Hansard

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.