 Welcome to the 30th meeting in 2015 of the Rural Affairs, Climate Change and Environment Committee. This week committee continued its fact-finding visits on the Land Reform Scotland Bill and met with the Keeper of the Registers of Scotland committees. It is grateful to the Keeper and her colleagues at the Registers of Scotland for their time and their very interesting and helpful views they provided. Before we move to the first item on the agenda, I would like to remind everyone present to switch off their mobile phones and, as this may affect the broadcast system, however, members of the committee often use tablets on a digital provision of the meeting papers. The agenda item 1 is in subordinate legislation and it is concerning three negative instruments as listed. The sea fishing EU control measures Scotland order 2015, SSI 2015, slash 320. The water environment relevant enactments and designations of responsible authorities and functions Scotland amendment order 2015, SSI 2015, slash 323. The tuberculosis and specified animal Scotland order 2015, SSI 2015, slash 327. I refer members to the paper and ask if anyone has any comments. Mike Russell. To appear to be further drafting issues in these items, I just wonder if it's worth reminding the relevant department again that this does delay the passage of statutory instruments and therefore in the case of at least one of these is actually problematic in terms of implementing important changes. Yes. I see him. They are victimless crimes. Bad drafting isn't a victimless crime. Indeed, no. The Delegated Powers Committee has noted that the Government should and will bring in amending orders very soon. So I think we should note that, but Sarah Boyack. I think Mike Russell is very right to bring up that issue. I've not been on the committee for the whole of this session. Is this a regular thing or is that more of an unusual thing? I think it might be something that I want to log for consideration for our legacy report for the next Parliament. That's a very good question hanging in the air there. I don't think there's been too much problem recently than there were about three years ago. We can perhaps draw the Government's attention to this official report so that they understand our concerns about these things. There are often reasons which we might get informally about that depending on what the staffing levels are, et cetera, et cetera, I suppose. We need to know that. Thank you. So if nobody wishes to say anything else, I take it that the committee's agreed that we don't wish to make any recommendations in relation to these instruments. Are we agreed? We are agreed. Thank you very much. The next item 2 on the Land Reform Scotland Bill is this morning for the committee to take evidence on the human rights aspects of Land Reform Scotland Bill. This is our final stakeholder evidence session on the bill before we hear from the Cabinet Secretary and Minister in Dumfries on Monday 2 November. Prior to that meeting, we'll be hosting a public engagement session where members of the committee will be answering questions on Land Reform. So do your homework, everybody. Tickets for both the public Q&A and the committee are free, and people wishing to attend can contact the clerk for further details. We're joined by a panel of stakeholders this morning who are Eleanor Deeming, legal officer, Scottish Human Rights Commission, Kirstine Shields, lecturer and university of Dundee, Megan McKinnis, adviser in land and global witness, Charles Livingstone, partner in Brodys, Mungo Bovi QC, keeper of the library and the faculty of advocates. Good morning panel. Could I make a plea on behalf of the committee that in the language we use in this discussion it's one which lay people such as ourselves can understand, because legal terms are obviously the main means of communication between many of you, but they aren't with the real world. So thank you very much for that at the moment. I'm going to start off with the first question, which is a general one. Panel, I wonder if you see the principal issues arising in connection with this bill from human rights perspective, what they are, and whether you consider that the policy memorandum accompanying the bill is helpful in informing both parliamentary and public discussion of these issues. So that's what we want to say. If you want to speak up, just indicate and the automatic sound system will be brought into play. So just let me know you want to speak and I'll bring in people in turn. Who wants to start off? Kirsten Shields. Good morning. Good morning. Thanks for having me. The bill speaks to human rights on several levels, and I think it's useful to consider the human rights issues in terms of three groupings. So the policy memo to deal with that point firstly I think it is very useful in setting out the human rights issues. It has presented a balanced reflection of the interests and it also makes interesting statements about this move towards land as a national asset, which is a human rights based approach, which is promoted by the Scottish Human Rights Commission, which is promoted by UN agencies around the world and is well established as being the appropriate method to address land. So for example the policy memo paragraph 5 states Scotland's desires is to lead by example to address complex and often emotive history. In this the Scottish Government's desire is to move from a reactive place of addressing historic issues to a proactive position where governance of land is consistent with the aspirations and outcomes desired in Scotland. So at that point the policy memo is saying we want to proactively use land and proactively address rights, a far healthier position than perhaps the present situation where rights are not respected. In the present situation we can look at three groupings of rights. We have the landowners rights, which we know about. We have the tenants rights and we have the rights of the wider public. We haven't heard so much about the wider public's rights or particularly about the tenants rights. And perhaps to start with the wider public rights on the basis that the perhaps that grouping perhaps includes the rights of those most vulnerable and the largest number. What rights does the Land Reform Bill address? It addresses article 11, the right to adequate standard of life, including the right to food, water, housing and development. Under article 2 once states are under a duty to take steps to use their resources to apply the convention rights to their maximum availability. And under general comment 12 socially impoverished groups should be given extra support. So we have article 11 which sets out adequate standard of living for the wider public and in particular for impoverished groups. And from that we can draw the right to adequate housing. So the right to adequate housing is in article 11, it's also in article 25 of the Universal Declaration of Human Rights at the international levels. They're supported by general comments for 7 and 16 from the International Committee on Economic, Social and Cultural Rights. And we can go into the detail of that if we so wish. The right to adequate housing doesn't just exist at the international level however, there is also evidence for it at the European level. Although not enshrined specifically within the European Convention on Human Rights, it is enshrined in the European Social Charter as revised article 31. And the ECHR does implicitly include the right to housing because many of the ECHR rights rely on housing such as the right to vote and the right to education. So the obstacles to housing therefore create obstacles to rights and affect the state's positive obligation to protect those rights. Or