Official Report 854KB pdf
Welcome back.
Agenda item 3 is an evidence session on the Land Reform (Scotland) Bill. We will hear from a panel of legal experts, and our focus will be on part 1 of the bill.
I am pleased to welcome Malcolm Combe, who is present in the room and is a senior lecturer in law at the University of Strathclyde. I also welcome Calum MacLeod, who joins us online and is a solicitor in practice in Inverness. Calum, we understand that you are speaking in a personal capacity as a specialist in this area of the law, and not on behalf of your firm. You have nodded, so I am sure that you agree with that.
I also welcome Rhoda Grant MSP, who is online. She will get to ask some questions at the end of the session.
I remind members of my interest in a family farming partnership in Moray, as set out in the register of members’ interests. Specifically, I declare an interest as an owner of approximately 500 acres of farmed land, of which 50 acres is woodland. I also declare that I am a tenant of approximately 500 acres in Moray under a non-agricultural tenancy, and that I have another farming tenancy under the Agricultural Holdings (Scotland Act) 1991. I also declare that I occasionally take on grass lets for my cattle.
We have allowed an hour and a bit for this part of the meeting.
We will now go to questions. I get to ask the first one, which is the easy one at the beginning. Malcolm, I ask you to say a little bit about your experience in land reform, so that people are aware of it.
Thank you, convener. I have been a land reform watcher for a while, I suppose. I did my undergraduate dissertation on the first Land Reform (Scotland) Bill when I was studying for an LLB at the University of Strathclyde. After that, I took a traineeship and then qualified into the law firm Tods Murray LLP, which no longer exists, unfortunately, so I could have no conflict of interest there. Then I took up an academic post at the University of Aberdeen. Shortly after that, I became an external adviser to the land reform review group—some committee members might remember that ad hoc group.
As it has been threaded throughout my own legal research and projects, I have developed a bit of a specialism in land reform. I teach a property law course to undergraduate students, and I have taught honours courses on the subject. I also teach a housing law subject at the University of Strathclyde.
Like Calum MacLeod, I am appearing before the committee in a personal capacity—the University of Strathclyde knows that I am here, but I am here in a personal capacity.
Also, I am one of seven members of the Scottish land fund committee, which grants awards from the Scottish land fund. Technically, in that capacity, I am a civil servant. Again, I am not speaking in that capacity and I do not regard that as a conflict of interest. However, I will not speak about anything that is embargoed or privileged in that capacity.
Thank you. We move on to Calum MacLeod.
First, thanks for the invitation today. I offer my apologies that I cannot be there in person. I am a rural property solicitor. I act for and advise landowners and community groups alike.
I have a special professional interest in community ownership and community buy-outs; I have advised on around 30 community buy-outs. As was stated earlier, although I am not giving evidence on behalf of my firm, my evidence is certainly based on my own professional experience of land reform and community ownership.
Again, I have another simple question. We seem to do land reform around every 10 years. Is it time for further land reform? [Interruption.]
I do not know what has happened to the screens. Is Calum MacLeod still there? I can see everyone again now—it was a temporary flicker.
Just in case you did not get that, I will repeat my question. We seem to do land reform every 10 years. Do we need to do it again? Will the bill improve transparency and the right to sustainable development for communities and ensure the adequate supply of land? That is a very simple question.
I am a little bit confused as to who goes first on that.
I was just looking at that. This is how it will work. When I ask a question, if either of you looks away, I will probably come to you first. Neither of you did, so Malcolm, you can go first, followed by Calum.
There you go—that is my legal training to maintain eye contact.
I should also say thank you for the invitation, convener, so that I do not seem ingracious; Calum said thank you, and I did not.
I do not have a view on that question. I am not necessarily here to push any particular agenda in that sense; I am relatively agnostic on the substance of what the bill is trying to do. My view is that I would like it to work as a piece of law when it is passed, and I am quite happy to give evidence and views on that. I am happy to offer some thoughts about whether provisions might be workable and what have you.
Broadly speaking, land reform can be an end in itself, or it can be a means to do something. With regard to whether land reform is needed as an end in itself, the Scottish Land Commission has been doing some work on the concentration of land ownership, so it might argue that that points towards an increasing need for diversity of land ownership. There may be other views on the importance of economies of scale and that type of thing; I know that the committee has had evidence from representative groups to that effect.
I offer no view on whether land reform as an end in itself is needed. I might offer the view that we have two land reform acts—the Land Reform (Scotland) Act 2003 and the Land Reform (Scotland) Act 2016—and there have been some issues with certain of the existing provisions to do with community rights to buy. Calum MacLeod probably has some war stories or at-the-coalface stories that he can share in that respect, whereas I have been more comfortable sitting behind a desk offering critiques. I was instructed by Community Land Scotland to do a little bit of work in relation to some of the buy-outs that may or may not have worked, and what happened when court challenges arose. That work has been published on the University of Strathclyde’s website—I can pass it to the committee, if that would be helpful.
However, in a way, that has been compartmentalised and taken away by the separate review of the existing community rights to buy, which I know that the community land team is looking at. On whether that should have happened, and been concluded, first, I am, again, not necessarily offering a view. It perhaps means that some of the issues around tidying up aspects of the community rights to buy are not on all fours with the text of the Land Reform (Scotland) Bill that is before the committee.
In that regard, that is another way for me—unfortunately—to strategically sidestep the question. I will pause there and see whether Calum MacLeod wants to come in. I will regather my thoughts as to whether there is anything else, and I am happy to take any follow-up questions.
I call Calum MacLeod. [Interruption.] I do not know whether the system is confusing. I think that everything is done for you, and you just have to sit there and start speaking—I hope, if broadcasting has got it right—so fire away.
I hope that you can hear me. I am going to sidestep part of that question because I am not here to give evidence so much from a policy perspective. However, if we take as a starting point the fact that Government and, perhaps to a lesser degree, Parliament support greater community ownership and that, to a degree, Government and/or Parliament is trying to support greater diversity of land ownership, it is probably generally accepted that, in order to achieve those two things, land reform, as a policy aim, will be an on-going process that needs to be looked at from time to time.
