Hansard

I am content to support amendment 6 if the committee is minded to approve it, but I should point out that in practice its effect would be minimal. In deciding whether to consent to an application under part 5, ministers must act in a way that is compatible with the European convention on human rights. Therefore, even if the sustainable development conditions are met and the procedural requirements are complied with in respect of an application, ministers cannot consent to that application if to do so would be incompatible with any person’s rights under article 1 of protocol 1 to the European convention on human rights. One of the tests of compatibility with article 1 of protocol 1 is whether the transfer of land would be the least intrusive way of achieving the benefits to the community regarding the landowner’s rights under that article. If amendment 6 is agreed to, ministers will be able to consent to an application on the basis that it is “the most practicable” way of achieving the desired benefits rather than “the only practicable way”, only if they are satisfied that the transfer of land is the least intrusive means of achieving those benefits with regard to the landowner’s rights under article 1 of protocol 1. In theory, there might be circumstances in which ministers can consent to an application to transfer land when such a transfer is the most though not the only practicable way of achieving the desired benefits, but I have not yet identified any such circumstances. Nevertheless, we are happy to support amendment 6. Although amendment 112 is not immediately next to amendments 109 and 111 on the marshalled list, it is consequential on amendment 109, so I propose to speak to all three amendments together. I welcome amendments 109, 111 and 112 in the name of Dave Thompson, which seek to ensure that the tests and processes for an application for the right to buy land to further sustainable development are as effective as possible. I appreciate that there might be some concern that the sustainable development conditions, particularly the requirement under section 47(2)(d) to show that “not granting consent to the transfer of land is likely to result in significant harm to” a community, might be difficult to meet. However, where provisions provide for land to be transferred against the landowner’s wishes, it is fair to have high thresholds to ensure that it is the right thing to do. As a result of the amendments, ministers will be able to consent to an application in circumstances where the conditions in 47(2)(a) to (c) were met as at present, but where not transferring the land would be likely to result in significant harm not to the community itself but to the community’s sustainable development objectives. As amendment 109 does not define what is meant by the community’s “sustainable development objectives”, it is not certain how we can assess whether transferring the land would be likely to result in significant harm to them. In addition, if such objectives are not publicly available, a landowner might not even be aware of them. One aspect of the test of a provision’s compatibility with article 1 of protocol 1 to the ECHR is that its effect is sufficiently clear and certain. Given the lack of clarity or certainty as to the meaning of amendment 109, the Government is concerned that accepting it would mean that the sustainable development conditions would become too uncertain to meet the requirements of article 1 of protocol 1. Consequently, I am not persuaded that amendment 109, as currently drafted, falls within the Parliament’s legislative competence and, as a result, I cannot support it. That said, I recognise the concerns that Dave Thompson and stakeholders have expressed about whether that element of the test sets too high a hurdle for communities while at the same time wanting to provide communities with appropriate clarity about the tests that need to be satisfied before ministers can consent to an application under part 5. Should Dave Thompson be willing not to move amendments 109, 111 and 112, I would welcome the opportunity to meet him to discuss the issue further with a view to returning with a Government amendment at stage 3. We need to consider the issue carefully to see whether there are other ways in which that part of the test can be adjusted to ensure that it is fit for purpose and respects the needs and rights of both communities and landowners. I therefore ask Dave Thompson not to move amendments 109, 111 and 112. As you know, convener, the Government is committed to giving effect to international human rights treaties in a way that works for Scotland. The International Covenant on Economic, Social and Cultural Rights is an international human rights treaty that sets out certain rights that state parties agree to recognise as well as aspirations to work towards. The creation of the part 5 right to buy, which allows communities to buy land in order to create significant benefits for it and to avoid significant harm, can be regarded as a step in assisting with ministers’ obligations under the covenant. Amendment 89 would place responsibility for testing and directing Scotland’s approach to the international covenant at the door of the courts; however, the covenant does not easily translate into clear, enforceable rights