which the parties can agree to refer a matter to arbitration to include consent for tenants’ improvements with those under the proposed amnesty and records of condition. Alongside the Scottish Tenant Farmers Association we will therefore support this amendment.
However, SAAVA and CAAV believe that the change may be of little practical effect without the important reform that is proposed in amendment 131, which would give arbitration—and expert determination—parity of esteem and status with the Land Court. It would broaden the practical options for tenants and landlords and give the option of a final and binding answer.
I hope that when we pass this significant legislation today it will help to create a new framework for fairer decision making. That does not mean, however, that there will suddenly be an outbreak of sweetness and light. There will still be areas where there are significant disagreements between parties, which will have to be addressed effectively.
As Sarah Boyack will know from what I said at stage 2, I am sympathetic to much of what she is saying. However, a criticism of her amendment is that it might create different systems of arbitration in agricultural holdings, which could further complicate matters and thus discourage some parties from using the process, which would be the opposite effect to that which she is looking for.
That certainly is not the intent behind amendment 131. CAAV and SAAVA are very much of the view that we should add this set of options. One of the difficulties of moving amendments at stage 3 is that it is difficult to have a more probing discussion, which may be more suited to stage 2. I certainly acknowledge that. However, following stage 2 we did not get the response that would have enabled us to fix the problem.
SAAVA believes that we need the practical means to deliver that ambition. Amendment 131 addresses the points that were made at stage 2 and it reflects subsequent discussions that SAAVA had with the Scottish Government. I am keen to hear what the cabinet secretary has to say on that, and I hope that he will contribute to this debate.
We know that there will still be disagreements. Alex Fergusson made a point about what the options are. The option of going to the Land Court is expensive and time consuming. It is so expensive and time consuming that for many it is not an effective way to resolve disputes. Certain parties just do not take up the option.
I will quote from the principles that are set out in the “Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security”. Those guidelines are referred to in the Scottish Government’s amendment 18, which amended the bill today, and they suggest that it is best to provide
“timely, affordable and effective means of resolving disputes”.
With amendment 131, I am trying to raise the level of debate and add something to the bill. If members do not believe that it does the job, it is incumbent on them to suggest alternatives. The objective is to widen choice and give a range of options for available, practical and proportionate means to settle disputes and differences between parties. It includes the option for the arbitrator’s decision to be final and binding. The intention is that it is very much in line with the aims that Graeme Dey set out when he moved amendment 92.
The objective is to avoid the Land Court being the only option available, because, as I said, that option is not suitable for everybody who needs to resolve a dispute. I have tried to put on the table an amendment to improve access to remedy where there are differences and disputes and to deliver better answers in a way that is more affordable, proportionate and appropriate.
I am willing to listen to colleagues across the chamber and I am particularly interested in the cabinet secretary’s views, given that SAAVA has been in discussion with him since stage 2. We are just trying to get to a better place.
At stage 2, I made it clear that I agreed that tenants and landlords should have the option to settle amnesty disputes through arbitration. I also said that I would support parties being able to use arbitration—or another dispute resolution mechanism—to settle matters that are currently reserved to the Land Court but which would be suitable for arbitration as well. I am therefore pleased to support amendment 92, and I thank Graeme Dey and members of the Rural Affairs, Climate Change and Environment Committee for raising the issue. I know that a number of members, especially Sarah Boyack, have a general interest in it.
Amendment 131 has a bit of déjà vu about it, because the Scottish Parliament has been round the block on arbitration for tenant farmers. In 2002, the Parliament supported the ending of widespread arbitration for tenant farming, because the industry thought that it was too expensive and took too long to resolve disputes. Soon after that, Parliament introduced the ability to use the Land Court to resolve disputes, but it still allowed people to use arbitration if they wanted to.
Amendment 131 tries to apply the Arbitration (Scotland) Act 2010 to statutory arbitrations under the Agricultural Holdings (Scotland) Act 1991 and the Agricultural Holdings (Scotland) Act 2003. When the Parliament passed the 2010 act, it acknowledged that a one-size-fits-all approach does not work for statutory arbitrations; each case has to be considered carefully, because all cases are different.
The 2003 act made a lot of modernising changes to agricultural arbitration, making it much simpler and clearer. Amendment 131 would do the opposite, which is unfortunate. It would introduce uncertainty about which procedure applies in which situation and it would force parties and arbitrators to try to figure out when the 2010 act rules apply and when the 1991 and 2003 acts apply instead. As I am sure that members who have just listened to me say that know, that is a recipe for confusion as well as court appeals. Far from encouraging more arbitration, the approach would be likely to end up putting people off arbitration even more.
I think that we are all trying to get to the same place. After the bill is passed, will the cabinet secretary publish something that sets out the circumstances in which people can take different options, whether we are talking about mediation, arbitration or the Land Court? Could we have guidance that brings together all the different pieces of legislation on the issue and the different options, perhaps with best-practice guidance for farmers, whether they are small farmers or larger farmers, on how to access dispute resolution processes? Will the cabinet secretary act in that regard in conjunction with the industry, groups such as SAAVA and mediation networks?
That is a perfectly sensible idea, which I recall discussing in the committee at stage 2. Sarah Boyack makes a constructive suggestion, which I am keen to follow up. The issue is confusing, as many members are aware and, as with most confusing issues, no simple solution can be found that does not require a lot of detailed, careful thinking.
More work is required to understand all the implications of applying the 2010 act to agricultural holdings legislation, given that legislation already exists to enable parties to go to arbitration. We should not rush to make further changes to the dispute resolution process; if we did so, we would be in danger of fixing nothing and making matters even more confusing.
I cannot support amendment 131 but, in the spirit of my exchange with Sarah Boyack, I say that I recognise that there are issues that require to be addressed in future.