For example, you mentioned that land reform seems to happen every 10 years. Ten years ago, we had the land reform review group. Quite a number of that group’s recommendations were never taken forward in any substantive way. I make no comment on whether that was right or wrong; it just goes to show that it is very much an on-going process.
From my personal and professional experience of acting for community groups, I know that they are finding it harder to acquire land, especially under the various community rights to buy. I think that it is generally accepted that community rights to buy are in need of reform. As Malcolm Combe said, there are proposals to review the existing community rights to buy. They are long overdue a review, and I think that that should have been done first. The bill would have been a perfect opportunity to look at that.
Some issues might not be addressed by the bill. For example, the extended community right to buy, which I am sure that we will discuss later, might be impacted by a lack of review of the existing community rights to buy measures. Community Land Scotland, with some input from me, published detailed proposals that advocated modest reforms of community rights to buy. There would have been merit in looking at those proposals, and I am happy to forward the details to the committee. However, to answer the question, yes, I believe that there is a need to look at further land reform. What shape that should take is not for me to comment on.
My focus in answering the question has been on community rights to buy, which I am interested in from a technical and legal perspective. However, you mentioned transparency surrounding land ownership and the question of whether the bill will achieve that, which I think that it will, to a degree. That is part of the wider land reform process; it is not just about community ownership.
Was there anything that you were surprised not to see in the bill, given that, since the previous land reform act, new issues have arisen, such as natural capital investments?
That is an interesting question. I thank Calum MacLeod for mentioning the land reform review group—I promise that I did not put him up to that. There are a few points to mention in relation to the group’s recommendations. Compulsory sales orders have been discussed for a while. David Adams, one of the Scottish Land Commission’s former commissioners, was particularly keen on that proposal, but there is no sign of that in the bill.
With regard to prior notification of sale, in a broad sense, the bill might, as a by-product, lead to certain amounts of prior advertisement of land transfers when the lotting provisions could be engaged. It is maybe a bit about-faced with regard to how you get to that position, but there is an element of that.
Whether the bill would have been the vehicle for natural capital, I am not sure. There was wildlife legislation relatively recently, for example.
Natural capital is one of the key new dimensions in the land market. I say that as someone who is more a legal practitioner than a land agent, but, whether it is the most recent trend or big thing, that is clearly a difference from the situation in 2003. Could people have been a bit more alive to that? Sure—but, again, we are talking about this bill and what it does.
11:15I was not necessarily expecting the bill to look at lotting. With regard to what is regulated, I was more expecting the recipient to be given a stress test and a bit of a shake in relation to whether such a transfer was in the public interest for them as an individual, and for them to look at what else they owned and what the result of the transfer for them would be, rather than looking at the situation of someone who was transferring. It is possibly a technical point, but I am happy to come back to it. There might even be human rights aspects as to why that approach could have been a bit better than the other approach. However, be that as it may, the bill is what we have.
Calum MacLeod, do you have any thoughts? Was anything missing from the bill? Did anything surprise you?
I mentioned the need to review and reform the current community rights to buy, which people are finding difficult. For example, the late application provisions under the 2003 act are now essentially defunct. There are also the two newer community rights to buy for abandoned and neglected land and rights to buy for sustainable development. Again, those rights have been proven to be very difficult to use. A review of the existing legislation was needed.
Like Malcom, I was expecting something around compulsory purchase to be in the bill.
Natural capital is still very much a developing and emerging sector, so I tend to agree that the bill would not necessarily have been the place for regulation of natural capital.
There might be some interesting things to come in relation to community engagement and management plans. That might shine more of a light on natural capital and natural capital plans for certain landowners, which, in turn, will allow communities to engage with landowners, particularly in relation to community benefit.
For example, the Scottish Land Commission is doing interesting work on structures for communities benefiting from natural capital. Certainly, the land management plans will increase opportunities for engagement—
We will come back to land management plans later, because a number of committee members, including me, are interested in them.
I thank Mark Ruskell for stopping that line of thought before he trod on somebody else’s toes.
Monica Lennon has the next questions.
Right on cue, I will ask about land management plans. We honestly did not rehearse this before the witnesses came along.
From the written evidence, we know some of Calum MacLeod and Malcolm Combe’s thoughts on the issue. So far, the committee has taken a fair bit of written and oral evidence on land management plans. We have heard from witnesses about a number of concerns, including cost and administrative burden, lack of reference to crofting and commercial sensitivity.
I want to give you the chance to say a few words about the level of detail that should be in the land management plans. What would be appropriate? Is anything missing from the bill in that respect? I can see Calum MacLeod, so I will come to him first. All that I can see of Malcolm Combe is the back of his head.
I generally support the idea of land management plans, but I think that the level of detail will vary from landowner to landowner. You mentioned crofting. The level of detail that might be expected of, say, a large crofting estate will probably be very different from that expected of a non-crofted estate, given that it is crofting tenants who principally have the occupancy rights. As a result, I think that the detail will vary from landowner to landowner. I am aware of concerns that have been expressed about certain things being commercially sensitive, such as future plans for sales or succession, and I can see why landowners have those concerns.
I am not entirely sure about the costs of producing the plans. I am not well placed to advise on this, but I have heard figures of £5,000-plus. That might take us into the question of compliance, if the fine for not producing a plan was roughly the same as the cost of producing it. There might be specific concerns about that.
To go back to the detail in the plans, I mentioned natural capital earlier, and I think that it would certainly benefit landowners and community groups alike to include that. There tend to be a few myths surrounding the money that can be made from natural capital projects, so it would be appropriate to put that type of thing in the plans.
Do you have an opinion on whether that level of detail or that sort of requirement—with regard to, say, natural capital—should be in the bill or addressed later in secondary legislation?
I do not have a view on that.
Your written evidence says that the size of the landholding for the management plan threshold is “arbitrary” and requires “further explanation”. Given that we are at stage 1, what explanation would you like from the Scottish Government? What is your view on the threshold size?
As a starting point, I find it quite curious that the lotting provisions, for example, apply to sales of only over 1,000 hectares. That seems to be slightly inconsistent. I would have thought, even for simplicity’s sake, that having the same threshold for the plans and lotting would make more sense. There seems to be a bit of a disconnect, given that lotting arguably interferes with individual property rights, and yet the threshold at which it applies has been set lower than that for the land management plans. I find that a bit curious.