maybe allow someone else to come in at that point. Thank you. I think there might well be indeed to thank you for that. Thank you. To the starter. Eleanor Deming. Hi. Yeah, we just kind of like to build on that and say that the broader human rights framework over and above the European Convention on Human Rights really does add a lot to the debate on landform that's going on in Scotland just now. And the UK is formally committed to a range of international human rights entrants in addition to the ECHR. So for example, as Christine said, the International Covenant on Economic, Social and Cultural Rights. And under the Scotland Act, international obligations should also be observed and implemented within devolved areas by both the Scottish Government and the Scottish Parliament. So when land is actually seen as a national asset, as Christine said, states are under a duty to take steps to maximise, to use the maximum of their available resources and to be clear that includes land and use all appropriate means to achieve progressive and full realisation of all the rights set out in the International Covenant on Economic, Social and Cultural Rights. So land is seen as a national asset and part of the available resources to realise everyone's rights. And that's true whether it's land as a private way or in any other way. And it doesn't mean at all that all responsible landowners should be dispossessed and nor does it mean though that the communities in the state should be powerless to act under certain circumstances. And it's really, as I'm sure you'll hear going forward about striking a fair balance between the three groupings that Christine mentioned. So the wider human rights framework I think is very important to inform the discussion, which is largely being focused certainly in the media on article one of protocol one to the ECHR. Does the policy memorandum make that clear? I think it does. It's certainly most of the specific content on human rights compliance. I think as you probably would expect given the ECHR status in our domestic law the policy memorandum does focus on ECHR rights. But I think yes, it does in the areas that Christine highlighted certainly bring into the discussion the wider human rights framework. We'll develop that with Charles Livingston first. Thanks. I think it's important to understand what we're talking about when we're talking about rights and in particular the fact that there are what's being discussed so far and what is in the policy memorandum a number of points. There are two different conceptions of rights that are at play. One is the conception that is generally found in the European Convention on Human Rights which is what you might call a negative conception of rights. There are also rights that allow the individual to prevent the state from doing things to them. That's more the Anglo-American tradition. Whereas instruments such as the International Covenant on Economic, Social and Cultural Rights they talk about rights more in the sense of placing an obligation on the state to do things for individuals. It's important to recognise that those are two different conceptions and that sometimes they will actually be in conflict with each other because in order for the state to do something for one person they may need to compel another person to do something that that person would prefer not to do. I think it's important just to keep in mind that distinction when talking about human rights and in terms of the status and domestic law I think it's also important to appreciate that the ECHR is incorporated into domestic law and there are obligations on the Scottish Parliament and Scottish Government to comply with it. Other instruments such as the Covenant are not incorporated into domestic law. Obligations under those instruments exist at an international level. The UK has obligations towards its co-signatories in such instruments to implement what the instruments want them to do but that doesn't translate into any rights that are enforceable in domestic law. In terms of... Because I understand in the Scotland Act schedule 5S72A calls on the Scottish Ministers to observe and implement international obligations. Thanks, I was going to note that. Pyrograph 7 is the Reservation of Foreign Affairs to Westminster. 7-2 puts in an exemption from that which is the implementation and observation of international obligations. That should not be read as imposing an obligation on the Scottish Parliament or Scottish Government to do anything in implement of international obligations. Yes, it's... Why not? Because it's permissive. What it says is that notwithstanding that foreign affairs are generally reserved to Westminster, that doesn't prevent the Scottish Parliament and Scottish Government from doing things that are consistent with the UK's international obligations. But it doesn't have the effect of incorporating those obligations into domestic law such that somebody could, for example, go to court and say that the Scottish Government is not respecting my rights under the international covenant social and cultural rights. So it's certainly legitimate for the Scottish Government and Scottish Parliament to take those things into account when formulating policy. But in terms of the domestic legal environment, I think it's important to understand that those instruments don't have the same status as the ECHR. They might be relevant to arguments about whether something is in the public interest and so justifiable under the ECHR, but they shouldn't be viewed as creating any freestanding obligations. I think this is quite near the nub of things. We've got some more detailed things about VGGT and things like that in a minute or two. But in the policy memorandum, as I said to Eleanor Deeming, do you consider that the policy memorandum makes its case clear about why the land reform proposals actually are necessary? I think it certainly references a number of different rights instruments and I think it does tie the proposals to those. I think it could be clearer on what status the Scottish Government understand those instruments like the international covenant to have. I also think, and I think we noted this in our submission, there are respects in which the policy memorandum could be fuller. Paragraph 199 sets out the test for justifying a restriction with article 1, article 1 property rights, but it leaves out of that test the proportionality requirement. So I think it could have been fuller in some respects. Sarah Boyack, then Dave Thompson. Thanks very much, convener, and welcome to all the witnesses this morning. I wanted to ask about the policy construction. As I understand it, the test is about whether it is logical and rational that the policy in the bill has been developed. One of the things we have definitely come across in visiting different communities and testing out with different witnesses is the lack of alternative routes to pursue people's access to housing or to pursue their individual rights. This bill seeks to change the balance of rights and to change the balance of power. I think that that is quite an important issue for us that what is in the policy memorandum is seeking to attempt to address a problem that individuals and communities have in gaining access, for example, to housing or economic activity. I was wondering if any of the witnesses would like to comment on that point. Thank you, and good morning, committee. I am very happy to be here. I think that I would just very much echo what Christine and Eleanor had already said in terms of the importance that the bill and the policy memorandum adequately reflect all of the Scottish Government's obligations with regard to human rights, not just