We're delighted to be here in the Isle of Skye. It did live up to the misty Isle bit in the way here and indeed it's clearing now and we hope, like our evidence, it'll clear the ideas that people have about land reform and the land reform bill is the main business. I'd like to thank all the witnesses who have travelled here today and to give us evidence and to all of you members of the public who've joined us. Committees pleased to have the opportunity to visit Portree and would welcome your feedback on the external meeting of the Parliament that's held here. You'll find feedback forms in your chairs along with copies of the agenda for this morning's meeting and there are pens available if you don't have one with you. You can follow the progress of the bill and all the committee's meetings on our website at www.scottishparliament.uk, as well as via our Twitter feed and using the hashtag hash land reform bill and our handle at SP underscore rural climate. Before we move to the first item on the agenda, I'd like to remind everyone present to switch off their mobile phones as they might affect broadcasting system. However, members of the committee are probably using tablets for the business of the committee, so since the papers are provided now in digital format, mostly, that means that we're using tablets quite a lot. We have apologies from Jim Hume, Claudia Beamish and Mike Russell, and we welcome Chris John Allard as a substitute for Mike Russell to the committee today. So agenda item one on land reform bill is the only item on the agenda looking at parts one to five and part seven of the bill and will be joined by three panels of witnesses today and I welcome everyone to the meeting. The first panel consists of Malcolm Coom, the lecturer in law will be giving evidence in an individual capacity, Andy Wightman, an independent researcher, Stephen Thompson, senior agricultural economist and land economy environment and society research group of Scotland's rural college, and also Dr Jill Robbie, a lecturer in private law at the University of Glasgow. I refer members to the papers and questions that we may wish to ask. I'd like to start off by asking Jill Robbie a question just now. She's suggested that the bill could be improved considerably to be understood more easily if it were re-jigged if it were shifted about in terms of the ease of use by communities and landowners. I'd just like to get a few words from her about how she thinks we could do that. Thank you for the question. I just want to state at the beginning that I think the Scottish Parliament has done some fantastic work the past couple of years in revolutionising Scottish property law and I'm very happy to be part of this continuing process of land reform in Scotland. I also support the stated policy objective of the bill of managing the land in Scotland for the common good. However, I do have concerns about this particular bill and whether it will contribute to achieving this goal in the best way. A very important aim I think of this, that this bill should be looking to achieve, is clarity and accessibility, especially with community bodies are going to have to be able to use the bill. I don't think the bill is structured in a very helpful or accessible way and I've given some examples of that in my written evidence. Key provisions of certain parts are not at the beginning of the sections, for example the key provision of the Scottish Land Commission in my mind is section 20 on the function of the land commissioners. The key section of part 5 is section 47 and that's again tucked quite far into the middle of the section after provisions of lesser importance. I realise that the current structure of this particular right to buy in part 5 is similar to the structure in part 5A of the Land Reform Scotland Act as amended by the Community Empowerment Act. Consistency is important but I don't think that we should just replicate complex structures that have gone before. Connected to that point is that now community rights to buy and the law on that is a very complex area. I would challenge a good lawyer to sit down and actually discover what the law is at the moment with the Community Empowerment Act coming into force and how to advise clients, community bodies on how to use those provisions. Especially with a lot of the detail needed to be filled in with secondary legislation that again does not help the accessibility of the legislation. Again if you do this, if you make it complex and inaccessible it produces a barrier of being able to use the legislation and it also increases the costs for communities being able to use the legislation because they just need to get legal advice. I'm going to say this now that all of the witnesses don't need to answer all of the questions but if you do want to comment on any you'll need to indicate to me because of the structure of this room. If everybody's happy with that, it's an explanation from Jill. We'll move on to something that's more common to all of the witnesses on land rights and responsibilities. It's the statement on this and Graham Day is going to lead. Thank you. Good morning everyone. I wonder how the provisions that are proposed might be improved upon, for example should reference be made to international obligations on land and human rights. I also wonder should the land rights and responsibility statement require to be debated and endorsed by the Parliament? Malcolm Coom I think, please. I think it's dealt with automatically. Good morning and thanks for inviting me along today and thanks for the opportunity to speak. The analogy that I drew in my own submission was to the access code which comes under part one of the Land Reform Scotland Act 2003, which I think has been relatively successful. I hope most people would agree with that. That was put before the Parliament and approved and drafted in consultation with SNH and seems to be working quite well. There is obviously to make something have a bit more clout to use a technical term if it was to go before the Parliament and be approved in that way. I think that might be preferable. If it was in the legislation itself, obviously would have a certain cache that would not come if it was sort of external to that, but that said it might be trapped by the legislation. It might end up being tricky or too amend in the future. So it depends what it is. If it's to be hard and fast, so to speak, then legislation might be the place for it. Or certainly before Parliament and requiring Parliament to consider it before any changes came to it. So there's attention there. As I say, I think what the committee would need to decide is what it's for and proceed accordingly if that makes sense. Thank you, convener. I think it's important that this statement stands on its own and it's not on the face of any bill because I think it will need to be amended and adapted over the years. Most, I draw attention in my evidence to the fact that a growing number of countries now have national land policies and that's part of good governance and normally a statement of this type would be included within a national land policy. I also believe very strongly that one of the most important things apart from having it endorsed by Parliament, which I think is fundamental, is that this statement should not be a statement of Scottish ministers objectives for land reform. This should be a statement of land rights and responsibilities endorsed by Parliament and it should have as much as wider an endorsement as possible and it should incorporate the requirement to draft a national land policy because I think this is the start. I see a start of a process whereby we can develop a national land policy. Thank you. Jill Robby. I agree with the statements Andy's just said that this really should get as broad an endorsement as possible. I think we should, with a topic like land reform, it affects everybody in Scotland and we should aim to try and get as much debate, as much input and as much engagement from everybody as possible and Parliament is one of the best places to do that. We've covered those bits I think. Steve, do you want to say something? Please do. Steve Thompson. Thanks very much. I think that's a very important point that Jill makes and Andy makes is that certainly from an SRUC's perspective we think that it's absolutely essential that this is endorsed by the Scottish Parliament because it gives you transparency and what we're wanting is transparency in this policy. If we don't have that transparency then it is, as Andy says, a ministerial decision which sometimes are clouded in subjectivity or party politics that are not open to the public debate to see how these things have been formulated. We certainly wanted the statement to not just say what the intent for land reform is and I think this is what Andy refers to as the bit that will likely change through time but we also thought that it's key that the principles that future governance, support and regulation of our land are set out. So not just a statement of intent for land reform but what are the guiding principles. Thank you very much. I think we've dealt with that section. I think we should look at the actual Land Commission now and Dave Thompson is going to lead on that. Thanks very much, convener. Good morning to everyone who's in the hall today. It's good to see such a good turnout in my own constituency. The proposed land commission, the title doesn't reflect the fact that the consultation etc and the report of last year mentioned that it should be called the land reform commission. Do you think that's important or does it not really have any significance given that land matters I believe will never be resolved absolutely at any point in time there's going to be a need for continual reform. Is it important we actually have reform in the title? Steve Thompson. I certainly don't think you need the word reform in the title. It should be about governance of land and oversight of land issues, whether it's part of a reform process or not. According to the bill it deals with any policy regarding land so why leave it at land reform? You then stymie the commissioners in their ability to deliver on wider issues perhaps which they might have insight into. Andy Wightman. I think it's important that obviously the Scottish Land Commission takes a lead in many topics concerning land reform but I think it would be misleading to call it a Scottish Land Reform Commission and I would support leaving it as a Scottish Land Commission. As a suggestion my evidence it should also have the responsibility of developing a national land policy and it should be following international best practice as has already been set out in the UN's voluntary guidelines on the responsible governance of tenure. So I see the Land Commission's job as taking quite a broad in depth overview of land policy in Scotland and much of its work will be concerned with proposals and ideas around land reform but that would be a subset of its responsibilities. Malcolm Coom. I think it took quick points. The first would be if including the word reform in the title was to be so inflammatory as to leave some people not keen to engage with the new entity that would be a problem. That would be a problem so therefore the sort of path of least resistance would seem to be Scottish Land Commission. The second point to note quickly would be, and this is an analogy with another jurisdiction in South Africa, the post-apartheid constitution on the face of it recognises that land reform is part of the public interest. And they are obviously completely different social setting, much different in terms of social pressures that they have there but on the face of their sort of post-apartheid regime they are committed to doing that. So including reform in the title just to go completely against what I've just said about being inflammatory if it was to say this is what we are about then that's fine. If that is the recognised policy of what they are getting at and it's on the face of it and having the word in the title in that regard might be a good thing. The Irish Land Commission in the 1920s was very political and didn't have the word reform in it at all. Dave? Thank you for these answers. Just to follow on on the LRRS, I just wonder if the panellists think there should be a requirement to integrate its work with other land use policies and strategies like the land use strategy for instance. And in terms of the range of expertise and experience that's recommended for the commission, do the panellists believe that should be extended covering things like Gaelic, or land management, or forestry, or other matters? Stephen? Stephen Thomson. In our submission in SRUC submission we actually suggested akin to what Andy Whiteman is saying is that the commission should actually develop a wider land policy over the next period and it's that land policy rather than the statement in itself I think that would bring together in a much more realistic and integrated manner all the different policy strands. Because we do, and we have to be honest here, is we have relatively competing policy signals for rural areas and policy priorities. So we have got, we have policy conflict at times and having oversight of that and trying to pull together things in a coherent manner might be a useful tool or a useful job for the commission to do. Malcolm Coombe. Two points. In terms of integration to things like the Scottish land use strategy I would be perfectly happy with that and that would be fine. In terms of whether or not Scottish land commissioners should have certain other things that they have to sort of abide by built into the statute that there's I think the six listed in terms of what they should have referenced to. That's not an exhaustive list so there are other things that can be taken on so in that regard maybe it doesn't need anything else but in terms of my own evidence I suggested that Gaelic might have a bigger role in the statute. Certain analogy might be drawn with the Scottish land court act 1993 and the Crofter Scotland act 1993 which requires for example a Crofting Commissioner to have knowledge of the Gaelic language and I think that it would have benefits in terms of understanding what the land is about being able to unlock place names and things like that. That maybe is less tangible a benefit. It might have benefits for the language itself. I know that's not necessarily what the Scottish Land Commission would be for but there we go. I think it could be a positive step to have Gaelic involved. Arguably some of that is built into the Gaelic language Scotland act 2005 anyway but to be consistent with the two 1993 statutes that I mentioned there I think it would be good to have Gaelic on the face of the bill. Andy Wightman. I certainly, given that I believe the Scottish Land Commission should have a responsibility to develop a national land policy, the land use strategy shouldn't in turn be part of that. We've suffered I think since devolution in having a very ad hoc approach to land matters and that's why I'm particularly pleased to see the Land Commission proposal. There are areas of neglected policy I highlight the question of common good which is still not an area that's been subjected to enough detailed scrutiny and needs quite a lot of reform. Those are the kind of topics, the sort of forgotten about topics that fall between the responsibilities of ministers etc. The Land Commission can effectively pick up, draw to attention, do some work and integrate with other government policy and I think the integrative function is critical because one of the purposes of the commission in my view is to be able to identify bits of government. The government policy that conflict on a land in terms of a land policy between for example housing policy and fiscal policy perhaps. In terms of the expertise