This is perhaps an obvious point but, in some communities, a smaller-scale landholding might reflect a greater concentration of land ownership and, ultimately, power. The Scottish Land Commission has undertaken work that looks at considerations other than just naked acres and hectares; it looks at local monopolies, for example, and how much employment is connected with a particular landholding. Such considerations are also relevant.
Malcolm Combe, do you agree with Calum MacLeod? I note that your written evidence says that your inclination would be to reduce the trigger value to 1,000 hectares. Have I got that correct?
Yes—you have. I will circle back to some of the other stuff that Calum MacLeod spoke about earlier, but I agree with that point. However, whatever figure you choose is a bit like putting your finger in the air. I say that as someone who teaches in a higher education institution rather than as someone who is directly engaged in land management, but there will have to be a line somewhere.
What I do not necessarily see from the outside looking in—again, this might be my ignorance about land management—is why there needs to be a difference between the 3,000 hectare threshold, which is 1,000 hectares on an island, and the 1,000 hectare threshold. It could be easier for all parties if there was a degree of uniformity. I am not sure that I have seen anything particularly convincing to explain that difference. There might be an islands-related reason—I know that there is islands legislation—but it could perhaps be a bit easier to have a single figure for all regulatory effects. However, I have no strong views, and I do not think that I am qualified to say what the figure should be.
That is helpful. Would it be helpful for the Scottish Government to clarify some of the rationale behind that?
It certainly would not be harmful.
I have a final question for Malcolm Combe. I wanted to talk about natural capital, but that has helpfully come up already. In your written evidence—[Inaudible.]
Hold on, Monica—we lost your sound. We heard you say, “In your written evidence”. If you would like to, you can continue your train of thought from there.
My apologies, convener. I am not pressing any buttons, but I have been muted and unmuted a few times. I will go again.
Malcolm Combe, in your written evidence, you highlighted the concern that the proposed scheme for composite holdings might lead to some difficulties in application. Will you please set out your concerns?
It is complicated. The gist of it is that there needs to be a means of preventing someone from patchworking their holdings to dodge regulation, essentially.
There have been some concerns about the way in which the definitions have been put together. I know that a retired solicitor, Neil King, has commented on the way in which the bill has been informed by the register of persons holding a controlled interest in land regime, and it is quite tricky to get your head around that. I say that with complete respect to the bill team, because it has had a difficult task, but the issue is just about whether there are other ways.
There is also a query about whether the scheme will be about contiguous holdings only. If someone had one lot of land in the west and another in the east, and if they had another holding that was relatively proximate but not actually abutting, would that holding be included in the composite scheme?
As I said, the question is tricky. I have certainly not come here with a drafting solution—apologies for that. However, there are perhaps accessibility issues, and then there is the effect of the scheme when it comes to pass.
11:30
It feels as if this might be an area of the bill that needs further work and amendments. However, to reinforce the point, do you believe that the Scottish Government needs to be clearer in setting out its aims and objectives in relation to land management plans, including what their purpose really is, what value they will add and who they will benefit? Do we really understand that, based on what we have right now?
To come back to the land management plans and tie in with some of the stuff that Calum MacLeod said, I note that the plans seem to be driving towards land being used in a more sensible and pragmatic way. Some landowners in Scotland have certain obligations that they need to aspire to—they are community groups that have already negotiated the right to buy under part 2, part 3 or part 5 of the 2016 act. They will already have acquired land in the public interest, they will have sustainable development built into what they do and they will have local accountability and what have you. In this time when we are considering the climate crisis and various other issues around natural capital or whatever, it seems sensible to consider having certain nice things—that is a simplistic way of describing it—in relation to, or putting obligations on, other landowners that might not otherwise be there.
I appreciate that a regulatory step will need to be taken that is not there currently. That comes back to the very first aspect of the initial question that you put to Calum MacLeod. When we go from nothing to something, and when we are introducing whatever level of detail there is, we need to make sure that we do not burn any good will too quickly. It is therefore important to pitch the approach at the right level.
On that, Calum MacLeod pointed to the idea that, if the cost is going to be £5,000 and the fine is also £5,000, that raises the environmental law concept, or wicked problem, of the rational polluter. If someone saves money by polluting, as compared with the fines that are being levied, we end up with someone who does not bother complying with the law. A degree of interaction is therefore needed between whatever penalty applies and whatever costs are expected.
I am sorry to once again shunt back to something from earlier in the conversation; I have no doubt that Calum MacLeod wants to say tons of things, too. You asked what the level of detail should be and whether that should be in the bill or in regulations. I know that delegated lawmaking has been an interesting discussion point of late. I think that I said on record that some of the provisions on secure, or 1991 act, tenancies in what became the Land Reform (Scotland) Act 2016 should have been on the face of the bill. They were saved for regulations, and I am not sure that that was the right way to do it.
However, I am quite relaxed about the finer details of what is to be in a land management plan being in delegated legislation. That level of detail may be something that should be thrashed out in a specific, more focused consultation exercise, if that could be run.
I apologise for giving a wide-ranging answer. I am happy to trammel some of my thoughts as required.
No—that was really helpful; I thank Calum MacLeod and Malcolm Combe. I noted down the term “rational polluter”, which sounds as if it will be helpful for my endeavours on ecocide law. I will hand back to the convener.
That is perfect. Thank you.
Time is always against us, and I think that we are only on question three of very many and only on the third committee member who wants to ask a question. I am looking for brevity from now on.
Before I come to the deputy convener, though, I have to say that I am slightly confused: I think that you are both suggesting that the land management plans and lotting ought to have the same threshold—unless I have got that wrong. However, I cannot work out whether you are suggesting that the threshold needs to be less than 1,000 hectares, or whether 1,000 hectares for both is right. Can you comment very briefly, Malcolm, and then Calum?
I have no view.
You have no view. Calum?
I do not have a view either. It just made sense for there to be some consistency.
Okay. So it is about keeping it simple.
Deputy convener, over to you.
Good morning. Having considered the provisions in the bill, are you sufficiently clear about the intent of the land management plans?