and its terms have not been drafted in a way that lends itself to interpretation by the courts. Nevertheless, as I agree with the sentiments behind Mike Russell’s amendment 89, I am very happy to accept it on the grounds that the Government will, ahead of stage 3, consider the matter further to ensure that the best possible wording is used to give effect to the intentions behind the proposed amendment. Although I appreciate the sentiment behind Mr Russell’s amendment 92, I am uncertain whether its wording provides sufficient clarity or will have the desired effect. I am not convinced that section 47(10) is the right place in which to insert the references to “equal opportunities” and “the realisation of human rights”, especially in light of the acceptance of amendment 89, which makes reference to human rights elsewhere in the test set out in section 47. The fact is that ministers cannot consent to an application under part 5 unless they are satisfied that the transfer of land would be likely to result in significant benefit to the community and that failure to transfer the land would be likely to result in significant harm to the community. The creation of the part 5 right to allow a community to buy land to create significant benefit to the community and avoid significant harm could in itself be considered as evidence of Scotland’s commitment to take economic, social and cultural rights into consideration. I reiterate that, unlike their UK counterparts, Scottish ministers already have explicit duties under the Scottish ministerial code to comply with international law, including international treaties, and human rights instruments such as the international covenant. Human rights are inevitably intertwined with the factors that are already listed in section 47(10) such as social wellbeing and public health. I am happy to support in principle Michael Russell’s amendment 92 and I hope that, in doing so, I satisfy some of Claudia Beamish’s concerns about equal opportunities. However, the Scottish Government will have to consider the issue further to ensure that the amendment still provides the test that is set out in section 47 with the sufficient clear meaning that is required to ensure that it is effective and within competence. It might be necessary to lodge an amendment at stage 3 to alter the wording of amendment 92 to provide the necessary clarity or to remove it altogether if an effective solution cannot be found. I am happy to meet both Michael Russell and Claudia Beamish to discuss the issue of human rights and equalities in part 5. We also need to get some clarity and an overview on what has been agreed on the human rights provisions in the bill. I appreciate the intention that lies behind amendments 62 and 63, which are similar to Michael Russell’s amendment 92. In my comments on amendment 92, I expanded on the consideration of human rights, and I will now offer some thoughts on equal opportunities in relation to these amendments. Health inequalities are inevitably intertwined with the factors that are already listed in section 47(10) such as social wellbeing and public health. In addition, ministers cannot consent to an application under part 5 unless they are satisfied that the transfer of land is in the public interest. If the transfer of land will be detrimental to the furtherance of equal opportunities, including the protected characteristics under section 4 of the Equality Act 2010, that will be a relevant factor for ministers to consider. Ministers already have important statutory duties under the 2010 act to “advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not” and to reduce socioeconomic inequalities in outcomes. Section 47(10) already requires Scottish ministers to consider the impact of an application on the lives of people in the community with reference to “economic development ... regeneration ... public health ... social wellbeing, and ... environmental wellbeing” when considering what constitutes harm or benefit to the community that is seeking to buy land. For example, if a community in an economically deprived area with poor health outcomes made an application that showed how a part 5 buyout would significantly improve its economic position or health outcomes, the application would be considered under the economic development and public health considerations in section 47(10). Given my commitment to accept in principle amendment 92 and to consider the issue further, I ask Claudia Beamish not to move amendments 62 and 63. I thank Claudia Beamish for lodging amendment 91, to which the considerations that apply are similar to those that apply to amendments 92, 62 and 63. Any inclusion of the term “cooperative development” for the purposes of section 47(10) would require it to be defined in the bill. Its inclusion is unnecessary to the extent that, if it can be shown that “cooperative development” can positively and significantly improve the outcomes for the people in a community with reference to “economic development ... regeneration ... public health ... social wellbeing, and ... environmental wellbeing”, that will certainly be a consideration for ministers. Therefore, although I agree with the sentiment behind amendment 91, I think that it is unnecessary and its effect unclear. I therefore cannot support it. 13:00