those which are enshrined in domestic law. I think that we need to... I'm not sure if we would agree with Brody on this position. The fact that there is a legal remedy route for ECHR-based rights doesn't mean that other human rights obligations are somehow downgraded. They are still obligations, and across the world and other countries there is very much the framing of the six core conventions that's in the Scottish Human Rights Commission's submission being international human rights law, and these being obligations which the Government have to have progressive realisation towards, notwithstanding the lack of legal remedy, it doesn't mean that the actual obligations aren't there. So that's... I just want to think about there's definitely clarity needing to be had in terms of the framing of how we balance these rights. But to get to the questions, we are quite comfortable in a way that the policy memorandum frames these issues. Although we think that there could be more work done talking about the other obligations the Scottish Government has with regard to these other core conventions. But on the other hand, I think that the analysis that Global Witness did comparing the policy memorandum with the voluntary guidelines indicates that there's enough commonality there for us to be comfortable with. I think for us the question is the extent to which that language and the policy memorandum tap into the face of the bill and whether or not a statement, for example, around the description of the Land Rights and Responsibility Statements, whether those texts, at the start of that, in the face of the bill which refers explicitly to human rights obligations and, for example, whether or not it would be useful to follow what was done with the Community Empowerment Act where there's a specific convention on human rights which is referred to in the bill as a starting point for those discussions. And then Sarah, to get to your point on whether or not the policy memorandum does move along in terms of helping the Scottish Government realise it's the progressive realisation of rights to housing and rights to housing, rights to food and the other rights which are in the international convention of economic and social and cultural rights, it's definitely a step in the right direction. Again, this is all about the need to balance these various different groups of rights, balance the rights of the individual with the rights of the public interests, but it's very good to see language around these things which would help towards the progressive realisation of these economic, social and cultural rights. Okay, thank you. Munga Bovee. The fact that it has viewed this really from the point of view of the European Convention, along with the European Union law, are the only instruments which constrain the competence of the Parliament. In legal terms we would regard the implementing of other conventions as a matter of policy which we wouldn't intervene upon. Our concern, therefore, is legislative competence and the nature of European Convention on Human Rights is to protect the individual against interference with his rights by the State and we have identified interference with his right to possession, with his home, with his correspondence potentially, with his private life including his reputation, his right to fair hearing of determination of civil rights and obligations and that has been the focus of our written evidence to you. As regards the policy memorandum, I think my only observation is that on occasion the policy memorandum is not reflected in the act and we have commented that the definition in the policy memorandum of sustainable development between which you'll find about paragraph 143 of your policy memorandum is not reflected into the act which we consider to be a problem into the bill. Sorry, not reflected into the bill and similarly we comment that paragraph 36 of our evidence that the policy memorandum referred to the power of sale as the last resort, only available where there had been a persistent failure to comply with the landlord's obligations and we comment that that is not reflected in clause 38B which is being inserted to another act by the bill. So that would be our concern in relation to the policy memorandum. Can I just ask you one point because you cite ECHR and article 8 describes matters such as state intervention the public authority will exercise its right except such as in accordance with the law as necessary in a democratic society in the interests of national security public safety or the economic wellbeing of the country. The economic wellbeing of the country presumably must loom large in terms of the way that this bill is framed. When a state intervenes with, interferes in article 8 rights it must do so with one of the objectives of the enumerated lists of which you've just read 3 and it is an absolute requirement that you identify essentially that one can at least identify but certainly the economic development of the country can be an article a ground for article 8 interference yes. That's very helpful for a start I think we'll try and move into some of the detail just now. Kirstine Shield did you point to Zeroboliac's comment about community engagement from the policy memo and is it in the bill? As far as I can see the community engagement the alternative approaches set out in the policy memo from 187 and so forth don't transfer into binding obligations in the bill as far as I can tell and there's not an obligation to consult communities nor is there an obligation to provide the additional resources support mediation between the parties in relation to the right to buy so perhaps that's where alternative avenues could be strengthened. All things for us to consider as we come forward to question the ministers so moving into some more detail on this direction might Russell to lead off. I want to press the issue that Megan used the word progressive and I want to just push this issue a little in terms of this piece of legislation many of us regard this piece of legislation as a good piece of legislation some of us don't and many of us however want to see it go a little further but reading the evidence that you've collectively presented today there's a real spectrum of evidence in how that might happen what I want to focus on is how you could make this bill more robust in terms of legislative challenge so that the bill can achieve the objectives that it has but also move on from there to be improved for example there are things in the land reform group proposals which are not in this bill and many people believe that they should come back into this bill I'm very struck by the word progressive because if you look at with a great respect if you look at Brody's opinion I suspect that Brody's had been asked to give an opinion on the 1886 Crafting Reform Act you know fortunately we didn't have ECHR at that stage it would have been quite negative about it because the Crafting Reform Act produced security of tenure it produced fixed rents and to keep a house on land so these were things that were quite radical in the 19th century we want to see some things that are radical in the 21st century how do we achieve that and how do we make sure that this bill can deliver it I was particularly impressed by the global witness evidence but I want to find a way of taking the voluntary guidelines and making them forceful accepting that we can't treat them the same way as a convention how can we underpin the intentions of the parliament I think that this bill will show the intention of the parliament so it can move forward Dave too wants to come in afterwards but yes, who's going to start off then Megan The simple answer to this is to follow the