To the extent that you can glean it from the bill, I think that the only thing that will definitely need to be in the regulations is the duty to engage and to consider any request by a community to lease land. Unless I am mistaken, I think that that is the only active steer in the skeleton of the bill. There are nods to other important documents such as the access code and deer management plans that might give you something of an idea of the flesh that might come later.
As for whether there could have been more elaboration, perhaps so, but I am not sure what the drafting would have looked like at this stage. It would probably need someone else with different expertise to tell you exactly what the drafting would be, but the tenor of what the provisions are getting at is not something that discomforts me at the moment.
I do not have much to add. Clearly, more detail could have been included, but I understood the tenor of what the bill was trying to get at.
Malcolm, I take it from your earlier comments that you think that some of the detail with regard to the land management plans might be better dealt with in secondary legislation. Is that correct?
Again, I am comfortable with that in this context, yes.
Do you think that the intended five-year timeframe for land management plans is the correct one?
Again, this is possibly a bit of a finger-in-the-air moment, but I see no particular reason why not, although others who are having to deal with this might well say that it is quite a sharp turnaround. I know that, again, that is probably not the most satisfactory answer, but I think that it is more for people who disagree with it to explain why than anything else.
Okay. Calum, do you have a view on the timeframe? We have had some evidence that a five-year timeframe for a land management plan is quite short, given how long land management can take.
I would defer to those with experience in preparing these types of things. The timescale seems reasonable, but I do not really have the qualifications to comment.
Sure. I appreciate that you are a lawyer, not a land manager.
I would add that the five-year period marries up with the length of time that a community interest in land stands under part 2 of the 2003 act. If a community body has to face the same churn every five years in order to keep a registered community interest alive, that might be why this timeframe was chosen, although others might say that that was a false analogy.
Okay.
Let us say that the land management plans are for five years. Given that they contain obligations that the landowner is responsible for taking forward, do you think that, if the land changes hands and is sold and purchased by someone else, that person should inherit the obligations in the land management plan, if the sale happens before the date when the plan was due to expire?
That is a very interesting conceptual question. In property law terms, you would not expect to take on the obligations of your predecessor in title unless there was some kind of registered title condition on the land or something else that was showing up on the public register. I guess that that means that the land management plan would have to be suitably publicised in a way that would allow anyone to have fair notice.
You would also probably need to consider having a scheme that is akin to the Lands Tribunal for Scotland’s oversight for variation and discharge of title conditions—which is in part 9 of the Title Conditions (Scotland) Act 2003—to deal with any such situation. However, I have not thought about that particular question. It is a right good question, if you do not mind me saying so, and I will give it some thought.
Calum?
I agree with Malcolm. It is hard to see how you could make those types of obligations automatically binding on successors, as that would be against the general principles of property law. It might also depend on the nature of the land management plan. It is an interesting concept, though.
It may go against the existing perception of how property law is managed or is traditionally taken forward, but that does not mean that the law cannot be changed. For communities that have been engaged in a land management plan with a landowner, and with which a significant amount of time has been spent to identify their priorities, to find that the land is sold two years later—and that the new owner has decided that they will do something completely different with it—makes them feel quite disenfranchised and that the process is worthless.
I completely agree with what you have just said, but there are ways in law to have designations over land—whether it is a Ramsar site, some kind of tree preservation site or a site of special scientific interest—that will stick for any incoming owner.
I do not mean to undermine the question, but my reading of the provisions in the bill is that penalties would only apply for not producing a land management plan. There is nothing in the bill in relation to not complying with a land management plan—we will wait and see whether that will be fleshed out at the regulation stage.
If someone comes in as a new owner and does not like the current land management plan, they will not face any penalties if they do not abide by it; they will just have to wait until the new one comes along. I am not sure—and I apologise for not knowing this off the top of my head—whether a new owner would just have to do their land management plan at that point or whether they would get to wait for the other one to expire. That possibly makes the question a bit otiose, unless the regulations say that existing land management plans bite or that land management plans bite in a different way.
As I have said, from my reading of the provisions, the penalties only apply in relation to the existence of the plan rather than in relation to compliance with the terms of that plan.
Another way to look at it is, what is the point of having a land management plan if the landowner chooses not to implement any of it—
Quite—
—and if he produces another one five years later to make sure that he does not receive a penalty?
I will leave it there.
I know that Kevin Stewart wants to come in, but before we move on, I will add that, in many cases, land management plans will be based on the principle of people running a business—they will have developed a land management plan to dovetail into their business and meet with the community needs where possible.
If my business was farming, for example—I have already declared that I am a farmer—my land management plan, if I were required to do it, would be about farming. If I sold the land, somebody might buy it to plant trees to meet the Government’s objective to plant trees, which might not meet the community’s need. By making a land management plan enforceable for a period of time, will you distort the land value? If so, how will you compensate it? I am saying that as a surveyor as well.
11:45
That would have to be thought about closely.
We already have part 4 of the Land Reform (Scotland) Act 2016, with the community engagement exhortation that is supposed to apply when we make such a big change to land use that it will affect a community, so it may be that that aspect is catered for elsewhere, and it is more a case of tightening that up than trying to deal with it here in this bill.
If you were to make it so that someone who came in was unable to change anything that would skew the value of the land, that would need to be thought about closely.
I agree with that point: it needs careful consideration.
I have a further observation, harking back to a point that I made earlier. Could failure to comply with the land management plans tie in with the community right to buy abandoned or neglected land or the right to buy for the purposes of sustainable development? It could be a relevant factor if a community body wanted to pursue an application under one of those community rights to buy as a result of a landowner failing to comply with the land management plans. Could the two pieces of legislation dovetail a bit better?
We will get into non-compliance later, but I can see that interfering with the land market will come at some cost, and I am trying to figure out that cost.
Previous witnesses have suggested that there could be a connection between land management plans and local place plans in meeting communities’ needs. What do you think about that, gentlemen?
I may sound like a bit of a stuck record, but I am not sure that I have strong views on that. It strikes me that it would be sensible to have some kind of integration with those documents. Obviously, however, that goes into a different regulatory sphere than land governance directly; it concerns the planning side of things more. I am happy for some kind of synergy to be set up; it would just need to work appropriately, ensuring that there was no duplication of effort and so on.
I, too, will sidestep the question. I agree that it makes sense to have some level of synergy between the two areas of legislation, but that is not within my area of expertise.
