Hansard

I thank Patrick Harvie for explaining his amendments 115 and 127. We do not think that there is merit in removing the right in question from the owners of commonty through an amendment to the bill. It is worth highlighting that there has not been any consultation on, or consideration of, the issue during the development of the bill. There has been no opportunity for the Government or the committee to take or consider evidence on the impacts of such a repeal. As Patrick Harvie has quite rightly said, the Government will ask the Scottish Law Commission to look at the 1695 act as part of its next tranche of work on statute law repeals, through which the commission makes recommendations for the repeal of obsolete legislation. In line with its usual practice, the commission will carry out research on the 1695 act and on other legislation that is proposed for repeal, which will be followed by consultation with interested bodies. If there are no objections, the repeal of the 1695 act could then be included in the next statute law reform bill. That sets out what the process would entail. As Patrick Harvie has quite rightly said, the 1695 act is clearly antiquated: for example, there is a specific provision on the division of mosses in a commonty and what happens when the said mosses cannot conveniently be divided. Asking the Scottish Law Commission to consider the repeal of the 1695 act will ensure that the purpose of the act is analysed fully and views from key bodies are sought before the act is repealed. I have set out what the Scottish Government is doing, and on that basis I invite Patrick Harvie to consider withdrawing his amendment 115. In relation to amendment 127, I appreciate the opportunity to speak about the establishment of a common land protection order. I understand where Patrick Harvie is coming from with that amendment. There can be concerns when land that has been used by a local community perhaps for generations, for which the ownership may be common, unclear or undisputed, is subject to a disposition a non domino by private individuals. In many cases it may be appropriate for the land still to be used by the community for the benefit of all. The Scottish Government has considerable concerns about the detail of amendment 127. Under it, the only condition for applications would be that the land in question is not registered in either of the property registers. However, there may still be an owner, because some property in Scotland may have been acquired before the general register of sasines was established in 1617. In addition, land that is not claimed generally falls to the Crown. Another concern is that the amendment does not provide a definition of common land. It appears therefore that an order under the provisions in amendment 127 could be applied for in relation to any land that is ownerless. The provisions also appear to exclude land that is owned in common, although that might be the type of scenario that the amendment is designed to cover. The amendment might cut across a non domino dispositions aimed at completing title to a property. Those dispositions are often used when, for example, it is clear that a house is owned but there is some uncertainty about the associated garage or outhouses or the precise extent of the garden. Those are not areas of common land, but it seems that the amendment would be wide enough to cover them. Furthermore, there would continue to be uncertainty about the ownership of the land. If there had been any concerns about the land, there would continue to be a lack of clarity over who would take responsibility for it. That might cause problems if any statutory bodies—for example, the local authority or SEPA—had to take any action in relation to hazards. As long as such a common land protection order remained in force, it would be impossible to register title and consequently to complete the land register. Also, it may not assist in issues over abandoned or neglected land to have an additional obstacle to registering the owner. As with amendment 115, there has not been full consideration and consultation on the detail of Patrick Harvie’s amendment 127, and the committee has not taken any evidence on it. Having outlined concerns about the specifics of the amendment, I acknowledge the fundamental point that has been made by Patrick Harvie. I agree that, as a general rule, land that is used and enjoyed by the local community should remain available to it unless there is a very good reason to take a different approach. The Scottish Government recognises the need to ensure that common land remains available to local communities. That is why, in the light of the amendment, the Scottish Government is proposing to ask the new Scottish land commission, when it is established, to review the issue of common land generally. The bill at section 20(2) enables the Scottish ministers to refer matters to the commission. While it will be for the land commissioners to determine their own programme of work, it is considered that common good land is an area that they will be keen to consider in the exercise of their functions. The Scottish Government’s proposal reflects our concern, shared by Patrick Harvie, that there may be insufficient protection for common land in Scotland. We propose that the review could also cover the issue of common good land that is held by local authorities. In addition, such a review by the Scottish land commission would also give an opportunity for wider consultation to take place. In response to Patrick Harvie’s direct questions, it is our intention to ask the Scottish Law Commission and the Scottish land commission to consider those issues and to determine whether it is necessary to legislate and, if so, how best to do that. If legislation is necessary, the Government would take that forward at the earliest opportunity. We will ask the commissions to consider all recommendations. The Government has a wide, long-term programme for land reform and it is reasonable that we consider certain recommendations before others. Given that commitment, I ask Patrick Harvie not to press amendment 127.