recommendations in our submission but I think as a sort of underlying principle and again this echoes what Cerson just said there's a lot of very progressive language in the policy memorandum which is not being carried forward into the face of the bill so one of the fundamental questions is the extent to which any and especially when given that the bill relies so much on the development of further regulations how can the committee and how can the government ensure that the intention as described in the policy memorandum is not only transferred into the bill as passed but also then into the development of this regulation as we go through the various different stages and one way to do that is something at the very top of the face of the bill which not only directly refers to human rights and this broader human rights obligation which relates to land issues rather than just the ECHR obligations and the second thing is to have language in there which explicitly recognises that the securing of land tenure and land rights is a fundamental prerequisite before you can realise other human rights obligations so in order for the government to be able to realise all the other human rights obligations such as the right to food, right to adequate housing you have to secure tenure rights and that's a really really important fundamental statement I don't want to go into too much detail into the actual specific recommendations but I think having something up there which would guide the development of the rights and responsibilities statement around a human rights approach would enable the overall bill to have a progressive nature which would achieve the subjective I think I think in terms of the sort of crofting reforms we've had previously it's maybe important to note that ECHR rights are not one way they're not only enjoyed by the owner of land tenants will also have ECHR rights and there are there have been cases under the ECHR where a state was found to be in breach of its obligations because for example it didn't provide for tenure for people who had lived and worked on particular piece of land for many many years so it's not all it's not all one way and certainly if there were infringements of tenants existing tenure rights taking away existing tenure rights then those would also engage ECHR rights I think it's just that this legislation does place more burden we can call it that on the landlord and so any comment on ECHR issues will tend to focus on the landlord's interests in terms of being robust in respect of legislative challenge I think the the focus should be on ECHR rather than other instruments because it is ECHR that is domestically enforceable and on that basis I think the questions for the committee to ask and for the Government to consider are is there sufficient legal certainty do those whose property rights will be infringed are they going to be able to know exactly what they can and can't do what they should do in order to for example avoid having their property compulsorily purchased under part 5 of the bill so just making sure that terms that might be controversial are found where possible that would certainly make the bill more robust and also probably the key point might be considering in any areas where property rights might be infringed whether a less restrictive approach might be available that would deliver the same policy goal but interfere less with property rights so for example in the right to buy if a lesser remedy such as imposing a compulsory lease on a landowner might achieve the policy goal without depriving the owner of their interests in their entirety then that might be the route that should be gone down and have more of a menu of potential options rather than just a limited number of options very helpful I suggest that building on those comments both Charles and Megan's comments fit together quite well in that in the pursuit of greater legal certainty a preamble which contained a mission statement for the bill would clarify this legitimate aim issue which is so problematic that's problematic because if parties wanted to be problematic it may become problematic because the bill is desperate and it has it covers such diverse areas so I understand from one of the submissions that they understand the legitimate aim of part 10 to be the legitimate aim of the bill is to encourage productive agriculture that's quite different from my understanding of the aim of the bill and also from the aim of the bill which is set out in the draft land rights and responsibility statement so I think a clearer aim which relates to this wider the wider goals of social justice and fairness should be set out at the start and it could be like in the community empowerment bill which referred to the international covenant on economic social and cultural rights that would be entirely appropriate in my opinion Eleanor Deeming I wanted to really build on those comments and also say that this is also against the backdrop of the recently adopted UN sustainable development goals which were agreed at the end of September of this year and which Scotland has committed to so the SDGs reiterate the significance of land for the overall development agenda in particular for example to end hunger to achieve food security improve nutrition and to promote sustainable agriculture also to achieve gender equality and empowerment and to protect, restore and promote sustainable use of ecosystems, forests and reverse biodiversity laws so that could also be another way of building in and framing the backdrop that the land reform bill sets in We've got three people who want to come in on this at the moment, first of all Dave Thompson then Sarah Boyack, then Graham Day Thank you very much convener, good morning to the panel, it's just to follow up on this legitimate aim issue which I think is fundamental because challenges will be based on what that aim actually is is it would it be desirable that the government made clear very early on now that one of its legitimate or part of the legitimate aim was to actually build in to the legislation and the requirements the international covenant on economic, social and cultural rights and so on so if the government spelled that out I think you mentioned the mission statement very clearly that part of the purpose of what they want to do with land reform is actually to give equal status to that international covenant in relation to ECHR and so on if they made that very very clear upfront now that that would help us in terms of any future challenges that come before us, is that correct that would certainly fit with my understanding if you're looking at article 8 which we've quoted at paragraph 11 of our paper the justifications for interference with article 8 rights are exhaustively set out in paragraph 2 so you need however you describe it in legal analysis it needs to come into one of these justifications now as the convener has pointed out the economic well-being of the country is one of these the protection of health or morals, the protection of the rights and freedoms of others is another so if you can bring yourself you must bring yourself if you're interfering with article 8 rights within these listed grounds now it may be that coming within an international covenant can be brought within those headings but they must be brought within those headings in respect to the covenant I think if the intention was to give it equal status from a legal perspective that wouldn't be possible because in order to have equal status to the ECHR it would have to be incorporated into the Scotland act as something that governs the legislative competence of the Scottish Parliament I think Mungo described those types of instruments quite