Mark Ruskell has a series of questions.
I wish to ask about those who can allege a breach of a land management plan. Malcolm, you are saying that there is
“a closed list of who can clype on the owner of a large land holding if there is thought to be a breach”.
Do you think that the current balance in the bill is correct? Are there pros and cons in having a bigger list or a smaller list?
We are talking about new section 44E of the 2016 act, with the closed list. There are benefits to having a closed list in managing workload and in things not growing arms and legs or whatever. If who is able to “clype”, as I put it in my written evidence, is restricted, that will have an effect by hamstringing what can get to the land and communities commissioner’s desk.
Also, unless I am very much mistaken, the land and communities commissioner is not able to do anything of their own motion, so they have to wait for a report. Combined with quite a tight list, that necessarily restricts what can happen. There are benefits to having a short closed list. It brings certainty, it will act as a sift, there will be a degree of quality control and it might prevent duplication and so on. I can understand the argument in one direction but I can also understand the argument in another. As a starting point, maybe a closed list is fair enough, but I would want to be agile with regard to adding to the list if the situation seems to lead to a logjam.
I do not have a view on the correct balance. Malcolm Combe summarised the pros and cons pretty well. It might need to be looked at in the future.
I want to go back to the rational polluter argument. You mentioned the register of controlling interests, and I think that there is a similar fine of about £5,000 in this case. At the time that we discussed that in Parliament, there was a view that £5,000 is not a lot of money. However, there is a reputational concern when someone is hit with such a fine, which might have other implications. What are your thoughts? I am not aware of whether the trigger under the register of controlling interests regulations has actually been applied.
I do not know that it has.
I do not know whether any such cases have come up, so I am not sure whether the fine is a deterrent.
That is a good point. You would hope that public shaming, if that is the correct way to describe it, could lead somebody to change. However, if somebody just wants to tough it out and they are happy to pay the relatively small fine and get on with it, that would be that. In my evidence, I drew attention to the level of fine for private landlords for not registering with the local authority. With regard to compliance with regulations for houses in multiple occupation, you are looking at a fine of £50,000, rather than £5,000. Landlord registration was introduced in 2004 under the Antisocial Behaviour etc (Scotland) Act 2004 and the fine was increased in 2011. There have been unsuccessful human rights challenges to that regime in relation to a landlord not being able to charge rent following registration issues, and that scheme has been fine—in the sense of being okay rather than in the sense of a financial penalty. Therefore, whether £5,000 is the right figure is probably for others to decide, but I wonder whether it could be set a little higher—just in case someone does try to tough it out.
It would be a real concern if the cost of producing the plans outweighed the fines. For some large landowners, public shaming would be enough of a deterrent, but there is a reasonable concern that that would not be a sufficient deterrent for some other landowners. I wonder whether there is an opportunity to look at cross-compliance with regard to agricultural subsidies, which might be a better approach.
Other members might want to come in on that point. Earlier, we talked about thresholds, but, in the evidence that the committee has received, there has been quite a consensus on the importance of sites of community significance. It is not a case of saying, “Here’s a threshold. Either you fit within it or you don’t,” because there are sites that are of huge significance to communities, particularly rural communities, so it is important to provide for the local context. Calum, do you want to comment on that?
Clearly, any thresholds that are based only on hectares will be quite a blunt tool when the situation is a lot more nuanced. There will certainly be sites that are within that particular threshold, but there might be a real public interest, so I think that the matter should be looked at. It is not for me to say whether the bill strikes the right balance, but there is a lot more nuance to the situation than just looking at it in terms of hectares.
I agree with Calum. Obviously, when you draw a line somewhere, some people will fall below that line. A couple of weeks ago, I was speaking to a journalist who was looking at a community in Scotland that has been affected by certain land management decisions that fall below the thresholds that would apply here. That is an issue that the bill would not resolve.
At the start, I mentioned what is not in the bill, such as compulsory sale orders and a reworking of the community right to buy. Maybe such measures could lead to a different way of targeting some of those flashpoints. On the question of whether making huge changes to this bill to address that would be in scope, I would be surprised if you could do something at this stage.
In England, the Localism Act 2011 covers registering assets of community value. That does not force a sale; it is just a pause in relation to transfers. We have our own opportunities to register a community interest in land. There are ways to at least isolate some of those particular strategic resources, but, as I say, I am not sure what more you can do in relation to this bill.
Thank you.
I will follow up on some of the matters that Mark Ruskell was pursuing, including the narrow list of individual bodies that could make a complaint in relation to a breach under a land management plan. A possible expanded role for the land and communities commissioner, which is to be quite limited at present, was mentioned.
I will split my question into two parts. I want to think about a proactive role that the land and communities commissioner could have in an area of prevention. Would work to encourage best practice in the development of land management plans be something that the commissioner would be well placed to support, perhaps by identifying and sharing best practice where it becomes evident, and by identifying thematic areas of weaknesses in plans? As the bill stands, I am not sure that the land and communities commissioner would be empowered to do that. Would that be a positive thing?
Thank you for the question. It is an interesting one. The Scottish Land Commission has been around for six or seven years now. Under statute, the outgoing tenant farming commissioner had certain roles in relation to promulgating codes of practice. The Land Commission was also able to promulgate certain protocols in relation to other aspects of community land. That perhaps offers a degree of precedent to taking an extra-statutory approach. It is not on the face of the legislation, but the Land Commission was able to use its architecture to allow for guidance to be issued.
I have already mentioned the idea of the land and communities commissioner having a more active role, whether it is doing things of their own motion in relation to investigation. I suppose that that might change the dynamic of the Land Commission to an extent—I know that there was discussion about that in a previous evidence session—and move it away from its current position of not going one way or the other towards being more of a regulator, almost. You would need to think about it carefully, but if you wanted to put that in the bill, you could clearly do it.
That was a bit of a mixed answer again—sorry.
12:00
You are perhaps suggesting that there would be an implicit ability for the commission to do that, but not an explicit power. We might want to consider having an explicit power in the bill.
You could do that. As I said, the fact that you would have certain protocols in areas where the Land Commission did not necessarily have that explicit power in the past would perhaps allow you to be a bit more relaxed, but it very much depends on the direction that the Land Commission takes.