I'm relaxed about the expertise requirements that are laid down in the bill, this is going to be quite a high level commission dealing with some complex areas of policy etc. Obviously it needs to draw on expertise from those who own and manage land whether that be housing or factories or rivers or harbours but you couldn't have a special place for any particular expertise because there are dozens of areas of expertise when it comes to land. The comments of the other witnesses that there should be a coordinated response in the statement it should take into account other documentation. In terms of the land commissioners I think there has been a notable exception of experience in land management listed in the factors in section 9. Although Malcolm is saying that we can take other views into account, this is not an exhaustive list. I don't think we should provide a list that does block out main people who should be part of the process and part of the collaborative response to land reform. I would also endorse Malcolm's comment about Gaelic. I think that it would show a commitment to having a diverse group of people on the commission and in that view I think perhaps there should be regard to trying to represent people from different areas of Scotland on the commission to have some sort of local input of different areas. Thank you. I have a supplementary from Graham Day first of all. I just wonder how the panel feel on how detached from government the commission and the commissioners ought to be and how should they in practice be interacting with the government. Andy Wightman. There's discussion in the policy memorandum I think around this. I don't recall all the detail but my recollection is that government is trying to set this up as not a full independent commissioner like the Human Rights Commissioner or the Freedom Information Commissioner but at the same time not just another bit of government as it were. And I think it's very, very important that it has autonomy that has clear statutory role that has a clear statutory reporting requirements. It's clear statutory responsibilities to consult. But this is a body which in my view part of the benefit and having this body is being able to take both a deep radical perspective on land, a strategic approach to it and also one with medium and long term time horizons. And therefore that needs to be sufficiently removed from the day to day concerns of Scottish ministers. So that would be my view. Stephen Thompson. Yes, in our submission from SRUC we actually suggested that we would support that they are independent. They have to be seen as being independent of government and of ministers although they have to obviously report and we think that that's essential to get the buy in from all parties. Getting engagement from all parties to the land commission is an absolutely essential role. And coming back to the previous point about skill sets, one of the key things that we thought should be built into the criteria is that there should be at least one practical land manager, whether it's aquaculture, housing, whatever. It's somebody with a practical background rather than purely an academic or an institutional background as part of the commission. And just coming back to this other point about Gaelic, and I know it in sky, we have to be careful that we don't alienate the south of Scotland so you would also have to consider the role of Scots. So it shouldn't just be Gaelic, it should be language per se that we're dealing with if you're wanting to build that and don't alienate parts of the country just by inclusion of Gaelic. Dave Thompson. I take that last point. The difference is that there are far fewer Gaelic speakers so there's a much more limited pool. You're much more likely to get a commissioner who at least understands Scots even if they don't speak Scots but even a Scots speaking commissioner. So many people in Scotland don't realise they speak Scots. I think they speak a slang forum of English but that's a whole other debate. Indeed it is but nevertheless it's germane and indeed the policy memorandum says that it expects the government to suggest things to the land commission to actually investigate but as Andy Wightman says it should have sufficient independence from Scottish ministers to determine their own programme of work. So it's a balance between the government and power at that time and commissioners with a longer term view and we'll see what other people think about that as we go through the witnesses in different time. We're going to look at the information about the control of land and Sarah Boyack is going to lead on that. Thank you very much computer and I also want to add my welcome to everybody not just in the room but I understand we've got broadcast going out from here so welcome to everybody who's taking part in this discussion. A key statement in the policy memorandum is that there's a greater transparency and that's certainly backed by the responses we've had to our request for comment and I think the question might be how we would achieve this. So I want to kick off for the question to members of the panel and I'm thinking particularly about Andy Wightman and Malcolm Coombe because you've both given us quite detailed comments on the principle of transparency and how we achieve it. So I want to ask whether you agree with the fact that the restriction of ownership and land to EU registered entities is not included on the bill even though it's in the consultation. Do you think the proposed provisions match the ambitions of the fourth EU anti-money laundering directive that was passed and recent comments made by the UK government regarding moves to reveal who company owners are? And do you think that the bill will help to lead to a reduction in the amount of Scottish land held in tax havens? Andy Wightman, first of all. Well, I'm not. I don't agree that it has been excluded. I think the provision that was proposed back in December should be in the bill. That is to say to restrict any corporate or legal person to be registered within the EU. I don't think it matches the ambitions, certainly doesn't match the ambitions of the UK government, doesn't match the ambitions of even the Prime Minister David Cameron. I think sections 35 and 36 should simply be deleted. I think they serve no purpose whatsoever. They're both regulation making sections. Regulation 35, section 35, allows people to ask questions and section 36 allows the keeper to ask questions. The answer to those questions may simply be a two word rude answer. The Governor General of the British Virgin Islands is under absolutely no obligation whatsoever to reveal any of the kind of information that these sections seek to reveal. The only circumstances in which the Grand Cayman and Panamanian authorities would be obliged to do that in circumstances where there was a criminal inquiry underway and criminal actions were being investigated and there are international agreements to do that. So I don't think this will lead to any greater transparency whatsoever. I think it's bizarre that you have a section that says people can only ask questions if they've got good reason to ask questions. I mean that is frankly in a parliament that has passed freedom of information legislation and has otherwise been very supportive of transparency. The idea that only certain classes of people can ask these awkward questions or what appear to be deemed to be awkward questions is frankly bizarre. And the powers of the keeper in section 36 are powers she already has. She can ask these questions if she likes. This just gives her a statutory footing on which to ask those questions and there's absolutely no reason to anticipate that she's going to get any answers. Malcolm Coom. I was an advisor to the land reform review group back in the day if you remember that even before the initial consultation exercise and I had got comfortable with the idea of a restriction on non-EU entities owning land in Scotland and I'm still comfortable with that. I've not changed my view. In terms of whether or not what is in the bill at the moment clauses 35 and 36 could be effective to mirror what the land reform review group proposed. I think the answer to that has to be in the negative. I don't think it would. In my evidence I suggested some other things that might be for clauses 35 and 36 but that wasn't meant as we shouldn't sort of completely forget about the non-EU point just here are some alternatives if you're not going to buy into that. For example there might be some kind of I don't know if I want to say sanction but a consequence in that if someone wasn't to interact with a community I suggested maybe if the land was then somehow deemed to be abandoned in terms of the community empowerment act 2015 provisions that were introduced that would then lead to some kind of potential to have an asset transfer obviously would have to go through the sustainable development test and there would be full compensation etc etc but it would be something that would have a consequence that as Andy mentions at the moment might not be there in clauses 35 and 36 at the moment. I think that's a really helpful clarification and I'd like to tease out some more around this. If you had that obligation on the face of the bill what might sanctions for non-compliance for the keeper be? I mean I think the point you made Andy Whiteman there was you could have the power to ask the question but not get it answered so what about things like cap payments or grants to what extent would it be a legal requirement if we had it on the face of the bill and would that help in terms of making sure that there was clarity and certainty from the start so that people would know where they stood and when the keeper asked the question it would be answered. Andy Whiteman? Well I haven't thought about this but there are potentially sanctions that the Scottish Parliament could consider putting in the bill in circumstances where the keeper asks a question and doesn't get an answer. That seems to be a rather clumsy way of going around public policy. I mean the intention of the original proposal that goes back to the Land Reform Review Group indeed goes back to I put the suggestion during the passage of the Land Registration Act 2012. The purpose here is to end secrecy. The simplest way to eliminate secrecy jurisdictions from Scotland is to make it incompetent for them to hold title, end of story. If you don't do that you get yourself into these crazy situations where you're having to devise sanctions that may or may not be lawful. For example if you're trying to have a sanction of withholding payments of EU agricultural subsidies that would be probably unlawful. You know then you're into the whole complexity of EU law and can you discriminate at the end of the day. And then of course who's not answered the question of the keeper. Who's not answered the question of the keeper is the registry of the British Virgin Islands but they're not the ones suffering the sanction. I just think this is a crazy line to go down 35 and 36 as I say just get rid of it. I mean it's better to have nothing on this than to have a complex stuff that's just not going to deliver anything other than I think provide a bit of a fig leaf for government to say they're doing things. I frankly an embarrassment because you know the UK government is committed to transparency, to beneficial ownership registers just last week all the offshore information was published in England and Wales. Scotland should be leading on this. The big benefit of keeping these offshore tax havens out is not just transparency and accountability and doing our bit to help avoid tax avoidance etc. It's leadership because you know if the UK Parliament were to pass a statute that prohibited you offshore tax havens owning property in London that would be quite dramatic and extremely useful. So I think the Scottish Parliament you know could provide leadership in this context on a UK basis. We've got a supplementary from Angus McDonald but Joe Robbie first of all and then Angus and then we'll come back to Sarah and also to perhaps to me as well. So Joe Robbie. Thank you. I think the land reform review group seemed to identify a particular problem and there was a concrete solution that was provided for that problem that was quite clear. That obviously hasn't been accepted by the will and what we have now is a very vague concept that needs to be filled in and is highlighted the failings in the actual effectiveness. Of fulfilling the goal of the policy and I think those are good concerns to raise. I also want to just make the point that certainty and transparency and publicity are have been important principles still are important principles in Scottish property law. But not all publicity is good publicity I don't think. If you've got access to documents electronically at low cost and quickly it can mean that a vast range of information can be obtained by somebody in an instant. Names, dates of birth addresses, previous addresses, whether there's a security over a property which bank holds as a security images of signatures can quite easily be obtained. This is the ideal environment for misuse of that information and in England there've been cases of people requesting documents to obtain the signatures in order to fraudulently transfer the land. So I think we are constantly reminded in our personal capacity not to publish sensitive information online and yet now with the completion of the land register more of this information is going online and will be accessible. So on that background I think we still need to balance the interests of transparency and publicity against the interests of privacy and data protection of landowners and by landowners I don't just mean a highland estate I mean a terraced house in Dundee. So I think we should take this into account when if this section stays as it is then the regulations that come from it should think and carefully consider that balance. It does not mean that certain restrictions on information mean that the government doesn't have access to the information in order to inform research statistical information on land ownership but it just means that the information doesn't necessarily fall into the wrong hands. Interesting point in the view. Angus McDonald's first and then Stephen Thompson and then see where it goes from there. So a few more bits to this. OK thanks convener. Good morning to everyone taking on board Joe Robbie's points. Can I just go back to Andy Whiteman's comments. He mentioned that during the Land Registration Bill in 2012 when it was going through the Economy Energy and Tourism Committee and Parliament the government had the same position as it has just now on non EU entities. Now clearly the government stance is in contradiction perhaps to the situation in Denmark for example where there's a presumption that the landowner has to stay in Denmark. Basically if the Danes can do it why can't we and it'll be interested to hear if the panel could expand on that view. To add to whatever is being said Stephen Thompson first of all. Just to go back on the point about that Andy was referring to in our evidence we also suggested that it seems strange to have a provision that the keeper could ask for voluntary information unless there's any sanctions and the only sanction that you could have is refusal of registration of the title. I mean that's the ultimate sanction that you could have. But it seems strange to have that provision if there is no powers to act. The second point on this thing about EU again going back to the December consultation. We were quite strong in the fact that is there any evidence that by having that restriction to an EU that you would actually have any benefit in actually finding out who these people are in terms of ownership and probably the answer is no