well when he said that they belong more in the policy sphere than the legal sphere certainly as much clarity as the Scottish Government can provide on what their policy aims are the better, the more they can give the better and there's absolutely nothing to prevent the Scottish Government from referring to these sorts of international obligations as explanations for its policy and as helping to guide and shape its policy and to help to interpret its policy but I think it's best to think about them in that policy box rather than in the legal box if you're thinking about the two separately so Megan McInnes I mean just quickly we would think this is an excellent idea it also builds on a similar commitment that was made in the Community Empowerment Act where this International Convention on Social and Cultural Rights is to be considered in decision making around the implementation of the act which I think is a sort of midway between possible barriers in terms of incorporating it into domestic law and it being stronger than a policy statement it's something which has to be considered and I also think that it shouldn't be too difficult to make sure that it isn't also in compliance with Article 8 of the European Convention given that it's the International Convention on Economic, Social and Cultural Rights it's very much in line with the economic wellbeing of the country Okay Sarah Boyack Thank you very much computer I think this is really useful just listening to all debating out the terms and I want to follow up a phrase used by Charles Livingston earlier on you mentioned the phrase terms that might be controversial I was wondering if you could expand on that and see what terms you think was that in the policy memorandum or was that in the actual bill Could you remind me of the context I used that in? You were talking about the greater burden on landlords because we were changing the balance of legislation and how it would operate and then you used the phrase about the terms that might be controversial and I'm just wondering what you meant by that I think I would have just meant provisions that would potentially interfere with property rights or articulate rights or article 6 rights and I use the term interfere just to mean that those rights are engaged not that they're necessarily breached so any and I think in the Scottish Government letter of the 10th of September they identified in part 10 of the bill the provisions that they thought were likely to engage ECHR rights so I think I would have just used that term to mean provisions that engage ECHR rights Okay, thank you. Graham Day I want to pick up on another phrase that you used when you talked about legal certainty I just wonder if the context in which you were using that phrase what you really meant was foreseeability because legal certainty whilst perhaps desirable was very difficult to achieve in many situations whereas one might accept it for seeability or reasonable for seeability it was a perfectly acceptable aspiration Yeah, I think I think you could use foreseeability almost as a synonym for legal certainty the point is that people should be able to know what their obligations are and what they need to do to comply with them and on the reverse of that if they are doing something that is contrary to their legal obligations then they should be able to foresee what the consequences of that are Thanks very much We are looking at the structure of this Yes, I addressed this paragraph 17 using a case called Calder provisions of domestic law must be precise and foreseeable in effect there must be a measure of legal protection against arbitrary interference of European Convention rights the scope of any discretion must be adequately defined measures affecting fundamental rights must be accompanied by appropriate procedural safeguards now those are all requirements of legality which is at the heart of the European Convention and so if you don't comply with all those requirements then there's a danger of interference by the state being deemed to be arbitrary because it's not constrained by law but gives the state the power without constraint and so this is absolutely at the heart of the convention rights of the individual Okay, that's very helpful Thanks very much Looking at the structure of the bill Alec Farrakas Yes, moving on to the comparatively mundane issue of the structure of the bill itself I have raised on a number of issues and certainly a number of witnesses have raised as well the balance or imbalance between primary and secondary legislation in the bill as it's been laid before us and I think there are some 43 items left in secondary legislation and although I'm told that that is very similar to the last time we debated and looked at land reform my concern is over some of the substance of what is being if you like deferred to another parliament essentially because some of these substances are quite major and I find it difficult or I find it increases the difficulty of my role in trying to scrutinise the bill that that is the case but my question is really whether you think an appropriate balance has been struck between primary and secondary legislation and if you think it hasn't whether you believe that has any ECHR implications given that the bill leaves a really significant number of matters to be set out in later regulations and therefore in the power of future ministers It has it does concern the faculty and indeed we have adversely commented on this in relation to I think sections 35 and 36 which are essentially devoid of content and leave it entirely to secondary legislation albeit by the affirmative resolution rather than negative resolution procedure Mike Russell asked how he could make your legislation robust well you can make it robust by making sure by not making late changes to legislation or consigning to secondary legislation rules which then do not have the full scrutiny of that the parliament gives to primary legislation so if that is happening that is putting your robustness very much in danger and in so far secondary legislation does not get the same scrutiny as primary legislation and you will know that better than I but in so far as that happens then there is a danger to the robustness of the legislation and therefore a danger to its convention compatibility because problems may be overlooked and the quality of the legislation may be poorer I just noticed one or two other members of the panel Charles first of all I think certainly we in section 3 of our written submission we identified a number of areas where we thought secondary legislation powers could better appear in the primary legislation themselves and I very much echo what Mungo said maybe just add that from an EHR perspective the Scottish Government is as obliged to comply with the EHR as the Scottish Parliament is and when you are looking at secondary legislation you are looking at the same questions is there sufficient certainty over what it says is it in the public interest, is it proportionate etc where it becomes particularly relevant though is in the degree of discretion that the courts will give to primary legislation as opposed to secondary legislation essentially the more democratic the decision making body the greater degree of deference the courts will tend to extend to it and so they will tend to give more deference to acts of a legislature than to decisions of a Government and so even though the questions are the same and this does very much connect with Michael Russell's question even though the issues are the same the court may be more willing to take an adverse view of something that the Government does than it is of something that the Parliament does and who else wants to come