Hansard

Amendment 58 is a technical amendment that seeks to clarify that the land that might be bought under proposed new part 3A of the Land Reform (Scotland) Act 2003 is to be given the term “eligible land”, and seeks to bring proposed new part 3A of the 2003 act into alignment with section 68 of the Land Reform (Scotland) Act 2003, which relates to the crofting community right to buy. On amendment 34, in the name of Michael Russell, which seeks to expand the type of land that will be eligible under proposed new part 3A of the 2003 act from land that is “abandoned or neglected” to land that is “in substantial need of sustainable development”, I note, first of all, that the bill builds on the 2003 act, which gave communities in crofting areas a compulsory purchase power and those in the rest of Scotland a pre-emptive right to buy. Although the bill will improve those powers, it will also introduce a new compulsory purchase power for communities to buy land that is neglected and abandoned, wherever they might be. Although that represents another important and progressive step on Scotland’s land reform journey, it is clear from the consultation and the committee’s considerable work on the matter that the proposal is narrower in scope than what the committee was seeking. Amendment 34 would allow a community body to apply to purchase land under the new right-to-buy provisions on the ground that the land is “in substantial need of sustainable development”, and ministers would not need to be satisfied that the land is “wholly or mainly abandoned or neglected”. I have considered amendment 58 extremely carefully and have listened to the committee’s views and concerns. As I explained when I gave evidence to the committee, any amendment to the bill needs to fall within the competence of the Scottish Parliament, and that includes ensuring that the amendment complies with the European convention on human rights. A right to buy engages the right in ECHR to “peaceful enjoyment of ... possessions”, because the legislation provides for a scheme under which an owner of land can be required to sell that land without their consent. A right to buy will be compatible with ECHR if it is in accordance with law and if it pursues a legitimate aim in a proportionate way. The phrase “in accordance with law” means that legislation must be clearly stated, foreseeable in its effects and not arbitrary. The test that land must be “wholly or mainly abandoned or neglected” provides all owners of land with foreseeability, as it allows those who are actively managing their land in a sustainable manner to continue to do so without concerns that they might face unnecessary processes to purchase their land when there is no intention on their part to sell it. Having taken further legal advice, I consider that amendment 34 would be outwith the competence of the Scottish Parliament. In allowing a community body to make an application under the new right to buy on the ground that the land is “in substantial need of sustainable development”, it does not meet the requirement that legislation be clearly stated, be foreseeable in its effect and not operate in an arbitrary manner. Unlike the requirement that land be neglected or abandoned, a requirement for the land to be “in substantial need of sustainable development” is not of itself sufficiently precise to provide an owner of land with sufficient foreseeability and predictability as to when the right to buy may be triggered. The Scottish Government made it clear in its stage 1 response to the committee that we understand the committee’s concerns and would actively consider whether we could extend the description of land to which the right to buy applies beyond neglected and abandoned land to other problem land. Although the Scottish Government accepts in principle the committee’s desire to broaden the scope, it remains concerned that the proposal and the words that have been chosen are so broad that they would take section 48 outwith the Parliament’s competence. For that reason, the Government cannot support amendment 34. At the same time, the Government is extremely keen to try to find a solution that broadens out the reference to neglected and abandoned land to add a third test or leg to the proposal and which offers a better and much stronger definition of “eligible land”. I am extremely keen about, and am absolutely committed to, working with the committee prior to stage 3 to craft such a solution. I hope that the committee accepts my offer and will work with the Government to look for a suitable solution. On that basis, I ask Michael Russell not to move amendment 34. On amendment 59, section 97C(2) of the bill states: “In determining whether land is eligible, Ministers must have regard to prescribed matters.” Amendment 59 seeks to avoid confusion by confirming that ministers are not to consider whether each and every holding of land in Scotland is “eligible land”, regardless of whether or not an application has been made, and are to consider only whether land is eligible if and when that land is the subject of an application under proposed new part 3A of the 2003 act. With regard to amendment 89, proposed new section 97C(2) of the 2003 act will require ministers to make regulations that set out matters that ministers “must have regard to” in determining whether land is wholly or mainly neglected or abandoned for the purposes of the new right to buy neglected and abandoned land. Amendment 89 seeks to provide that, before making such regulations, ministers are required to “consult such persons” or bodies “as they consider appropriate”. The amendment also requires that the consultation take place within a year and a day of proposed new section 97C(2) coming into force. I assure the committee that stakeholder engagement is an essential part of the regulation-making process and that stakeholders and appropriate persons will, as has already been the case, be consulted as draft regulations are prepared. I therefore do not consider it necessary to put in the bill a requirement to consult before making draft regulations, or an associated timescale for consultation. Indeed, stakeholders were consulted on the draft regulations setting out matters that ministers must have regard to in determining whether land is eligible land before the draft regulations were sent to the committee in February. With that assurance, I ask Sarah Boyack not to move amendment 89. On amendments 60 and 61, the definition of eligible land for the purposes of proposed new part 3A of the 2003 act does not include land on which there is a building or other structure that is an individual’s home unless the building or structure falls within