because EU still allows for people to be hidden away through the companies thing. So I'm not convinced and I don't think my colleagues would be convinced that that is a necessary provision. Another thing we have to remember is that there are some landowners out there that actually do benefit communities significantly that are non-EU members bringing in quite significant sums of external money from the EU, from out with the EU and investing it into local communities. And then going back to Sarah Boyack's point on cap payments, could you have penalties on cap payments or grants? Having spent two years working with Brian Pak on trying to reduce red tape and CAP I would certainly suggest that that might not be a useful way forward because if you were to introduce a cross compliance measure on these kind of things then I think that would be against the EU principle. That would be against the principles of CAP payments. Andy Wightman. First of all in response to a couple of things that Stephen said. It's important to bear in mind that if the original proposal were to be reinstated it would mean that any legal person owning land in Scotland would have to be registered in the EU. The EU is already passing legislation and it's already in the statute in the UK in the Small Business Enterprise and Employment Act 2015 to have registers of beneficial ownership. So even if you had a corporation set up in Italy, the shareholders of which were in the British Virgin Islands, there would be a legal requirement for a beneficial register of ownership in Italy. Now even that's got problems because it's very difficult to ascertain whether those who declare themselves on that beneficial register are in fact the people. But this is all a journey we're on and my criticism is that drawing back from a meaningful first step in that journey seems to be rather bizarre. The other important thing to emphasise to the committee, there should be absolutely no doubt that nothing in the proposal in December restricts anyone anywhere in the world investing in Scotland. This is not about restricting foreigners owning land in Scotland. All it is is saying that if a woman in Bolivia wants to buy a house in Edinburgh through a corporate vehicle then that corporate vehicle has to be registered in the EU. And indeed this is what big investors in Scotland do. I mean big Japanese and American corporations, when they acquire land in Scotland to build factories they set up UK subsidiaries. It's a sensible thing to do in many cases. So there's nothing really odd about this but it certainly wouldn't restrict for an investment. It just places a requirement on you to register your interest within the EU. On the question that Angus MacDonald asked about absentee landowners, I'm not sure whether he's asking a question as to whether all owners should be resident because I mean we can talk about that. There's nothing in the bill on absentee ownership but by definition a corporation outside not registered in Scotland is absentee. So I'm not sure if that is part of your question. Sarah Boyack, to go on from there on this please. I think the answers have been very useful in terms of the choices what you actually put in the face of the bill. One of the things about the test is the extent to which you think it's important to let ministers make regulations after the bills passed or whether substantive provision should actually be clear and on the face of the bill so that when we are testing it it has the support of the whole parliament and we can interrogate it. So it's that choice about what's up front and on the face of the bill versus subsequent regulations at some point. I'd like views on that. Andy Wightman. This should be in the face of the bill. Any provision like this should be in primary legislation. It is in the Small Business Employment Act and various other statutes that are dealing with transparency and tax evasion etc. and primary legislation not in regulations. Thank you. Jill Robbie. I have quite a strong view that a lot of the provisions in this bill generally seem to be absent and it's difficult to have a discussion about it. It would be great to have provisions as soon as you put them down you can start to have a discussion but I didn't want to keep reading that the ministers can make regulations. And again it helps us to have a debate about it but also increases accessibility of the bill. Anybody who's tried to find the up-to-date statutory instrument on anything will appreciate that it's not an easy task. So if you can get these provisions on the face of the bill I think it would help the accessibility of the bill as well. What Jill said. Thank you. And Stephen Thomson. I would concur with what has just been said. There would be a nervousness if ministers can consistently change the regulations without going through parliamentary scrutiny. Again it comes back to transparency and going back to your question on Denmark. Part of the reasons for their rules is on land taxation issues and so there are issues there that is what their requirements are. And also for farmers in Denmark in order to become a farmer you actually have to have qualifications. So I mean it is a different set of rules and standards that perhaps we could look at. Boeie Act just now on this section. I think those answers have been really helpful to us. I just have one final question and it's to ask whether you're aware of examples of where access to publicly available annual returns and accounts including the names of beneficial owners. Would it be beneficial to the sustainable development of communities? Andy Whiteman. Off the top of my head I can't think of specific examples but I've been involved with communities and individuals for 30 years now in these matters. And in a very small number of instances obviously but important instances nevertheless to those people involved. The degree of frustration in not being able to find out who really controls the land, finding out who owns the land is not a problem. It's in there in the register of say scenes or the land register. It may be difficult to find but you'll get it eventually. In most instances you'll get it quite quickly. You will get a name. I was working with a community in Ayrshire recently where we were trying to find the owner of a bit of land and the last deed was recorded in 1942 and the owners were named at an address in what was then Rhodesia. Absolutely no idea who those people are now even if they're alive. That's a bigger problem with land registration is there's no requirement to update the register on the current address and location. So it's actually not. The land register is designed as a place to secure property rights. It's not designed as a place to find out information on who owns land and how it can get hold of them. Which is why I think we should have a much wider land information system but that's another question. I think you yourself the committee were in Orkney recently hearing evidence about problems in Gils Bay as I recall which wasn't to do with offshore tax havens. I remember Paul Wheelhouse in evidence I think again to your committee when he was minister telling about his six year six month might have been six year. Odyssey as a community councillor trying to find out who owned a bit of land in his eye myth as I recall and eventually ended up as being a member of some ancient European royal family. So I mean these are take it from me these are problems that communities and individuals come across on a reasonably regular basis. They don't make a big fuss about it because they frankly just give up. And that's why bringing some of this some of this debate around transparency and information is absolutely fundamental and important that parliament makes progress on it. Can I just ask a question about that you know is it within the competence of the Scottish Parliament to bar non EU registered entities because Westminster has made the bill for the England and Wales situation. But is the Scottish Parliament does it have those powers at the present time. In my view Scottish property law is is clearly devolved land registration law is part of that. And the original proposal was to make it incompetent to register title in land if it didn't meet certain criteria and so that forms strictly part of registration law which is part of property law which is all devolved. Now there may be consequential issues around European treaties treaty of Rome discrimination human rights and all that stuff but those are all consequential potential issues. I don't think happen to think there are any. This is wholly within devolved competence in my view. I mean that moment for example it's my understanding Malcolm can correct me if you're under 16 you can't take title to land. It used to be that if you couldn't take title to land if you were a firm that was changed in the abolition of feudal. So there's a history of saying if you want to record a title in the registers here are the requirements you have to fulfil and this would merely be one other requirement. Thank you. And Malcolm Coom. Just to add in the 2014 land reform review group I'd managed to get myself into position that I was comfortable that a restriction could operate on non-EU companies that wouldn't be in breach of for example article 14 of the European Convention of Human Rights which is to do with discrimination. And in terms of capital movement across the European Union again I was comfortable that a restriction on non-EU could work. I'm not aware of anything that's happened in the past year that changes that view. To come back to Sarah's point about the whether or not we know of situations where sort of offshore ownership has caused a problem. It's actually an anecdote with one of Jill's colleagues Dr Dot Reed tweeted recently that there's a bit of land near her that's owned by the British Virgin Islands Entities Entities and they don't answer letters. So there you go. Thank you for that. And a final supplementary I think on this section from Graham Day. Thank you. Just to wrap this up. I'm trying to look at this issue from a subjective standpoint as you can as panellists. Can anyone think of a single valid or significant reason for not having a queer requirement regarding non-EU entities as was originally proposed? Andy Wightman. The question is can we think of any valid reason not to do this? Not to do what? Not to have a restriction on the registered non-EU. Okay any good reason why the December proposal shouldn't be? No. And in fact the failure to include it as I say flies in the face of progress is being made at a UK government level and the progress is being made at an EU level. The direction of travel globally and this is a global concern which is why it was raised at the G8 summit. It is a global concern with the volumes of illicit money flowing around the world. Much of it we now know is ending up being laundered through offshore tax havens through property. I have anecdotal evidence of dirty money coming in through the wind farm industry in Scotland.  This is all anecdotal. But the metropolitan police are very, very aware. I think it's a serious problem. Most EU countries recognise it as a serious problem. So the whole direction of travel is about increasing transparency and visibility and accountability. And so we should be on that journey too. Malcolm Coom. I know there has been an argument put forward that if you were to have a non-EU restriction there would be a flight of these assets. Into EU registered trusts or EU incorporated trusts or EU declared trusts. I'm not sure if I find that very convincing. Thank you for that. Andy Wightman again. But quickly come back on that trusts thing because it is in the policy memorandum. Trust law is fully devolved. Indeed the Scottish Law Commission have prepared a new bill on trusts. The idea that trusts are not as transparent as companies. The trustees are named in the land registration documents and in the A section of the proprietorship. But you can actually find the original trust deeds. The original trust deeds of any trust incorporated in Scotland are in the books of council and session. So you can even find who the original trust doors beneficiaries are. And you can do that across the EU as well. It's not as easy as companies but you can find it. Why did you put an evidence paper to the Scottish Affairs Committee in London about this very subject, you and others. If it was something that was competent for us to deal with because you were looking for the Westminster Parliament to actually deal with the closed nature of trusts and the lack of information. Because that was to do with company law. The Small Business Employment and Enterprise Act of 2015 sets up a beneficial register of ownership of companies but not trusts. And we felt it was important that trusts were included in that. Still feel it's important that trusts are included in that. But the UK government refused to do that because as the report said in March it would take a fundamental change in UK law to reveal who the owners of trusts were. In English law because Scottish law of trust is devolved. But is it the same about revealing who trustees are? Well no, I don't know what the law on trusts in England is or the extent of disclosure at the moment. What I do know is that any trust that is set up under Scots law the trust deeds almost without exception are registered in the Books of Council session which is a dusty legal tone in the register of Scotland. It's not the kind of place that you trip over on your sort of daily travels but is actually there. So I mean I'm not taking away from the fact that there are big challenges at a UK level. The point I'm making is those challenges are slowly being addressed not as fully as I'd like. And I can't understand why we are not doing all we can to cooperate fully with that effort. Thank you for that. We're moving on to engaging communities in decisions relating to land and Alec Ferguson is going to lead on this. Thank you, convener. Slightly more mundane subject perhaps to cash loads of suitcases full of cash being brought into the country for wind farm purposes but nonetheless it's a very important one in relation to this bill. I don't think and none of the evidence I've read or heard suggests that anybody has a major problem with the general principle of engaging communities in decisions relating to land. But I do think we as a committee have a bit of a problem with this and I think it was highlighted last week. And it comes back to the two words that have been mentioned quite a lot already this morning clarity and certainty because there seems to be a considerable lack of either of those two qualities surrounding this part of the bill. Indeed as Jill Robbie has said in her written evidence that there is little indication on what the guidance relating to this part of the bill will contain and that is a real issue for me in terms of how we go about scrutinising it. Indeed several of the key concepts within it are not properly defined are not clearly defined and I think that gives us all as members a bit of an issue in relation to trying to drill down into the impact that this will have. But nonetheless there will be a process of engaging with communities and I think it's important that we look at it as best as we can. So I wonder if I could start off by asking how members of the panel feel that the government could ensure that the guidance which as I understand it will not be mandatory is compliant with other guidance on land management and whether or not you think that sanctions should be imposed or what sort of sanctions could be imposed if the guidance is breached. Andy Wightman. I welcome this being in the bill. I think guidance is useful as you say. There's been strong widespread consensus around this. I think the points you raise about the lack of clarity about what should be