in nobody at the moment I appreciate the point as I would agree with both the points that have been made I did note that the Government's response had said that they had reduced the delegated powers quite considerably and the point is about the substance of the delegated powers and the more that can be done now to limit and or rather describe in detail those powers the better Sir Graven and Sarah I want to pick up on that point thank you If sufficient clarity on where the secondary legislation was going to take the bill was available the passing of that primary legislation would that address the concerns that would be because we would be passing the bill with a decent understanding where the secondary legislation was going to go especially if we were to be dealing with the secondary legislation under the affirmative procedure or even the super affirmative procedure would that address the concerns that you have? But it would not resolve them because the devil is in the detail of the terms in which you passed the legislation and not your intentions in doing so are secondary at best But many pieces of legislation would require secondary legislation etc behind them Would that not suggest that every piece of legislation might have an ECHR problem? The more you have by secondary legislation the more you have a problem The point that I'm making under reference to sections 35 and 36 of your bill related to information is that there's really nothing there it's just a skeleton by which the secondary legislation is guided it is taken it is not yet Henry VIII clause where the whole discretion is given to the executive but it is reminiscent of that concept so it is not the worst that you could do but it is not good Megan McInnes Just a quick comment I just want to say we would agree that there are certain elements that's in the policy memorandum which there should be greater clarity on the face of the bill it's not just about ECHR compliance though it's also about making sure that the intention as described in the policy memorandum is actually carried through to the bill I just want to give two clear examples of this in section 35 and 36 around improving information about who owns land at the moment this detail said that the person in control or the controlling interest of the land this terminology is used in the bill without defining what that means and it's very important that we have a definition on the face of the bill that the controlling interest means something which is equivalent to what's used in other jurisdictions the beneficial ownership of the land rather than controlling interest being interpreted in the company law context where it can be just the majority shareholder which wouldn't help in any way in terms of getting to the natural person who owns the land rather than just a structure of shell companies the second example is in part 4 around whether or not the guide on engagement with communities is a duty to engage or is just a guide that can be ignored if you feel like not engaging because in the policy memorandum there are a number of examples of sanctions that could be brought into play whether the action isn't undertaken or the results of the engagement are ignored by the land owner and I think it's very important that the clarity is given on the face of the bill about whether or not this is a duty to engage and what sanctions may be brought into force in order for both the land owner to know what the foreseeability which would make the EHR compliant as well as making sure that the communities know what they should expect from this guide of engagement Mike Russell I signed up specifically with reference to Charles as well if the bill did not do that that was a point that I questioned the civil servants on the very first session if the bill did not do that presumably then a challenge to the bill would be more likely to succeed and perhaps I would like to hear that from anybody else more likely to succeed because the actual detail of what the Parliament wished to see happen was entirely missing although there was a generality of consultation within communities there was nothing that said how it should happen and there was nothing that said what would happen if it didn't happen would that be a fair interpretation? The foreseeability of how this particular regulation is going to be implemented is no clarity on that and therefore a challenge to that would be more likely to succeed I don't know whether Kerson or Charles or Mungol wants to say something about that It's difficult to predict in the abstract obviously it would be more likely to have concerns there's not necessarily a challenge to the legislation itself but a challenge to a decision made under the legislation and it's that point about greater difference to primary legislation rather than secondary legislation I'm not asking for a free opinion on a specific case I'm simply trying to make the point that let us assume the basis of this sections 4 is largely targeted at charitable organisations we believe, even that isn't terribly clear that charitable organisations did not engage and cross compliance was used as a means to enforce engagement which is something the official said would happen and the policy memorandum anticipates may happen if that were not on the face of the bill presumably the challenge to that could be more likely to succeed I'm trying to be as cautious as you might be Is that true? I think that's fair Bearing in mind that in particular in relation to the property right under the EHR it is a special right it is given an especially wide margin of appreciation so on some readings on some key authorities on the EHR all that needs to be done to satisfy the test is appropriate safeguards against arbitrary decision making and a scheme a scheme for compensation has been established and the aim can be wide under the margin of appreciation The aim can be made the means by which the aim is achieved though if you take the point that Mungo has made and I think it's quite a crucial point the means by which the aim could be achieved need to be expressed as specifically as is possible by a parliament is this where we're going to be more helpful if the aims were expressed specifically by the parliament? It would be and not just for the sake of the EHR defence it would be great to have within the bill an obligation to consult communities to strengthen participation and engagement for the other very legitimate human rights concerns beyond this I entirely agree that and I hope the bill will include in that I'm sorry but I want to be absolutely clear about this if you have that aim and you specify that aim and what would happen if that is not done by an organisation you are more likely to have a bill that is robust than otherwise would that be a fair way of putting it? That is probably right just on the point that's made about the breadth of article 1 of protocol 1 it is correct it is a less powerful protection than article 8 which is why I've been focusing in my answers on article 8 where that applies it's not to disregard article 1 or protocol 1 but the for example it doesn't have enumerated a list of justifications it just has a general public interest general interest justification so you needn't identify one of the listed ones and that's one of a number of aspects of article 1 of protocol 1 which makes it less powerful than article 8 and some of the other articles but those are the two that are principally in play and as I say that's why I've been focusing on article 8 because that to my mind is where your legislation is most at risk Eleanor questions from Sarah and David wanted to really echo what Charles was saying that certainly with article 1 protocol 1 questions