Okay. I appreciate that. Calum, will you comment?
Personally, I think that the land and communities commissioner should be given the power to do that. I find it slightly curious that they are not accountable to the Land Commission. I appreciate that moving the Land Commission into more of a regulatory role needs to be thought about very carefully, but I find it slightly curious that the role is being treated as a standalone. It might be more conducive to make the land and communities commissioner fully accountable to the Scottish Land Commission.
That is interesting. I said that my question would be split into two parts. There has been preventative work to promote best practice and prevent unintended things from happening in order to raise the quality of land management plans, but I am conscious that we have spoken about the benefits and drawbacks in relation to only a very narrow list of those who can allege a breach.
Have you considered whether there should be an explicit power whereby the land and communities commissioner would have a mix of light-touch and deep-delve, proactive approaches to making sure that there is adherence to land management plans, for lack of a better description? They could randomly pull out five or 10 examples, without any breach having been identified, and go and have a look to see what is going on. Other regulatory bodies take a similar approach. The commissioner could take a risk-based approach to compliance with land management plans. If they become aware of concerns, whether they report them or not, they should perhaps have a duty to investigate them.
I suppose that, in asking that question, I am taking the next step in considering how the power might be exercised, but the heart of it is whether there should be a power for the commissioner to do some proactive investigatory work without the reporting of a breach.
My personal view is that there should be such a power. I see it as one of the powers that should sit with the land and communities commissioner.
Okay. That is clear. Mr Combe, will you comment?
I am minded to agree with Calum MacLeod. There are different approaches to enforcing such rules. You can have more of a swashbuckling regulator or you can design something that is based on someone applying. As an example, I am thinking of the deposit protection scheme in the housing law field. In that case, someone has to apply if there has been a breach, and nothing will happen if no one applies. It depends on what you think is appropriate for the context. However, I am minded to agree with Calum.
It is worth putting on the record that I think that all committee members want to see a commissioner who works in partnership with landowners across the country and whose first approach will be not to identify breaches and look at sanctions but to build up the relationship. However, it may be beneficial for them to have that explicit power.
My final question is about whether the obligation on landowners is simply to produce a land management plan, irrespective of its quality or whether it is complied with in a meaningful way. We have heard reference to that already. For clarity, proposed new section 44B(3)(c) of the 2016 act requires the land management plan to set out how
“the owner is complying or intends to comply with ... the obligations set out in the regulations”,
and proposed new section 44E allows specific persons to allege that there has been a
“breach of an obligation imposed by regulations under section 44A”.
The fact that I am asking this question might lead to the conclusion. Is the drafting adequately clear to ensure that there are obligations to produce and to comply with a land management plan? If not, what suggestions do you have about how we can improve that section of the bill?
I do not think that the drafting is adequately clear but, unfortunately, I am not able to give you a suggestion about how to improve it. That needs to be looked at.
I turn to Malcolm Combe. Should the provision say not only that a plan must exist and be complied with but that it should be of appropriate quality? I appreciate that that is a hard thing to measure. It would be easy, surely, to develop and to secure compliance with a threadbare plan, but that would not provide a qualitative approach to ensuring that the spirit of the legislation was complied with.
Is that section clear enough? How should it be changed?
I would need to take that away and think about possible drafting tweaks, rather than shoot from the hip on that today. I am happy to think about that.
I agree that we must ensure that it is not simply an empty threat—or, rather, that all aspects of a land management plan must be meaningful. If someone could churn out a threadbare plan, that would not necessarily make much of a difference on the ground.
I have no further questions, convener. I stress that I do not anticipate that most landowners would produce such a plan, but when we legislate, we have to legislate for not only the best landowners but those who might be remiss in meeting their obligations in that regard. It is important to put that on the record.
I am sure that you are right. Landowners of all stripes, whether they are private landowners, public landowners or community landowners, must all fall under the same obligations.
The next questions come from Douglas Lumsden.
We move on to section 2, “Community right to buy: registration of interest in large land holding”. As the bill stands, if a landowner owns 1,000 hectares and he wants to sell all or even part of that land, he will have to go through a process to give communities the right to buy that land. Even the sale of a cottage on part of the land would trigger that process. Do you think that that is right, or do you think that the bill should be changed to allow smaller chunks of a large landholding to be sold?
I will come to Malcolm Combe first, as he is here.
I would not mind there being some kind of de minimis, or small exception, subject to the relevant community also having the chance to say, “Actually—no. While you think it might be de minimis, we really like that bit of land. That site could be strategically important.”
From the point of view of regulatory burden, it seems as though it would be quite a burden to mobilise everything in relation to something small that was unlikely to be of interest to local community groups, but I am conscious of the risk of allowing something that really mattered to be missed out on because of someone playing on that, if that makes sense.
Yes. Even if it was possible to sell only 1 per cent of a holding without going through the community right to buy process, the community might want that 1 per cent. I guess that the issue is how we strike the right balance. What could we put in place to accommodate small transfers without making it an overburdensome process?
Quite. Perhaps a notice or a counter-notice could be used. If someone were to do something below some threshold or de minimis level—whether that be a percentage, a fixed figure or whatever—they could, if they would otherwise have been able to benefit, get some kind of counter-notice. I am not sure what that would look like, but I think that it could be workable. There are examples of counter-notice approaches in different types of legislation—landlord and tenant legislation and so on—so it could work.
Calum, do you have a view on this?
I agree with what has been said. I can see the argument for some de minimis level or exception, as well as for what Malcolm Combe has suggested of having the ability to serve a counter-notice if the site really is of special interest. Most of these smaller things are unlikely to trigger a counter-notice, so I could see something along those lines being quite workable.
You have both talked about the community right to buy process being under review. Do you think that the bill adds complexity to that side of things, or does it provide an opportunity for the Government to get both things hand in hand and working seamlessly? Calum, I will come to you first on that one.
I made my views on this issue known earlier. The community right to buy review should have been in place by now, and I think that it would have been much more helpful had it been well under way.