in this guidance are good points. I think there could be a lot more in the bill on that. But one doesn't want to, I mean guidance is guidance. And so beyond saying what the guidance should broadly be about the bill can't be prescriptive about what should be in it as it were. And we have a number of examples of statutory guidance already been passed by Parliament of which perhaps the most notable in this context is the statutory guidance on access to land and a part one of the land reform act 2003 which is very extensive in its detail, extremely extensive. But as I recall on the face of the bill itself there wasn't a great deal of detail as to what should be in the guidance but it was clear that the guidance needed to be detailed in order to be able to effectively exercise your right to responsible access because responsibility had to be defined and therefore responsibility had to be defined in all circumstances. So I think I'm quite relaxed about this. I think it's a genuine concern but I'm relatively relaxed about it because I think the guidance will be broadly supported by all parties and therefore I think there's going to be an intent to make guidance that is as effective as possible and as detailed as possible but I don't think you can get round this conundrum of the bill being clear about what should be in it and the guidance itself being non-statutory. Malcolm MacCum with his own microphone. It wasn't, yeah. I think the classic answer is the devil will be in the detail but to go back to what Andy was saying about a different point this is a step in a certain direction and if the direction is towards more engagement it's a positive step and therefore I'd be minded to say it's a good thing. I like Ferguson, yeah, go on. I absolutely agree with you, the devil will be in the detail and I just wonder if on that basis you think that the guidance when it is forthcoming should be endorsed by Parliament giving Parliament an opportunity to further scrutinise that guidance. Andy Whiteman. There we are, hello. Yes, I think as far as possible all statutory frameworks whether they be secondary legislation, guidance, policy steps should be endorsed by Parliament. Parliament should have the maximum opportunity to scrutinise these. I think we'll try and go on to the next part of what you had. That leads quite well on to the next part that I wanted to explore which is okay, we have the guidance to be scrutinised by Parliament. How do you then ensure the degree to which landowners will engage with communities? How do you, in taking that consultation into account how do you ensure that landowners take that consultation into account when they're making decisions relating to land? How do you follow that through in an effective way? Andy Whiteman. Well I think this is, how do you ensure, I mean I'm against legal frameworks that are trying to be overly prescriptive about people exercising their private rights. And I think this bit of the bill is an attempt to move towards building up greater degree of trust between those who have the privileges and the responsibilities of owning land but whose decisions also impact on others. Now clearly many people in that situation exercise those responsibilities very well at the moment and always have done others less so and others, going back to part three in the bill or part two, we have no idea who they are so it's difficult to assess it. But this is in my view a part of a journey of building up trust so I would be very reluctant at least at the outset at this point in time in trying to have or prescribe sanctions or means of ensuring that people do things. I would be inclined at this stage to develop robust good quality guidance and there's plenty previous material to draw not just in the UK but overseas and see how it works out. Malcolm Coom. In sort of public law terms and sure politicians and councillors will know there are plenty of times when you need to consult and you need to pay attention to what people say in the consultation but in terms of the response to that if you are trying to encourage the response to absolutely, definitely take on board what was said in the engagement process then part four would become something else. It becomes more about the sanction, it's sort of carrot and stick. What do you want it to be if it's to be as Andy was saying the first step and something about sort of opening up a dialogue then I think at this stage it's proper that you don't necessarily hit people with sanctions for non-compliance because as I said then the consultation becomes something else. Steve Thompson. Thank you. Thank you. I think this is an important part, the guidance issue and how you actually engage or how you encourage landowners and communities to engage. Whenever we talk about guidance I always refer back to when I not long after I started at what was SAC then and there was a whole raft of best practice guides for community development etc that were published by the Scottish Government and I would say that they were probably sitting on shelves and not very many people would have read them or engaged with them so best practice guidance sometimes doesn't help and it certainly doesn't mean that communities are going to be more empowered so by giving somebody guidance they've still got to take that forward and feel as if they're empowered and the way the bills kind of set out just now is that the communities that are already doing things are likely to be ones that benefit the most from this those that don't have the capital base to take things forward already are going to get left behind and as we call it is the Darwinian development in our consultation document in terms of getting landowners to consult with communities and it comes back to again on what scale of management are we talking about here and this is the fundamental question in this part of the bill that's not answered so if somebody's going to plant trees they already have to consult probably if it's over a certain size it has to be going through the Forestry Commission if they're going to build a house they have to consult they have to do planning legislation etc if you're a tenant farmer you already have to go to your landowner on the end you have to go to the planning authorities and obviously now the community now if it's a planning issue there's already an opportunity for engagement with communities in that the communities get a response to planning applications etc there are opportunities for some of these land management decisions that are going to impinge on communities the day-to-day management of land should not be a part of this process and we have to be absolutely explicit with that we can't have what interference with as Andy would say private matters which are of a business nature of a daily business nature in terms of running your business so I think there's a real importance that we try and nail down what types of management activities that we're actually talking about here and Alec Ferguson that again leads me very neatly into my last point I had on this I absolutely agree with what's just been said it's a point I put to civil servants last week when I asked them straight out concerns that had been raised with me in my constituency would this impact on day-to-day farm management decisions basically and we didn't get a clear answer they have agreed to come back in writing and we'll see but that is why I am keen to see more definition because I think there is a need to and the last point I wanted to put to you is do you think there is a need to manage expectations here to a certain extent because there is on one side some people believe that this is going to be land managers simply telling communities what they're going to do on the other side there will be communities expecting that they are now going to be consulted on every day-to-day land management decision that exists and that's why I believe we need more clarity because that level of uncertainty is frankly not helpful to anybody at this stage any comments? A comment from Andy Wightman As I said earlier I think it's important to try this and just see how it goes without being too prescriptive but I do think that one of the most important parts of this guidance will be on the question of simply engagement not consultation or having communities involved in day-to-day decisions that would patiently be ridiculous and I don't think anyone is proposing that and if it gives any comfort to those who fear that then I would have no problem in putting a statement on the face of the bill to the effect that this guidance doesn't relate to day-to-day business arrangements or whatever but I think one of the most important things it can do is to encourage a climate of engagement and that's just about talking it's about strategic level talking as well it's about the future it's about communities being entitled to a minimum level of discussion about medium and long-term plans that will impact because of the nature or character of the land or the scale of ownership or whatever that will impact on their own communities development and that's a legitimate thing to do and it's something that many landowners already do so I think that's the most important thing it's about engagement it's not about consulting on the practical decisions you intend to take with respect to the future of your farming business for example We're going to move on to the right to buy land to further sustainable development and Angus MacDonald is going to lead on this one The panel members from the submissions you've already provided showed that you're broadly in agreement with the provisions for the right to buy land to further sustainable development now it's been stated by Dr Robbie that there's a need for a definition of sustainable development and that's certainly an issue that came up with the government bill team last week however the SRU states in their submission that careful consideration will need to be given to whether sustainable development should be prioritised so I'd be interested to hear the panel's views and the necessity to introduce an additional community right to buy procedure in addition to those already in place and if in your responses you could cover how all the various right to buy mechanisms should coordinate with each other to ensure that they are straightforward to understand and to implement Jill Robbie first Thank you for the question I think it's very difficult just taking the last part of your question first there we now have several different types of if this is introduced right to buy each with their own separate tests and their subtleties and advising a community body on which would be the right one or the best one to go for I think would be very difficult especially in terms of the part A new party of the Land Reform Act and then this new land reform bill we don't have any precedent of projects which have gone through and have been successful so I think that increases the lack of clarity about the definition of sustainable development there being calls from many quarters including my submission to define that term some say that there's no need to define it referring to the decision in part Crofters against Scottish Ministers for 2013 saying that this is compliant it's ECHR compliant not to have a definition but I think in drafting a bill our aim should not just to be to do the bare minimum of legality but actually to pass clear accessible and certain rules some also suggest it's not desirable to define the term because this then gives an opportunity for people to get around the term but I think the lack of clarity also means there's greater scope for debate about what it actually means and some people have significantly more resources to put behind arguing what it means and I don't think those with less resources should be that this should have a detrimental effect on those people this is particularly affected by section 30 of the bill where there can be an appeal to the sheriff not just on a point of law so that increases the potential for significant debate I'm not convinced there's a sufficiently settled understanding of the term there was a book written about sustainable development law in the UK in 2011 by Professor Andrea Ross and she said that the UK's approach to sustainable development has varied over time between jurisdictions and sectors so that there's no consistent understanding of sustainable development with clear priorities and a framework for decision-making that exists in the UK so this leads to a lack of understanding by half of community bodies and on the part of landowners I think certainty is a very important principle because it's what land is what people's livelihoods depend on but also I think people don't necessarily put in effort into developing their land over a long period of time if their position of ownership is not predictable so now I think is the time because it's used in planning and other land reform statutes for giving more guidance as to what this term actually means one of the worst outcomes I think that we can have is that it's so vague that it becomes just meaningless there are various materials to assist on providing more detail about what the term means on a UK international level people like Professor Andrew Ross have been doing comparative work on how other jurisdictions are managing the term I don't think it's a solution to problems I think it's just a forum the term is a forum to allow concerns like social justice, environmental protection and economic development to be balanced and there should be transparency on how these various policy spheres are balanced from a more substantive point of view the current interpretation of sustainable development does not appear to allow the purchase of land to maintain the status quo and this appears to also prevent land for conservation purposes here I don't think the balance has been sufficiently addressed in favour of environmental factors and I think that that would be one issue I would want to see clarified in the future discussion of the term Stephen Thomson I would just like to Jill Robie's final point is the exact point that we were making in our submission is that when you're dealing with a very subjective term which is sustainable development what sustainable development means to me might be different to every single member of the panel here and every member of the audience because we all have our own weightings as to whether it's environmental focus or social or economic focus if it's down to ministerial decision then it depends really on what the objectives are and we've got to have clarity in this and this is part of the problem we have or it's not a problem part of the issue with the term sustainable development is it's so subjective and what it might mean to one community it certainly doesn't mean to another and I remember a couple of cases in the community right to buy where it was enacted that one individual community was refused because they didn't meet the criteria of sustainable development it would have been perhaps in their eyes but it wasn't in the ministerial eyes it goes beyond sustainable development if you read this section of the bill it talks about public interest what is public interest, who's defining it it goes on about significant benefit significant harm these are things that they're slightly subjective in terms of how are they defined and who is going to determine whether it's of significant harm to a community that they're not getting access to that land coming back to Jill's point in terms of the existing mechanisms and I think this answers part of the question you've already got the community right to buy and if a community is registered that right to buy I can foresee a situation where there's all of a sudden and the landowner is not wanting to sell you can foresee a situation where perhaps the community and the