of compliance come down to a consideration of those individual facts so that's why it's quite difficult to generalise what might happen in certain circumstances because you could have something to circumstances that seem quite similar but then when you delve into the detail the balancing act and striking a fair balance you may get a different result depending on those specific circumstances so I think that's I just wanted to add that into the discussion. Sarah Boyer It has been very useful for us to hear you debating exactly what is and what isn't in the bill it feels to me given that ministers will likely read our transcript from today there are a variety of ways in which we can see detailed amendments on the face of the bill which would take what's in the policy memorandum and make it more explicit and I think you've highlighted section 35 and 36 we could have when the ministers come here a general statement about what they intend to put in the statutory instruments in terms of detailed of the policy issues and the third thing they could do is to just give us a general statement as to what they intend and I think it would be useful for us to reflect on that when we write our committee report because there's obviously a range of views and you can't get it perfect but we need a bit more clarity than what we've got taking across the views of all the witnesses I think that's something for us to reflect on That's fine, but just close here No, no, that's not good And Kirsten Giles, did you want to come back in on that? There is also not just including paragraph 35 and 36 at the start of the bill but direct reference to the International Covenant on Economic, Social and Cultural Rights that would be very good That's a really helpful clarification, thank you Okay, Dave Thompson Thank you convener just to follow on from this I'm absolutely clear and I think I'm getting there so it's not only important that there's a very robust legitimate aim at the start of the whole thing but also that the aims are also spelled out as you get into the guts of the bill and so on so that there's clarity so that there's maybe almost secondary legitimate aims in relation to certain sections or is that not right? Briefly, my point was that different aims for different parts of the bill was quite problematic so I wouldn't recommend that avenue I would have the central aim and then an explanation of how that part serves the aim but rather than separate aims The issue that you're addressing really is what we call proportionality if you want to open a nut you can use a nutcracker or you can use a sledgehammer now if you can use a nutcracker then it is disproportionate to use a sledgehammer and you will probably destroy the nut and defeat the purpose now proportionality means then that you've identified the aim in respect of which you're interfering with a right of an individual and it's each right you need to have an aim for so if you're compulsorily purchasing his house you need that's the interference you need to identify which aim is being pursued in doing that and then you need to identify whether in doing that that's rationally the action you're taking in buying the house is rationally linked to the aim that you've set out and also no more than is necessary to accomplish it so if you have a landlord who is in breach of his obligations in which you can enforce those obligations that he's in breach of to compulsorily buy it or would it be possible to enforce those obligations by for example allowing the tenant to withhold his rent and to use that money to repair the breaches that the landlord is guilty on and in those circumstances once you've done that then the question is is your interference striking a fair balance between the rights of the individual and the interests of the community so that is the sort of exercise that needs to be done in relation to each interference with the individual so while it's perfectly legitimate to set out that you are making this legislation in compliance with instrument or another policy objective that you want you do need to address each interference because if it's my house that you're buying or my farm that you're buying I'm not much interested in defending that my position in what your aims are for the rest of the bill I think I may differ on whether you want to have aims for your different parts of your legislation I think it's certainly fine and probably advisable to set out what your overarching aims are but when you are getting into different parts of the bill that have different policy aims or do very different things I think it is quite important to be clear on what aim is being pursued by each part so one example in part 10 the assignation and succession provisions have often been discussed as if they pursue the same policy and I've seen references to the tenant being able to retire with dignity as applying both to assignation and succession but that can only be relevant to assignation because succession logically means that the tenant has died and so they're not retiring so I think just having that clarity on aims where there are different things being pursued is important I think we'll be coming to succession and assignation later on Claudia Beamish Good morning to the witnesses Could I just seek a point of clarification from you Munga Was I right in thinking that you said people's houses buying people's houses Could I just understand where you're coming from on that was my understanding that this is about the land Not people's homes anyway if we're going to be accurate about that The concern I have on homes is that homes has been given an extended meaning by the European Court of Human Rights which extends it to the company to company offices of your business it includes the registered office of a company run by a private individual as well as a juristic persons registered office branches and other business premises so there is the possibility notwithstanding that you've excluded homes on occasion from what's happening here that the issue of home may occur in criticism of the legislation Then possibly the intention needs to be clarified that it's not about taking over people's homes but about the right to land and that that is a different That is a difficulty because of the width of the definition because it doesn't seem inconceivable that a farm office could actually be somebody's home in terms of article 8 I've addressed this at paragraphs 12 and 13 of the faculty's paper and it is it is an issue it doesn't mean perhaps at worst the example I chose answering Dave Thompson wasn't a good example but I chose it arising out of the kind of concerns that we have expressed Without having that section to hand without having that to hand I do understand that land owners homes are an exception already within the bill Could I just ask a further question in relation to the least intrusive measure and you gave the example I don't know if anyone else wanted to comment on this Would it be possible I think to have a compulsory lease rather than the purchase I apologise The point I want to make is I think you gave the example that you could go back and get the or could you, you didn't say you could could you go back and get the land owner to repair the land I've seen an enormous amount of evidence of land not being land use not being sustainable and to get someone who over a certain period has not maintained the land sustainably would seem to me to be quite a difficult way forward and so you're talking about the least interference but surely there's a balance in that with the policy as a right which we're trying to define of the community to have the possibility of the useful sustainable development and there's a balance