Meeting of the Parliament 16 March 2016
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 is likely to be caused by not consenting to an application under part 5, while safeguarding the rights of individual landowners and tenants.