landowner start falling out on issues and using this piece of legislation as a means to an end in order to try and enforce a sale so I think we have to be very careful in how we deal with all of these different definitions Malcolm Coom and then Andy Wightman I take on board everything that Jill said about the need for a definition but I've become comfortable with the idea of sustainable development not being defined over the years and I think it has operated to an extent in the 2003 act there have been issues as Jill mentioned with regard to the sort of environmental sort of buyouts so to speak in terms of when someone's not seeking development but to a certain extent it might be that that's been caught by the new Part 3A which allows for a community right to buy in terms of wholly or mainly abandon on neglected land and or when there is an issue with the community's environmental well-being so there is then an issue I suppose in terms of what is the Part 5 right to buy about is it for more community empowerment and if that's what it's about that's fine maybe the one way of differentiating this right from what goes before would be to move away from a sustainable development test and that's something I've not actually addressed in my own evidence I'm going out in a bit and a bit of a wing and a prayer here but it's something to consider but as I say I'm relatively comfortable with how sustainable development has functioned in the 2003 act and what might come here but as I say it's what's in Part 5 to my mind it's reminiscent of more community empowerment which is fine if that's what the bill's about so Malcolm Coonman Lord Gill seem to be on the same side in this particular argument I'm happy with that, good company Andy Wightman right to answer Angus's question I am comfortable with this new power I've never been a fan of the whole community right to buy framing of this I think local authority should have been involved in this right at the beginning I think it's very testing for communities to have to set themselves up using a corporate vehicle established for companies in the 19th century although that's been relaxed somewhat in the community empowerment legislation but nevertheless I think we have now got a potentially very complex legal environment not least of which in the register where you have this register of land for sustainable development a register of community interest in land a register of crofting community a register of abandon neglected etc none of which incidentally are integrated with a land register so someone searching the land register will get no hint that there are these statutory restrictions these existing registers the register of community interest in land for example is simply a register of scanned PDF documents there's no digital mapping so I think now we've got four very distinct communities to buy or with this one it will add a fourth we do need to think about how the administrative law particularly around these rights is framed and therefore I think there should be much much more co-ordination and this law should be much much easier for communities to understand I've worked with communities trying to use the land reform act 2003 they find it difficult even to navigate that never mind having to navigate a choice between another one or another two rights to buy they might have on the sustainable development thing I agree with Malcolm this has been adjudicated on in the courts at the end of the day this is a decision for Scottish ministers again I don't agree that Scottish ministers should be making these decisions they should all have been put down to the local authority level way back in 2003 but we are where we are and I think it's really important to emphasise the fact that the reference to sustainable development is in the context of ministers making a decision and to be satisfied in section 48 to A that making such a decision to grant a right to buy is quotes likely to further the achievement of sustainable development now we can all have different definitions of sustainable development but given you have to assess the likelihood of furthering an achievement of a nebulous concept I think there's no need to define sustainable development because it's wrapped up in these three massive qualifications Sarah Boyack wants supplementary it's really sparked off by that last comment one of the the challenges is you will have a choice of different form legislative options and it is a question about how that might be made straightforward for members of the public and for landowners about how the different the three acts we've currently, when we will have actually interplay with each other I'm quite clear that what we should be I remember walking down Princess Street in 2005 or six or sometime and I saw billboards on the bus stops that said do you know about the outdoor access code it was promoting part one of the land reform act to the public part two was never promoted there was never any promotional effort to go around community councils, local authorities, civil society women's rural voluntary service whatever citizens advice bureaus to say do you know about this new right never any effort to do that I think there should have been and I think that community should when they're being invited to consider exercising any of these rights are entitled to expect that in administrative terms they should be able to say we would like to take on this land which of these options would you like would you like a right to register do you think it's abandoned and you could buy it now do you think it meets your goals et cetera it should be made much much easier rather than leaving communities to navigate these very complex legal frameworks and to second guess what decisions ministers might make in each of these three circumstances which is almost an impossible position to be put into we need to move on we've got a final part on this I think just now from Angus Macdonald and Alec Ferguson wants to come in after that can we know we've heard from Andy Wightman's view on sustainable development but just for clarification and for the record can we have a comment on the definition of sustainable development public interest significant benefit and significant harm and whether that should be on the face of the bill and when considering how significant benefit or significant harm is to be interpreted how will the provisions ensure that adequate consideration will be given to the impact on the land owner Andy Wightman Well on your last question that's part of the tests that ministers have to apply in making their decision I'm quite comfortable with the question of public interest that's already a well established area in law going back to the 19th century with commercial purchase legislation which in itself was an attempt to provide one legal environment for what had previously been a whole series of separate private acts acquiring land to build railways et cetera I'm not happy with the clause on harm I think that should be removed from the bill I think that clause in effect renders this power virtually meaningless Do you have a final Alec Ferguson? I would just contest what Andy Wightman says that the impact on the land owner is addressed in the four key points that communities have to meet because again as we put to civil servants last week it seems to me that if you look at those tests and the rights that a land owner has to make representations on the impact that he believes a right to buy would have on the business the sustainable development of the community then supersedes the case of a sustainable development of the business and I think that is something that we need to address as we go through this Andy Wightman first and then Malcolm Coom That's a fair point but in law this is providing communities with a new right to buy and there's a decision maker who has to balance up whether the criteria on the face of the bill are met by the application and also has to balance that with the evidence supplied by the owner so that has worked to date by and large in the 2003 act there's no evidence that it wouldn't work going forward with this but if this by the nature of the new right that's being granted here were to introduce new problems and I'm thinking particularly of the complexity of decision making that ministers are faced with when making decisions like this it's one thing to consent to register an interest to buy at some undefined data in the future which by and large doesn't make a great deal of difference now it's quite another to be consenting to the involuntary transfer of land from a landowner to community body so the concerns you're raising now may actually be relevant to this but I'm not sure we can anticipate them in advance of the act being enacted and being used and exercised okay Malcolm Coom to finish up this section just a very quick point and it's bringing it back to the law and bringing it back to the European Convention of Human Rights I know there's a lot more to it than the European Convention of Human Rights but a landowner is obviously entitled a peaceful enjoyment of his or her possessions so the significant harm, the significant benefit sort of test that's added on is part of making sure that that is not disrupted in a way that would be in breach of that system but I would also just very quickly draw another analogy with Lord President Gill in the park case where for example he said the landowner didn't necessarily have an expectation in the ECHR for a ballot you know these are things that went beyond what the ECHR necessarily required for some kind of intervention so provider obviously there is compensation it's non arbitrary etc you could still get ECHR compliance perhaps not needing the extra tests about significant harm and significant benefit I'm just as I say there's more to it than article one protocol one but this might be going beyond it and that's fine if that's what people want to do and Stephen Thompson on this point yeah just to think about this in a slightly way the bill actually itself says it's resulting significant benefit to the community or it would result in significant harm to the community it doesn't mention landowner so we have to throughout this whole bill I think you have to think it's got to be balanced it's got to take into account landowner and community interests and that goes in the tenant farming commissioner it's not just about the tenants it's also about the landowners the whole thing has to be balanced I think and just the way it's word it suggests that it's in the community's favour here ok thank you for your evidence on that common good land final part of this panel and this is Christian Allard who is going to lead thank you very much convener and first of all I would like to thank Microsoft for allowing me to come in sky this morning it's a fantastic day a beautiful morning in sky regarding common good land the committee has received three types of evidence written evidence one from Andy Whiteman for example who talks about very modest but welcome reform but maybe he want to develop on this as a second part of written evidence we've got some coming from the Royal Institute of Shattered Surveyor what different tack on it and saying that the provision relating to common good have to be considered further with the view to exploring the possible abolition of common good property and how this might be achieved while leaving such property within the ownership of local authorities and the third type of submission we have received is people making no comments whatsoever on the common good land and I would like to challenge the people who came this morning to tell us more what kind of predominance if any should common good lands take part in this legislation so Andy Whiteman thank you very much obviously this very modest reform is being put into this bill because it's an available legislative vehicle to overcome what as a consequence of the Portobello decision was a defect that was identified in the 1973 local government act whereby a local authority had the possibility of going to the courts and seeking approval to dispose of common good land but had no avenue to seek to appropriate it and use it to another use and it seems bizarre that parliament had intended them to be able to dispose of it all be with the approval of the courts but have absolutely no legal vehicle whatsoever to appropriate it and that seems so in the sense this is just remedying the 1973 local government act on that point on the wider point there were other reforms put through the community empowerment act in terms of setting up a register we'll see how that works out when almost every local authority in Scotland has a different definition of what they mean by common good and there is no statutory definition I'm very clear going back to 2005 when we produced our paper on common good land that this needs a fundamental legal reform this is an area of law that is still governed fundamentally by an act of the 15th century I take extreme exception to professional bodies like the Royal Institute of Chartered Severe suggesting that the oldest form of community ownership in Scotland should simply be wound up I think that's an incredibly arrogant view to take of a very very important part of Scotland's heritage and finally on those who give no comment I think that is symptomatic of the fact that this area of law is so old so complex and so fundamentally based on case law with very very few statutes there is only one statute in terms of the common good land itself which is the 15th century the 1973 local government act and merely makes provision for how you transfer that and all the rest of it is symptomatic the fact that people are confused about this don't feel qualified to make a comment and that shouldn't be read as people not being interested I now have engaged with over 100 communities around Scotland with serious concerns about common good land from all sorts of points of view over the last decade there is huge interest in this but there is not the is not sufficient grasp of the detail of this people find it just far too complicated and perhaps many people coming to this bill were coming to this bill from a rural perspective I'm not sure how many people came to this bill who lived in Scotland's 196 former boroughs Malcolm Cwm I fall into the camp of someone who didn't say very much about common good but that's not because I'm not interested in it and indeed I've written about the potabella litigation and as Andy says this is a solution in terms of sorting out the appropriation versus disposal problem and that's fine so as a legislative fix I'm perfectly happy with that to make a more general point yes as Andy says the regime can be quite opaque and difficult to understand but I'm going to make an analogy which is probably appropriate for Sky to crofting law in terms of I know Jim Hunter who's been involved in various crofting borys in the past he's been on record as sort of saying you wouldn't design a system like crofting if you were to start now and you almost would want to rip it up and start again if you do there is a severe danger of throwing the baby out with the bath water so you've got to be very careful if you were to come forward and say let's just abolish it goodness me what kind of vacuum would you be left with so yes what's there as Andy says for all the reasons that he's mentioned it's not necessarily very easily navigable and whatever but I think if you were to just do away with it that would be interesting interesting point but we'll finish this particular session just now okay that was a very useful panel thank you very much for answering our questions we're going to take a five minute break just now in a mean five minutes we have a much larger panel to get on the stage here so please bear with us but thank you for your attention and we've got a five