I do think that this is complex; indeed, I had to read and reread the provisions myself a few times. On the specifics, I said earlier that communities are finding that the late registration provisions surrounding the community right to buy are not working for them, so the bill will potentially address some of the concerns in that respect. For example, for community groups concerned about not being able to use the community right to buy at all, whether late or otherwise, they will receive prior notification about certain sales and a potential opportunity to exercise a right to buy.
However, I think that this particular amendment to the community right to buy legislation is only going to allow for a community purchase in certain very limited circumstances, and I think that community groups will find it pretty difficult to use for a couple of reasons. For a start, as I mentioned earlier, the late registration provisions have not actually been used since around 2017. There is an understanding that almost every late registration under the community right to buy is not going to be held to be in the public interest and, in effect, the mechanism can be used only when a community body is already compliant with the community right to buy provisions—that is, the application has been drafted, but the community has almost had no time to submit it. In any case, the process will be well under way. What it means is that most late applications are actually defunct.
What I might query about this new proposal to modify community groups’ ability to be given this opportunity is whether it will be treated almost as a late registration. If so, I question whether, in reality, there will be many opportunities for community groups to be successful. Also, will ministers have to be satisfied that there is a reasonable prospect of the application being registered, which effectively means that they will be almost prejudging it? I am not sure, but perhaps there could be some clearer statement that, under these new provisions, ministers would be able to invite a community body to submit an application, and that would, for the purposes of the final decision making, almost be an acceptance that there was greater public interest in such an application. I would be concerned that the public interest threshold might otherwise be too high to meet, as is currently the case with late applications.
12:15My only other comment is on timescales. I am not saying what the appropriate timescale should be, but it strikes me that 40 days for a community group to submit an application from a standing start, where ministers might think that there is a real public interest in a community group submitting such an application, could be challenging, to say the least, especially where funding is an issue. I appreciate that a balance needs to be struck in relation to the landowner’s rights as well, but the issue should be carefully considered.
My concern overall, without looking at the community rights to buy in general and without aligning that with a wider view of the community rights to buy, is that the new provisions might just be another community right to buy that community groups find too difficult to use.
I was going to ask you about the—
Sorry to cut you off in mid-flight. I see Rhoda Grant sitting quietly on the screen, as she has done for this whole evidence session, and I am really worried that, as the clock ticks down, she will not get to ask her questions. I would then have to deal with that. Therefore, I would be grateful if we could have succinct questions and answers where possible, then no one will be upset.
On the timescales, the bill has 70 days—40 plus 30. Calum, you were not sure whether you could give a view on what the timescales should be. Malcolm, do you have a view on that?
Not particularly. I fully agree with everything that Calum said, which has saved me from repeating any of it. The timescale could possibly be a bit longer to allow the community a bit more breathing space, but I am not sure just how long that should be.
Thanks.
Thank you. Sorry, Douglas—I should have waited until you had finished. I apologise.
I bring in Michael Matheson.
Does the transfer test, as proposed in the bill, adequately take into account public interest?
I have not thought that it does not at any point, and I am now suddenly doubting myself because you have asked the question. I think that it does. I will scrabble through my notes to see whether I have anything to counter that, and I will let Calum come in. That is my succinct answer, anyway.
I think that the test refers to the wider sustainability of the community rather than the public interest. The transfer test is perhaps a step away from the previous public interest test that was considered during the consultation. I do not think that the bill defines or refers to public interest as clearly as, for example, the community rights to buy.
Would it be helpful to have a clear and explicit term in the bill, which states that the transfer test is actually a public interest test, in the way that the Land Commission recommended?
I think that it would. If that is the Government’s intention, it would make sense to be a bit more explicit about that.
I will add that I do not object to that, but even if it was not in the bill, article 1 of the first protocol and the deprivations controls should be allowed only when they are in the public interest. The meaning would be teased out by a different means anyway, but I would be happy for it to be in the bill as well. I thank Calum for reminding me of that provision.
Calum, you mentioned the provision of community sustainability, which I suppose begs the question of what community sustainability is.
Indeed, that might be a difficult thing to define. That is part of the reason why I think that an express reference to public interest there would have been more helpful.
I need not have been worried, because we have now got to Rhoda Grant. It is time for your questions, Rhoda.
That evidence was really interesting. Both of you spoke about a compulsory sale or compulsory purchase test. Would that help to deal with some of your concerns about late registration and the community right to buy?
It is certainly an issue and, based on previous consultations, I was a bit surprised that it did not find its way into the bill. It would address some of the concerns that community groups have around not being able to organise themselves quickly enough or use late registrations, so the Government might wish to reconsider.
For brevity, I endorse Calum’s comments again.
Thank you—I appreciate that. Would anything else make late registrations easier? I appreciate that some communities do not want to register until they see land changing hands. Could something be done that would simplify that process and make it easier?
Community Land Scotland published proposals that the committee might be aware of—I am certainly happy to share them. It suggested that the community right to buy could perhaps be turned into a two-stage process, with a lighter pre-registration step and then a secondary step that would allow for a late registration. There could be an express provision that the fact that the community body had already taken the earlier pre-registration step should be taken into account for the purposes of determining whether there was public interest in the late application.
As the committee might be aware, the issue with the community right to buy is that it is a pre-emptive right. Almost all the work is effectively front loaded for what is a very hypothetical situation, unless you do a late registration, and the evidence is that late registrations almost always do not succeed. Community Land Scotland put forward proposals that are worth looking at.
Just to jump in on that, I have had the benefit of speaking to Calum and Community Land Scotland, along with the Scottish Land Commission, about some of those proposals. I thought that they were workable and could have worked in relation to the part 2 scheme as it stands.
As has been mentioned, there is an occasional perception that a community registering a part 2 right to buy could be seen as inflammatory and changing existing relations with the landowner. However, given that the community must do that, it perhaps find itself painted into that corner. Therefore, having something that could operate as a salve in that situation would be beneficial. I do not know exactly what that could look like and whether it could be catered for in the bill or whether we have to wait and see how the community right to buy review, which is happening at the moment, pans out.
Could I ask one final question, convener?
Of course.
You both spoke about whether buyers would take on land management plans. We also talked about community purchases, which must have sustainable development at their core. Do you believe that private buyers are being held to different rules and regulations? Would their having to sign up to sustainable development and a land management plan before they purchased land make things more equal, or would that be too unwieldy?