Amendment 92 agreed to.
After section 97B
Amendment 1 moved—[Claudia Beamish].
Small landholders are tenants under small landholders acts that were passed between 1911 and 1931. In character, small landholdings are similar to crofts, and they share a common history. However, unlike crofters, small landholders have been left behind as crofting legislation has been modernised and as the right to buy has been introduced for crofters and for agricultural tenants with a secure 1991 act lease.
Once numerous, there were an estimated 149 small landholdings left in 2014. In a letter to the Rural Affairs, Climate Change and Environment Committee on 9 February 2016, the Scottish Government revised that number down to 74, and there is still a feeling of uncertainty over the numbers.
As the Scottish Tenant Farmers Association observed in 2015:
“These tenants find themselves in a unique and unenviable situation—although they share similar rights of security with crofters and 1991 tenants, they have few of the benefits. They have had to provide the entire infrastructure of their farms; housing, buildings fencing and drainage but they have neither the rights of purchase of the crofter nor even the pre-emptive rights of the agricultural tenant. Moreover, they have limited assignation rights and little in the way of end of tenancy compensation. Small Landholders are still forced to operate under century old legislation which is in dire need of modernisation.”
I very much welcome the Scottish Government’s stated intention, in its letter to the committee of 9 February, to hold a consultation later in 2016 with a view to introducing legislation to improve the rights of the remaining small landholders. My amendment today seeks to make that a statutory obligation.
“My family have farmed this smallholding since 1915 and I am now in the unfortunate and critical situation of facing the possibility of eviction by my landlord”.
I am sure that Parliament would agree that tenants such as Jim deserve better than that. I very much hope that the Government will support my amendment and give us the assurance that the issue will be treated with the seriousness and urgency that it deserves.
I move amendment 132.
I raised the issue of small landholders at stage 2, with an amendment that sought the involvement of small landholders in the bill.
As Alison Johnstone has indicated, the legislation on small landholders has not essentially changed in more than 80 years. Although an attempt was made to include them in crofting legislation some time ago, it was not successful: it was well meaning, but I think that it misunderstood the nature of the arrangements that small landholders have.
It is very difficult to discover the number of small landholders, because some small landholders do not even know the nature of their tenancy. What is true, however, is that those tenancies tend to be extinguished when those people die or move off the landholding, because it is very difficult to find a way for them to leave it or to move it on.
Like other members of the Rural Affairs, Climate Change and Environment Committee, I have been in correspondence with Mrs May Macdonald in Arran. There are a range of small landholders in various parts of the country, but, again, we do not know precisely where they are and what they intend to do.
I was grateful to the cabinet secretary for giving a cast-iron commitment—which I am sure that he will confirm—to move the issue forward, first of all with a consultation, given that a legislative solution is not simple and will relate to the issues that arose this morning in some of our discussions about article 1 of protocol 1 of the ECHR. There are difficulties, just as there are with the right to buy, in ensuring that the tenancies can move in some direction, either through conversion into another form of tenancy or through purchase. A purchase in the nature of croft purchases may be a possibility, although that has been tried and does not appear to have succeeded.
A considerable amount of work needs to be done on the issue. I am very glad that Alison Johnstone has brought forward her amendment, because it will tie that cast-iron commitment down to a natural legislative solution. Should the amendment be agreed to—I hope that it will be—that solution will be in the bill, and therefore some hope will be given to small landholders that the issue will come to an end.
I very much support amendment 132. I hope that the Government can find it in itself to support it too, because then progress of a sort will have been made for small landholders today.
There are other people in different circumstances—I am sure that we will discuss them in the debate—for whom the bill still does not have a solution, such as those who hold land under interposed leases.
“Already a century has passed since the last meaningful legislation was passed offering improvements to such tenancies so there is no time to delay.”
The STFA supports Alison Johnstone’s amendment 132. I ask members across the chamber to give support to smallholders across Scotland and a commitment to act urgently by supporting the amendment so that we see that commitment in the bill.
I absolutely agree that action is needed to address the issues that face tenant farmers under the small landholders acts. That issue was raised very vocally at stage 2 by the committee, in particular by Michael Russell, from whom we have just heard, and by the convener of the committee, Rob Gibson, who raised the issue with me. That is why I gave a commitment on the record at stage 2 that, subject to the results of the election, we will carry out a consultation later this year to help us to explore the issue and how we can most effectively address it. I am pleased to repeat that commitment and to assure Alison Johnstone and the other members who have spoken that the ground work for that consultation is already under way. Indeed, I understand that my officials have offered to meet Alison Johnstone as part of the development of the consultation. I am sure that they will meet other members as well.
I am happy to strengthen the commitment by accepting amendment 132.
I thank colleagues for their very positive and helpful comments. Mike Russell was right to point out that some small landholders lack clarity on where they fit into the system. It is clear that a review is long overdue. I welcome the recognition of the need for that action and will not take up any more of the Parliament’s time. I press the amendment.
Amendment 132 agreed to.
Section 98—General interpretation
Amendment 93 moved—[Paul Wheelhouse]—and agreed to.
Section 99—Subordinate legislation
Amendment 133 not moved.
Amendment 94 moved—[Paul Wheelhouse]—and agreed to.
Amendments 134 and 135 not moved.
Section 101—Crown application
Amendment 95 moved—[Richard Lochhead]—and agreed to.
Schedule 1—Right to buy land to further sustainable development: minor and consequential modifications
Amendments 96 and 97 moved—[Richard Lochhead]—and agreed to.
Schedule 2—Agricultural holdings: minor and consequential modifications
Amendments 98 and 99 moved—[Richard Lochhead]—and agreed to.