minute break now we'll restart now with continuing with agenda item one land reform Scotland bill and we now have a larger panel, our second panel today which includes Sarah Jane Lang director of policy and parliamentary affairs for Scottish land and estates Peter Peacock policy director community land Scotland Archie Rintool senior vice chair of the Royal Institute of Chartered Surveyors Andrew McCormick vice president of the national farmers union of Scotland Pete Ritchie executive director of Nourish Scotland Andrew Prendergast the development officer for the Plunkett foundation Scotland John King business development director in the registers of Scotland Fiona Mandevol chair of the Scottish Crofting Federation and welcome to you all on the panel there is no need for everyone to answer each question and if you just indicate to me I'll call your name so sound can hear who it is and we will kick off in fact with a fairly similar question to that at the beginning of the last one on land rights and responsibilities statement you've heard the reactions of the previous panel about this does anyone have anything in addition to add to the question about how the current provisions might be improved should Parliament endorse this what other land use policies and strategies the statement could meaningfully link with and whether updating or reviewing this every five years is likely to lead to inconsistency or instability in the property market but if there are areas that you wish to comment on just indicate to me just now okay Andrew McCormack thank you NFUS thinks there should be an emphasis within this proper regard given to agriculture we are the main user of land we need someone in there that has a proper definition I hope we are doing on this land we are currently exporting 1.1 billion worth of food 5.1 billion pounds worth of a food and drink and it's one of Scotland's key strategic policies is food and drink and not to have this direct reference to the main land user very remiss as far as we are concerned our members are very upset with that Peter Peacock first of all we can ensure that Scotland is very supportive of having this statement we're not entirely convinced it's the right name for it Andy Wightman made the point about is it a statement of government in which case why don't we just call it that it's a statement of ministers objectives for land reform if it's a statement of land rights and responsibilities then it's well titled that's just a comparatively small point I think that if you read the policy memorandum it's very clear what the purpose of this bill is in a variety of regards and it's about furthering sustainable development it's about greater fairness greater equity it's about the achievement of equality the achievement of human rights and so on and for our money we would quite like to see ministers when drafting this statement for consultation and for approval by parliament I should add that they should be required to have regard to those kind of principles so for our purposes we would like to see that in drafting the statement ministers should have regard to the progressive realisation of human rights it's one of the outcomes of that statement of furthering sustainable development and we'll come back to that no doubt about furthering the achievement of equalities and also about achieving a greater diversity of ownership and we think that would provide solid guidance for the broad framework of this statement it's going to be a very important statement in informing the work of the land commission amongst many other things as I say I think consultation should on it should be made explicit on the face of the bill I think parliamentary approval of it would be desirable for a variety of reasons that were previously discussed and perhaps reporting progress every couple of years to parliament I hope ministers believe has been a success or otherwise of the statement in delivering against those kind of objectives there's one other point that we wondered whether and it's just for I leave this on the table for the committee to think about we wondered and indeed for the government to think about we wondered whether there might be an additional set of provisions to allow ministers to establish national priorities in land reform for fixed periods of time so that they could say that within these broad objectives we would actually like to see a lot of progress on this aspect and that aspect of land reform over the coming three or four year period and allow them to direct policy in that way but I'll leave that thought with you So Sarah Jane Lang I think just to pick up on what Peter said there about outcomes I do think the statement should clearly set out what success looks like in terms of meeting land reform objectives I think it's critical for both clarity and certainty for all interested parties but also if the land commission is going to have a role in reviewing progress against the land reform objectives we have to be clear as to what house that success would be measured I'd concur with the comments earlier about the helpfulness of debates in Parliament especially in terms of clarifying meaning and intent of the statement and in terms of what else the land rights and responsibility statement should refer to I've heard lots of comments about the land use strategy I'd like to mention the national planning framework I think it's kind of been forgotten a little bit in terms of the linkages with land rights and responsibilities and also the national performance framework my hope is that a land rights and responsibility statement or indeed a national land policy would give a framework for some kind of coherent approach to land policy in Scotland has been mentioned we have a number of competing land uses and it can depend on which ministerial objectives you're trying to meet in terms of which one take priority at a certain time so a national land policy would give us certainty in terms of what we're trying to achieve together That's our commentary from Graeme Day Thank you, Graeme Just for the purpose of clarity Would the panel accept that the statement should include also reference to the impact of land use so that we're clear that within the land reform agenda we take cognisance of things like biodiversity and climate change I think there will be a very sensible approach convener and I do think you have to look not just at the short term but in the long term impacts of land use especially in relation to biodiversity and climate change so Pete Ritchie and with Andrew Faff, the importance of food growing in this whole debate we do need to think of the land as our fundamental resource and that we need a long term policy ensuring sustainable food production and I think the land policy should underpin other things like the national planning framework and the regional plans, CES plan in our area is just going through at the moment and it would be very helpful to have a statement of very broad, deep principles that underlie that set of legislation as well we've also said in other evidence to things like CES plan we'd like to see things like food belts designated around our major cities so that you have a very coherent approach to the food that can be grown near cities actually to strengthen regional food economy so a proactive approach to land use planning and land management would be great and just to add to the long list of things that the land use policy would want to underpin we also have to remember the marine environment which is obviously a big part of Scotland's territorial land and also soil in this internationally of the soil one of the things which land use policy should stipulate is the importance of soil and soil preservation and the maintenance of topsoil and certainly Narrish would like to see a concrete tax introduced at some point so that if we do start building on topsoil and sealing it we have to actually make provision for the 100 years of photosynthesis we're not going to have on that bit of ground Fiona Mandible at land rights and responsibility statement this should be and would be the benchmark that Land Reform aspires to it would be a clear statement of Land Reform intentions would also be a clear indication to other countries throughout the world that the Scottish Government is heeding the importance of that we think that it should include reference to increased public benefit from Scotland's land resource more transparency of land ownership and use and the specific desire to increase the diversity and number of people managing and occupying Scotland's land through small units such as Crofts Woodland Crofts, small holdings and allotments Andrew Prendergast I would just like to concur with what other speakers have said regarding that the LRRS should go beyond simply being a statement of minister's objectives and we noted that the Scottish Government actually put out a kind of a starting point which was a vision and the seven guiding principles for land reform in its and called it Land Rights in the 21st century Scotland and we thought that was a good starting point to start to shape a sort of a conversation to start to shape a comprehensive national land policy Thank you We move on to the questions about the Scottish Land Commission just now and they're going to be led by Dave Thompson Thank you, convener Just to maybe put this one to bed very quickly possibly the last panel was fairly clear on the view whether reform needed to be in the title of the Scottish Land Commission Is that a view that people just generally accept? It's not necessary that you know to have that word in there any particular views in that quickly? Sarah Jane Lange I totally agree that it's not required and the Scottish Law Commission is there to review and reform law and it doesn't require reform in its title so I see no reason why the Scottish Land Commission should have reform Fiona Mandeville Actually I think my organisation thinks that reform should be in the title it indicates a willingness to improve and keep on working on land reform it sends out the right signals I think Peter Peacock Peter Peacock Thanks thought it was being censored before us We would be in the camp that would prefer to see the term reform in the title It's not a lot in the name but the policy memorandum makes clear that these set of proposals are about reform and this proposal itself comes from the land reform review group report where it was clear that reform was about measures that modify or change the arrangements governing the possession and use of land in the public interest and therefore that is about change and driving change that's potentially very controversial over time and I think it would be preferable if it was up front and I take the point that some have made that if the inclusion of reform in some way artificially narrowed the work of the commission then that's a consideration but I think there's a signal of what the intention is here to drive change in our society fundamentally then it could well include the title reform in its title Hartshire into Thanks Conriner I say don't believe that it's necessary to have the word reform in the title we think what's important are the functions which the land Scottish Land Commission will have and the act itself should set out what those functions and those responsibilities are and it doesn't really need the word reform necessarily in there in order to identify what the purpose of the commission is Thank you Dave Thompson Benar I just wonder in terms of the public consultation in relation to the commission's strategic plan the bill has written doesn't require any public consultation it just needs to go to the minister and that's it I just wonder what the panel's views are about that do they feel that there needs to be public consultation Andrew McConnick I think our organisation would feel that it was absolutely essential that this was out to consultation to get the broad view at what everybody involved has to do with this we've all got to get where input we're feeding to this to make sure it's delivered properly and I think it should eventually go through Parliament it's got to have the power then at the end of it to be taken through Parliament and have the force of Parliament behind it but the consultation is absolutely essential to get the broad depth of views from every party that's interested Peter Peacock is in favour of it requiring on the face of the bill to be required to be consulted on just to make that clear but also not just the strategic plan but the work program as well and we think that's important that's on the face of the bill Andrew Prendergast I'd just like to add that we definitely think that there should be a statutory responsibility to consult widely on the commission's work program and the strategic plan and just pointed out it's slightly odd that Parliament commissioners but they're not actually required then to debate what it is they do in their sort of strategic plan so I thought that's something that really should be looked at Dave Thompson On the point of international land policy which I think Community Land Scotland commented on I just wonder if the panellists are of the view that the the bill and so on could be improved with some kind of inclusion and a mention of the international covenant on economic, social and cultural rights Peter Peacock We would strongly support a number of references actually to that throughout the bill that there's an important reference could go into part 5 but I'll come to that later and I think too it'd be important to make it clear that in the functions of the commission that they are part of their responsibility is to be aware of, monitor, keep abreast of all the international obligations upon us and to therefore commission work to do that and to encourage expenditure on that and that's not clear at the moment and I think it'd be helpful if that was done and it could perhaps be picked up in references around what Mr Thompson suggested Richie Cultural rights is an important part of the backdrop to this legislation and we'd like to see that implemented incorporated into Scots law because it also for us very important contains explicitly the right to food and the right to appropriate and accessible food we think that the UN voluntary guidelines on tenure that Andy Whiteman mentioned his evidence are also part of the backdrop to this we think the more that this act is actually grounded in international law the stronger and more robust it becomes and the better the debate we have about the fundamental principles underlying it I do think it's really important that we keep moving this debate on in a wider context both historically and internationally Dave Thompson too You can be there just to move on again just wonder if panellists have a view on whether the LRRS and the strategic plan of the commission should have a statutory link and you know should the commission really have a requirement to integrate its work across the range of land use policies and strategies and so on Andrew McCormick I think you need to take the whole there's a whole lot of land users out there we need to involve everybody in it we're quite supportive of a great broad range of people on and working with land and occupying land I think we need to pay a bit more attention to our tenant farmers and tenant crofters these are part of what our agricultural community is which is part of the communities that are around Scotland so we do need to take that into account Peter Peacock Yeah one of the things that the community of Scotland has commented on right through the process of the land use strategy being developed which of course itself has got a statutory basis and requires to exist by statute and therefore maybe cannot formally be part of the commission's work I don't know about that that would have to be explored but one of the things we've