such a class or classes as may be prescribed in regulations. Amendment 60 seeks to remove the regulation-making powers to prescribe homes that are to be exceptions to the general exclusion of homes from the definition of “eligible land”. Last September, the Delegated Powers and Law Reform Committee queried the requirement for that additional power and, after consideration, I agree that the power is not required. The Scottish Government is clear that homes should not be subject to the community right to buy under proposed new part 3A of the 2003 act, and the bill needs to make it clear that an individual’s home, or a building that could be treated as an individual’s home, is not considered to be eligible land. Amendment 61 seeks to give ministers the power, via regulations, to specify what classes of building or structure are an individual’s home for the purposes of proposed new part 3A of the 2003 act. At the moment, ministers can specify only the classes of building or structure that “are to be treated as” an individual’s home; in other words, ministers are allowed to set out only what kinds of buildings are to be “treated” as homes for the purposes of proposed new part 3A of the 2003 act, even if they are not homes. Moreover, the amendment allows ministers to specify in regulations what classes of building or structure are an individual’s home, and that power will be used to avoid confusion about what is meant by the reference to “an individual’s home” for the purposes of the right to buy under proposed new part 3A of the 2003 act. On amendment 54, land that is classed as bona vacantia or ultimus haeres is currently excluded from the definition of “eligible land” by virtue of section 97C(3)(e) of proposed new part 3A of the 2003 act. Bona vacantia is ownerless property that by law passes to the Crown, and ultimus haeres is land that belonged to a deceased person for whom no spouse, partner or living blood relative can be traced. Amendment 54 seeks to remove bona vacantia and ultimus haeres land from the list of such excluded land and to allow it to be subject to proposed new part 3A of the 2003 act. Land that is classed as bona vacantia and ultimus haeres is claimed by the Crown through the Queen’s and Lord Treasurer’s Remembrancer, whose purpose is to seek to realise the value of any land that falls to the Crown as bona vacantia or ultimus haeres. The remembrancer seeks to resolve the Crown interest in such land either by a disposal, where there is interest in the land, or a notice of disclaimer in which the remembrancer’s interest in the land is disclaimed—for example where there is no reasonable prospect of a disposal proceeding. 10:15 There are good reasons why bona vacantia and ultimus haeres land is excluded from the definition of eligible land. The remembrancer does not to seek to retain land in order to allow time for an acquisition of the land to be completed under part 3A of the Land Reform (Scotland) Act 2003. It is not in the remembrancer’s interest to do so as no disposal income would be generated and the remembrancer is not resourced to manage such land on an on-going or long-term basis. The remembrancer also seeks to avoid retaining land because of the risks of liabilities arising in relation to it. It follows from the sources of land falling to the Crown as bona vacantia that it can often be in a poor condition, bringing with it the risk of future problems if the Crown interest in it is not resolved. In circumstances in which land has fallen to the Crown as bona vacantia or ultimus haeres land, the community body has the option of contacting the remembrancer with a view to acquiring the land. There would, in such circumstances, be no need to rely on the proposed new part 3A process. For those reasons, I ask Sarah Boyack not to move amendment 54. Amendment 35 seeks to change the title of the online register on which an application form and all documentation relating to an application under proposed new part 3A of the 2003 act will be maintained. The register is maintained by the keeper of the registers of Scotland in a manner and form that is convenient for public inspection. The amendment seeks to amend the title of the register from the “Register of Community Interests in Abandoned or Neglected Land” to the “Register of Community Interests in Eligible Land”. Proposed new part 3A of the 2003 act concerns communities’ right to buy abandoned or neglected land, and it is important that that be reflected in the title of the register. Rejecting the amendment will ensure that the title of the register accurately reflects its purpose, and that it is appropriate and relevant to the information relating to abandoned and neglected land that it contains. For that reason, I ask Michael Russell not to move amendment 35. On amendment 36, section 97G(6)(b) of proposed new part 3A of the 2003 act requires a part 3A community body to give reasons why it considers that the land that is subject to its application is “wholly or mainly abandoned or neglected”. Michael Russell has lodged amendment 34, which is linked to amendment 36. It seeks to expand the definition of eligible land for the purposes of proposed new part 3A of the 2003 act, so that it includes land that is “otherwise in substantial need of sustainable development”. Amendment 36 is a consequential amendment to change the reference to “wholly or mainly abandoned or neglected” land in section 97G(6)(b) to a reference to “eligible land”. As I have asked Mr Russell not to move amendment 34, I also ask him not to move amendment 36. Amendment 37 is also linked to amendment 34. The purpose of amendment 37 is to obtain the landowner’s views on whether they consider that the land is “eligible”, rather than whether the land is “wholly or mainly abandoned or neglected”. That would be consequential to amendment 34. Again, as I have asked Mr Russell not to move amendment 34, I also ask him not to move amendment 37, for the reasons that I have set out already. Amendment 97 is linked to amendment 89. It seeks to ensure that consultation on the draft regulations that are to be made under proposed new section 97C(2) of the 2003 act takes place within a year and a day of the bill’s receiving royal assent. I assure Sarah Boyack that, as I said, stakeholder engagement is an absolutely essential part of the regulation-making process, and that stakeholders and appropriate persons will be consulted as any draft regulations are prepared. For those reasons, it is not necessary to place in the bill a requirement for consultation before making draft regulations or an associated timescale for consultation. I therefore ask Sarah Boyack not to move amendment 97. I move amendment 58.