Do you mean community landowners who have purchased under the community right to buy?
Well, they are being held to a certain standard, in that they have to show that their development is sustainable and in the public interest. Should private landowners be held to such standards to the same degree, and would doing so level the playing field between community and private buyers?
I do not necessarily have a view on that policy point. I guess that the community right to buy is a form of compulsory acquisition; of course, most community buy-outs do not take place under the community right to buy, so perhaps not all community landowners will be subject to the public interest test. I do not necessarily have a view on whether there is a two-tier system in that respect.
I agree with Calum. The issue, in practical terms, is that if a community landowner that had benefited from a buy-out under the land reform legislation were to slip from their standards, clawback provisions would operate. The sort of sanction that was applied would depend on other landowners, as I imagine that you would not be able to have the same practical sanction. However, just looking at the bill in front of us and given how important land can be to so many people who are not its owner, I would certainly not be agin having something else in the land management plan or, indeed, in the regulations that follow. That could be worth while, but I will leave it at that.
Thank you.
I have a few quickfire questions to end with. Mark Ruskell said that a £5,000 fine did not seem very much, but I think that it might be a huge amount to very small farmers and landowners. Is there an argument for scaling the fine against the assets held and the size of the management plan? I am just thinking of ways around that, because £5,000 is going to be a massive amount of money to small-scale landowners, though not to some of the bigger investment companies. Would you go for scaling—yes or no?
My answer would be, “You could do that, but”. I remember the shaggy-dog story of a rich footballer who was quite happy to park his car wherever in the city that he was working in, because he had money and was happy to pay whatever the fine was. You could have a scaling system, though—Switzerland has done that in relation to fines for speeding—but it would depend on how you fancied doing it and then making it workable.
Calum?
Again, I am not sure about that. I can see the attraction, but I do not know whether having a scaling system is just another way of adding complexity.
Some people get fined according to the size of their assets. Indeed, I think that speeding fines, in particular, are graduated.
Anyway, I will move on to lotting. We have heard lots about small-scale sales being stopped, and about how the move might affect crofting estates where a house under a crofting tenure or, indeed, a croft itself could be sold and purchased under the statutory procedure. Could small sites that are not on the register of community interests in land still be transacted? Would that allow people to buy plots for, say, their horses or their garden ground that owners regularly look to sell?
What do you mean by smaller sites in terms of lotting?
I mean that selling a couple of acres—or 10 acres—to allow somebody to do something that they might want to do might trigger a lotting process. If the plot was not subject to community interest or in the plan, surely that sort of sale should be encouraged and allowed to go on to allow the community to flourish.
Are you talking about situations in which larger landowners are looking to acquire land?
No, I am talking about larger landowners divesting some of their holdings to allow communities to flourish. When we visited Atholl Estates, we heard that it was worried about what would happen with small-scale transactions, and we heard the same from Buccleuch Estates.
I may have misread the provision, but it is my understanding that a lotting decision would be required only in cases when a transfer was over the threshold of 1,000 hectares.
We are saying that lotting would be triggered if land was to be sold. I am worried that that would stop small-scale transactions, and I am asking whether there is a way around that.
12:30
We mentioned a de minimis threshold for that type of situation. I certainly think that there is a good argument for that. Malcolm mentioned the idea of a counter-notice being served if it turned out that land was of real community interest. Something along those lines could be workable.
I am happy with all that Calum has said. The only other thing that I might throw in is the concept in insolvency law of gratuitous alienations, which refers to a situation in which someone has alienated property in a way that has been designed to defeat creditors, or something like that. You might want to consider whether there could be something in the bill to prevent abuse in the sale of land, although I am not sure what that would look like. Gratuitous alienation is far more calumnious than the situation that is at hand, but if someone were genuinely to try to defeat the policy goals of the legislation by engaging in a series of those transactions, that could be problematic. You might want to have some kind of safety valve for that.
I do not quite understand whether the proposed land and communities commissioner would fall within the Land Commission, or whether they would have a separate role. Calum MacLeod suggested that it might cause some problems if the Land Commission took on a regulatory role. Are you in favour of keeping the role of the land and communities commissioner completely separate?
I am not sure that I said that it would cause problems. I do not think that it should be kept as a separate role. In my view, it would make sense for the proposed new commissioner to be ultimately accountable to and part of the Land Commission, but I accept that any pivot in the role of the Land Commission would need to be looked at quite carefully.
I can understand why the proposed land and communities commissioner would be set up on similar terms to the tenant farming commissioner. In pure drafting terms, that probably makes sense, but it will mean that it is sui generis—unique—although the tenant farming commissioner is also unique. The proposed commissioner must also be able to be held to account.
The tenant farming commissioner has specialist skills as part of his role. What specialist skills should the proposed land and communities commissioner have? Should one of the requirements be that they have not been a large landowner, and do you agree that we should exclude someone on that basis?
That is a tough question, especially given the suggestion that someone with a current big landholding should be disqualified. Clearly, special skills are involved in the role. People would be stress tested in the public appointments process. Making it a requirement for the commissioner not to have been a large landowner could lead to a perception that you were sculpting the pool.
It would never work to force someone to sell their landholding just to take on the role. Would you exclude them or not?
I am not sure. I do not think so.
I am not sure that I would exclude large landowners from the role. I think that the role would require specialist skills, although it is much more difficult to define what those specialist skills should be in comparison with the tenant farming commissioner. For that reason, I think that it would be unhelpful for the role to stand apart from the Land Commission. There could be a case for making the proposed commissioner accountable to the Land Commission and not quite as standalone as the tenant farming commissioner is, because their job and the skills required for it are much easier to define.
Proposed new subsection 11(3A) of the 2016 act, which is brought in by section 6 of the bill, states that there is a necessity for “the person appointed” to have
“expertise or experience in—
(a) land management, and
(b) community empowerment.”
I would be happy enough for something else to be added to that, but I think that that should probably be okay.
So it should be the best person for the job, whatever they have done in the past, and whatever their politics?
I would be happy with that.
Perfect.
That brings us to the end of the session. I apologise for the quickfire questions at the end, but the clock has been ticking all morning. Thank you for giving evidence.
We now move into private session.
12:36 Meeting continued in private until 12:58.