said in a number of representations about the land use policy is that it has avoided anything to do with land reform as if you can somehow separate out land use and land reform entirely and we just think that's a bizarre idea and therefore the commission if it's to do its work effectively and properly would have to have the ability to take account of all these other policies and make sure that they're properly integrated in any decisions that they are making and taking account of Does that finish your points David? Okay One final point convener about the range of expertise and experience that the commission should have you'll see that there's a list, a restrictive list I suppose of experience and expertise in the bill in relation to the commissioners of course there's a five commissioners plus the tenant farming commissioner is it necessary to list any relevant factors in relation to that or does that make it too restrictive or would it be better left open I mean there's a huge variety of different things that need to be taken into account and I mentioned Gaelic earlier on and got support and I wonder if some of the panellists might want to comment on that again as well but should it be kept open in other words is it too restrictive as it is? So Andrew McCormick Thank you, yeah I think I stated it fairly clearly earlier on I think agriculture has to have a definite presence in this we are the primary land users we need to be there and seem to you because what we are delivering is not just farming we are delivering jobs beyond that as explained in the food chain we are supplying a lot of employment a lot of infrastructure by our presence there that information has to be available to the commission they have to access the right people with the right answers for that to help to make this development Sarah Jean Lang I would like the list to remain un-exhaustive because you may find that in five or ten years time which of course the act will still be around then that you need different expertise depending on where we are with land policy so I would like to be able to call on expertise at that time I would echo all the calls for practitioner involvement someone who has actively managed land you would expect someone on the Scottish law commission to have practice law so it would be good to have someone on the Scottish land commission who whether they have managed in state a community state a crofter, a farmer someone who is a practitioner in land management for us that would be an essential criteria Graham Day would like a supplementary If I may give you a thank you for that man Given the conflict which can arise between the use of land for food production and forestry if we were to have someone representing the agricultural sector would we not in the interests of balance then require somebody from the forestry sector While you are answering you can perhaps take that point as well Peter Peacock, Archie Rintol, Fiona Mandovel and Richie In Graham Day's question therein lies the dilemma of how you make it a representative body and I think for our part that we are pretty clear in fact we are very clear it should not seek to be a representative body because it would be impossible to be representative with five commissioners of all the interests in land before I came here this morning I was just thinking about this question because I thought it might arise and I just quickly jotted down 18 different interests just literally as I was thinking so how would you pick to make sure it was representative of the purpose of the commission and this is absolutely crucial if you don't get this right then the commission will achieve nothing and for our money in community land Scotland we are not seeking sectoral representation and we are not seeking it for anybody else either you should be clear about that but what we are after are people of stature people of independent mind and independent thought people who have got integrity who understand public policy and public policy objectives that the government are trying to achieve who have got public interest matters that they can weigh up in their mind who are analytical, who are questioning, who are challenging rather than being seeking to be representative and I think we take that position not just because we think that's the right approach to get that proper consideration dispassionate consideration of what will be very challenging issues over time but also it's in recognition of the way the government have sought to structure the commission itself which we think is not far off being pretty well right, I mean we would like to see entering the spirit of the short list that's there on the bill at the minute we would like to see other expertise in human rights for example inequalities in community development being represented in the commission to complement those skills but also remember that the commission itself and its staff could employ specialist expertise in the sectors that regard that as an important thing to do but also the commission is empowered to set up sub-committees which don't only involve commissioners and therefore it's entirely within the powers of the commission to access all of those 18 and many other bodies that I'm sure I haven't listed into the discussions of the commission in an ordered way so you're not in any way deprived of getting that expertise but the commissioners themselves have got a different obligation it seems to us and that they should be able to set apart from all of those specialist interests and competing interests very often and equally set apart from ministers in making their judgments and making their recommendations and if we don't get that then we would really fear for the commission grinding to a halt very quickly and not being able to make the important recommendations they are bound to want to make over time because they couldn't reconcile competing representative interests on the commission Thank you for that Thank you I think it's important that we don't see the list in the draft bill as being exhaustive It's a range of potential areas of expertise but it should certainly not be exhaustive but I think I agree with Peter that what's important then is that the commissioners ensure that the consult stakeholders widely in putting together their strategic plan and that they use the expertise available much more widely in their committees subcommittees which they put together to ensure that they do make use of all of the expertise available and all of that expertise can feed into their strategic plan and the other areas which they are looking at Fiona Mandeval Thank you We think it's important that somebody from a crofting background should be included on the commission Crofting operates under different set of regulation from the rest of Scotland and therefore it's important that somebody should be there from that perspective whether it's a practitioner which would be ideal or somebody with expertise in crofting law Ideally somebody with expertise on land use and crofting law would be ideal but that's probably a bit too much to hope for I also wanted to say which I forgot to say in terms of whether it should be the land reform commission or the land commission and I said it should be reform commission The concept of a land commission smacks a bit too much of colonialism and we want to get away from that we want to adopt the importance of land reform as the Scottish Government is working towards very commendably Thank you Pete Ritchie I think this idea of a list of people who should be on it is a hostage to fortune and should be deleted Everybody's going to say why isn't my person on it These commissioners have got to be as Peter says people of stature, they're responsible for the task they're not responsible to their constituency or to their profession they're responsible for over a period of time when we're talking decades moving the land rights and responsibility statement into reality that's their job and they should be allowed to stick to that and not be picked on whether they're a farmer or a crofter or a surveyor or anything else Andrew McCormick Thank you I was trying to emphasise the expertise that we were looking for I was looking for a representative it was expertise I was particularly anxious to get in there because of what we actually represent it's the expertise of our representation that I was seeking to get in Sarah Jane Lang to finish this section so we move on Just a quick point convener can I just stress the difference between sectoral interest and practitioner interest many in fact most land managers now require to be involved in integrated land management and the same with forestry, farming, tourism, community we land all in the same pieces of land so we're not talking about sectoral interest we're just talking about someone who has practical experience in land management of whatever type Peter Peacock Sorry, convener to interrupt the floor of your meeting but I think there's something missing to from the bill in relation to the commission and I'll flag it here but it may become more in part 5 as well Ministers have got the power to refer any matter on land to the commission I think that's a very good thing to have so that the debate is not ever stopped and what was in the land reform review group report that isn't addressed in the bill is not off the agenda potentially however ministers don't necessarily have powers to act on all the recommendations that would come from a commission so for example if ministers referred to the commission and this is entirely hypothetical that they wanted the commission to look at a particularly large monopoly ownership in a particular area of Scotland and ask the question whether that was in the public interest or not on the face of it that could be referred to the commission we would think that would be a good thing theoretically to allow that power to be there if the commission came back and said actually we don't think it is in the public interest then there's nothing the minister on the face of it could do about that and for reasons I can argue later we think that ministers as well as communities ought to have a power to potentially act to further sustainable development but at their own hand not only through communities so I think that's a there's a gap in the armory there thank you to perhaps think about I think we will deal with that in part 5 we're looking at part 3 next on information about the control of land and Sarah Boyack will lead on that thank you very much convener well I started with the basic comments in the policy memorandum that there was a clear public desire for greater transparency and my last set of questions to the panel would tease out how that might actually be delivered in the bill and I kicked off last time on the issue of EU registered entities not being what being required as an ownership criteria so I'd like people's comments on the fact that it's not in the bill and what their views on that omission are Peter Peacock yeah thanks we think this is really the weakest and most disappointing part of the bill given where we were in the consultation process and listening to the evidence last week which I listened to online I became much more convinced that it was weaker than even I'd thought at that time and I think as Andy Wightman said today earlier that sections 35 and 36 if you enter into the spirit of where the bill is currently got even taking that as a reference point these are particularly weak provisions because they're asking the committee to approve a bill which give regulatory powers to empower the keeper to ask certain questions the answer to which might well be I'm not giving that information and that's where the matter stops so they're very weak and at very least we want to see request information to be changed to require information but I think the more fundamental point is that the presumption here seems to be wrong from our point of view the presumption seems to be that you can limit transparency unless you can show a reason for openness whereas our view would be you should be of entire openness unless you can show a reason for secrecy now I accept in the spirit in which I think Joel Roberts mentioned earlier that there are circumstances where you should not disclose an ownership for example a woman subject to domestic abuse and the court protection orders and so on it would be clearly wrong to have that information in the public domain but that can be readily argued and so I think the presumption is wrong it seemed to me in listening to the evidence last week that this is the position the government have got to is twofold one is that they don't think what the original proposal was would deliver the policy outcome as they wanted but I don't think that's a reason for not completely delivering those not to take the first step along that road so I think that would be one thing to do there was also an implication at very least that that owners had a particular right to secrecy and you have to have very good reason to require openness and that was found that it seemed to me in ECHR considerations but I think the rest of us have got human rights as well and I think that communities have got rights to know and I wonder if there aren't justifications within ECHR that would balance out equally the owners the provision for owner secrecy that seems to be driving what's lying behind where the government have got to they seem to be fearful that by requiring openness as a presumption you're somehow breaching ECHR now I don't know if that is the detail reason but I hope the committee can probe that and can push this to the absolute limits of testing how acceptable getting back to where we are where this is a very complex area of law I have not the slightest doubt but I don't think we're in the right place on this right now I'm going to bring in John King now from the Registers of Scotland Thank you, convener I think it was Jill Robbie said that there's been an awful lot of good progress being made in terms of property and land law over the last few years and one of the aspects of that has been around transparency so I know it's not in the face of the bill but the announcement that ministers made last year when they invited the keeper of the Registers of Scotland to complete the land register in 10 years that's a big step towards transparency because unless we have that top level transparency about who owns land and the extent of the land they own it's very difficult then to drill down into different layers of transparency in terms of the bill we've just taken section 36 which is the provision around the keeper being able to ask for information and it's asking for people to volunteer information and we fully take the point that yet you can ask and sometimes people will say no from the keeper's perspective we're not starting out from the assumption that they will all say no if this is the provision that goes forward we see our role as being to inform, educate and encourage people to provide that information and there's a bit of a double edge sort here because the people that will ultimately provide the information are solicitors it's they who make the applications on behalf of their clients so you're dealing with a single group you're dealing with a law society who we have a very very positive working relationship which is another plus point equally we're aware solicitors have a duty to their client and there will be occasions where that duty will override their desire to provide that information but we certainly see it as a step forward I do disagree with the comment Andy Whiteman made about seeing no value in the provision we do see a value in the provision we have asked for information on a purely voluntary basis without any statutory authority and in fairness we often get that information but what we do get is the why questions why do you want that information and the benefit of having something in legislation is it very strongly answers that why question and you can point it back to this is the will of parliament this is why we want information could I just say something on the section 35 the request authority is a comment that's cropped up from a number of witnesses when they've been giving evidence which there seems to be an assumption that this will be the keeper that would have this role and as far as we know ministers have made no announcement about who would be the body that would be the request authority certainly the keeper's views it should not be her the keeper's view is that her role is to maintain 17 public registers it's an administrative role it's not a judicial or quasi judicial role it's a request authority very much as a quasi judicial function so we don't consider that we have either the resource, the skills, the expertise or the facilities to be the request authority Thank you we've got several people on this Fiona Mandevo, Sarah Jane Lange Andrew McCormick and Archie Rintol we can be brief folks that all helps thank you Fiona I agree with everything that Peter Peacock said and I just also wanted to say that the crofters now under law have to be completely accountable they have to their ownership has to be certified they have to live on or near the land they have to work the land that should be expanded out to all owners of land in Scotland Thank you and now Sarah Jane Lange Scottish Landing States had no issues at all with the recommendation the consultation about the non-EU entities taking back to first principles as to why it should be included in the bill or not I think we're still not clear as to what part 3 is trying to achieve if we're trying to decrease the use of offshore tax vehicles that you'd have one solution if you're actually trying to address individuals communities concerns about who wins a field, who the drainage ditches belong to which aren't been cleared out, who's locked the gate that's a completely different solution the solution to the second one I do think has delivered in section 35 if it's the first problem that we are trying to solve here which is the government's government's desire to decrease the use of offshore tax vehicles I would like just to make a couple of comments there's often claims made that the use of such a vehicle is linked to secrecy now driving up here I drove through an estate which I think was listed last week in either the spectator or another newspaper as one of the largest offshore owners in Scotland there is no secrecy about his ownership the family has owned that estate for 30 years there's big signs to the estate office the owner himself has funded planning applications and indeed I think every paper in Scotland carried a recent article about the number of helipads that current owner wishes to use so I think it's what are we trying to achieve here if we're trying to achieve access of community and individuals about information who's making land management decisions I do think in section 35 it's quite a useful tool I can have to ask you at this stage about the alleged 750,000 acres that are in trusts a land in Scotland that's in trusts I have no reason to doubt that that figure is inaccurate so therefore there might be quite a lot of land that you've driven through but it wasn't that the owners were not known even locally or indeed I think even land which isn't owned and trust convener there are people who don't know who the owner is an individual can buy I mean I have to say there's a field near near and near the borders and none of us have a clue who bought it off the former owner although we've tried to find out it's not just about trust it's about accessibility of land information indeed other people may come back on this but Andrew McCormick and then Archie Rintill our members have no issue at all with transparency it's quite a good thing to have it out there for that but we have real issues with what this information is going to be used for going back to what Jill Robie said we don't want malevolence to be a factor in these requests and it came back to that a justifiable reason for the best in that information what is a justifiable reason why are they doing it if we could get a definition on that so people understand why they want that information and the reason for what that information fine but transparency quite happy to have it and Archie Rintill thank you convener RICS was certainly disappointed at how limited this part of the bill was in its wording that land ownership and who controls land ultimately should be as transparent as possible and that property markets work most effectively and efficiently if the who controls the land as well as who owns it is actually known so we'd certainly like it to go much further than it does at the moment we also wonder why in section 36 if the keeper has the power to enable to request information why that simply isn't made compulsory Graham Day has a supplementary question at the moment thank you convener at the risk of getting off at a slight tangent I want to take the opportunity of having Mr King in front of us to ask whether the registers of Scotland has sufficient resources and is getting sufficient buy-in at the moment from land owners to believe that you can complete the register by 2024 the short answer is we're very confident at this moment in time there are effectively three strands for enable completion there's the provisions which Scottish Parliament brought into play with the Land Registration Act of 2012 so essentially that's market forces Parliament increased the number of events which would trigger registration in the land register and we've seen about an additional 10,000 properties urban and rural every which we anticipate to come on over this first calendar year and then we'll see that's equivalent number there after so that alone has a huge impact the area you're probably referring to is we're trying, we are working to encourage people to voluntarily register their land and our main focus is with Scottish Land and Estates and with the largest states so we're targeting effectively the top 10 top 15 large land owners in Scotland and I have to say we have had tremendous support from Scottish Land and Estates and from some of their members we are starting a pilot with Baklu Estates who we believe are the biggest private owner in Scotland I say believe because that's one of the challenges around completion, you know you have titles on the old season register as we've heard from others it's very hard to actually be accurate about how much land is contained within one of those titles but yeah we're working with Baklu we're working with Hopeton there are various other ones who have expressed a desire to voluntarily register so I'm very grateful for the work Pete Ritchie wants a comment on this just now before we go back to Sarah Boyack I want to go back to the substantive conversation we had before in the previous panel and the comment that it should be confident within Scots law to restrict ownership of land in Scotland title to entities that register in the EU and we just have to keep going back to why is that important and I think it's because transparency and openness mean that it's more likely that land is being used for its primary purpose of producing food supporting biodiversity underpinning economic development and generally not being used for tax avoidance and speculation so I think I would encourage the committee to have another look at this and see whether that section of the bill couldn't be strengthened significantly thank you back to Sarah Boyack for part of the question thank you it's been very useful to us I want to tease out the issue about the power to request information versus the power to require an answer and what the sanctions might be the minute I started asking what the sanctions might be in the last panel we've got lots of people saying don't go there so is it actually having the right legal requirement on the face of the bill to require answers that will then enable that transparency and that information to be delivered it's been suggested that it's too weak in the bill at the moment so there are a number of suggestions as to how to remedy that but without changing that we're not going to deliver the transparency which is the objective of the bill would that be the views of the panel John King I don't really answer that by analogy but the way in which land registration works is there are a number of questions on the application form and effectively unless all the relevant ones are answered they are accepted by the keeper so what that means is an individual or a company can't acquire their right in their property so if there was to be not just an issue like this but any real issue which involves the keeper making a determination about whether an application is acceptable or not the sanction generally always has to be sorry but you can't get your application on to the land register that's really helpful to have clarified the last question I want to tease out has been suggested by a couple of the witnesses writing and here today about this idea about whether it's appropriate to ask the question and what the motives are behind asking the question and I think Dr Jill Robbie suggested that the issue of somebody's signature for example being used online is there a common sense way to do that so that people's information is out there without necessarily every dot and comma of their personal details then being used in a way that is not appropriate John King again it's interesting if we go back to what Scotland has the world's oldest public property register which is a great achievement the register of ceasings and it was introduced in 1617 to prevent fraud because it took the view that actually there's less scope for fraud if you have more transparency so it's interesting again we're having the debate today in terms of having access to documents and information it's always been there in Scotland property deeds are publicly available I mean technology the argument I guess is that it makes them even more readily available but I guess the way in which land registration works it's not all predicated on a signature it's predicated on who the person is who walks into a solicitor's office so I mean there's obligations on solicitors to determine to know their client it's for solicitors to certify that information when they're submitting their application for registration so there's a whole layer of protection which is associated with the property transfer so there's a big role for the solicitor community in that I'm not sure that having access to information makes the risk of fraud even more prevalent a quick supplementary so to clarify if somebody does not give you the information they are not deemed to have registered the land so if a community wants to know who owns the land at that point there's no registered person or organisation owning the land so does that then make it automatically open to the right to buy under the term of this legislation I mean the position would be that if somebody is transactive to buy a land and there's a defect with their application they can't get their application on but what either the land register or the station register would show would be the existing or the previous proprietor they would still be listed as the owner in terms of the register okay thank you in line going back to the first question I was just trying to find the relevant section within the act my understanding is that sanctions can be imposed that the power regulation making powers allow for civil criminal penalties for failure to comply with the regulations for example failing to comply with the request for information without good reasons so it would appear that sanctions already and on your second point about information being made public one of the questions we asked was about how multiple requests would be dealt with because what you don't want to have is a very onerous system where information is requested but it's not then put in the public domain and someone the next door neighbour comes and asks for the information, the next door neighbour so I think we need to look at how we put the information that comes as a result of a request into the public domain so that others can then use it at the appropriate time fine thank you for that section we're moving on to engaging communities in decisions relating to land and Alec Ferguson's leading on this one thank you convener and I don't need to do a lot of preamble because I'm sure members of the panel will have heard the discussion on the previous panel and we don't really need to sort of rehearse a lot of those arguments again but you will appreciate that concerns been raised about the lack of detail about the guidance at the moment given if we accept that that concern exists I just wondered if anybody's got anything to add to what they heard particularly in relation to how the government could ensure that the guidance is compliant with other guidance that already exists on on land management and indeed on whether the guidance on engaging communities in decisions should be endorsed by parliament which I think is probably a general view that it should be to allow it to be further scrutinised but also and I know there is a variation of opinion amongst the panel members on this whether a carrot or stick approach should be engaged with where either party is reluctant to enter the process that's been developed under the guidance so if anybody's got anything to comment on those sort of three issues I'll be grateful any comments on that? Sarah Jane Llang Scottish Land and States recognises the need for significant improvement in terms of engagement between landowners, businesses and communities so we're supportive of anything which increases the opportunities for communities and landers to work together I think we're less concerned about the detail not being on the face of the bill because we have experience of working with the national standards community engagement and others so I think you already have guidance out there which is about proportionate approaches to community engagement I think Mr Russell and possibly somebody else talked about engagement can't just be telling people well it can't be but it can be informing people in certain situations it can't just be informing them when you're going to engage in certain land management practices engagement you're quite right is a two way process it's not just one person who engages and I think if you're going to look at sanctions you have to then look at situations where communities don't want to engage I think lots of land managers across Scotland have had the experience of sitting in drafty village halls waiting for someone to come and speak to them about their forestry strategy and what then happens if no one has come to speak to you and you have a shoulder willingness to engage what we're trying to achieve here though is attitudinal change, behavioural change it's about building trust and I think the more prescriptive you are the less likely you are to achieve that situation that we're trying to deliver here which is about dialogue it's about people working together to deliver a shared vision Andrew McCormack Thank you our members this guidance has got to be something that can be referred to and made use of and we think there should be something fairly robust in place in there for our members to know what the guidance is and to do that we think you should be engaging with the communities and all stakeholders involved with the land to get a proper set of guidance because it will come down to a stage where there will be a failure to comply with guidance and if we don't know what that means the guidance has not done the job properly so you need to have something there to allow people t