there that comes into play as well If you are satisfied that alternatives will not serve the aim that you've identified then that does point to the need for the interference that you're proposing so really what I was trying to do was to point out the exercise that you need to go through that if you believe that a landlord who is in breach of his obligations that those obligations could be implemented by allowing the tenant to withhold his rent which is the example that I gave and put that saved rent to preparing the breaches of the landlord if you believed that then it would be arguably disproportionate to take the landlord's farm from him because the usefulness of the farm could be restored by a less intrusive measure if however your evidence and belief is that it can't be done by that means that lesser measure falls out of consideration whether lesser measures require to be considered and then once they are dismissed then your way is cleared to take a measure that interferes with the article 8 or article 1 of protocol 1 rights of the land owner I appreciate this by way of example of taking us through the steps and that's helpful but I would think that possibly the withholding of rent in such circumstances might be a pretty complex legal issue as well I think we've got to be careful about getting into the detail of hypothetical cases at the moment Charles first of all I think that actually illustrates I mentioned earlier potentially wanting to have a menu of options rather than only one option to which you can have resort because there certainly will be cases I would expect where the sort of ultimate fall back option of changing the ownership of land would be appropriate because nothing less would work wherever you'd get into difficulty is in cases that don't reach as far as that where some lesser interference might achieve the policy outcome that you want to achieve and in that sort of circumstance it wouldn't be from an EHR perspective it wouldn't be a defence but the bill only gives me one option because if a lesser option would achieve what you want to achieve then the courts would say that that even though you only have one tool available to you using that tool would nevertheless be disproportionate Okay, Christine Shields So just to explore this issue a bit further I think this is where this sliding aim is very significant so according to the farm owners interference and the sledgehammer and the nut anecdote or analogy that comes into play because to have a justified interference the interference must be no more than is necessary to achieve the aim so if the aim is to encourage productive agriculture then there are alternative ways if the aim is this higher aim which is set out in the memo and in the land rights statement of diversifying ownership of serving social justice then the question are there easier ways to achieve those may not be so mean are there easier ways to achieve those may be not productive agriculture yes so that provides an example of what we're kind of disputing when we're disputing the aim and in response to Charles this point about it being desirable to have different aims or different parts of the bill you will not encounter too many difficulties if the aim is sufficiently wide at the outset with ECHR the problem of creating more specific aims is it gives more opportunity to challenge the measures fine okay that's given us lots of food for thought oh Mike Russell wants to have further the issue of aims because sorry there's just I pointed out in the previous evidence session I think the last section of the bill the tenancy bill has two conflicting aims one of which is to produce a bit more efficient agriculture but the second one which has been referred to on several occasions is to continue to have a confidence amongst the land letting sector so that they will continue to let land presumably and I'm sort of just putting this on the record because I think it's quite important but I'll be just taking your view in it on conflicting aims and a piece of legislation it becomes even harder for that legislation to be unchallenged or unchallengable or successfully easier for it to be successfully challenged lack of clarity as to your aims then that is so it's conceivable that different parts of a bill might have have different aims and therefore you might so we are looking for clarity in aims I certainly think you're looking for clarity in aims because and Christine's example of how one aim might justify a certain interference but another might not is a very useful one and I think is quite persuasive because you're balancing two sets of rights the rights of in those two conflicting aims you're trying to increase the rights of tenants but you're also trying to protect the rights of landlords and it may be impossible to do both of those things May I suggest one possible solution to this which is that the clearly needs to be an overarching aim which the entire bill is intending to achieve and that aim needs to very clearly articulate with towards a vision of sustainable development and equitable and social justice in that overall aim you then balance the rights of the individuals with the public interest and that should be what the overarching aim seeks to address if further sections of the bill then need clarification on that particular area about what the aim is of for example section 35 and 36 that sub-aim still needs to be still needs to be written in clear compliance to contradict the overarching aim and it needs to be complementary rather than contradictory so the hierarchy of aims needs to make sure that they're complementary in order to avoid challenges okay that's useful thank you so the statement at the start of the bill is a very important place to set out these broad aims as we keep coming back to okay Jim Hume on section 35 issues thank you very much convener yes it's a text on slightly about article 8 and Megan McInnes is also just touched slightly about who owns the land and of course there is some views at disclosure of information about persons who own land could engage the article 8 rights of such person regarding their right to private and family life their homes and correspondence and courts have already accepted that article 8 protects an individual's business environment and of course part 3 of the bill confers powers on the Scottish ministers to make regulations enabling persons who are affected by land to access info about persons in control of that land so it'd be interested in the panel's views on whether they think there may be or any ECHR compatibility issues arising from that power of the bill regarding disclosure of information about individuals and it'd also be interesting if they thought that the bill isn't competent enough at the moment it may need amended to address that Charles I think it's the position is probably that we can't really say in the absence of the regulations because it's the regulations that will put forward the substance so we're almost returning to that point about in the absence of the substance you aren't able to scrutinise it to the extent you would want certainly if the regulations were drafted in an extremely broad way so that all information had to be published proactively regardless of whether anybody wanted it or whether they had a reason for a justifiable reason for wanting it then that might be too broad and you might be into article 8 issues by contrast a very narrowly tailored requirement that requires somebody to disclose information only in circumstances where to do so will pursue one of the aims set out in article 8 you would expect that to be fine but in the absence of the substance it's quite hard to say what we would be looking at which leads on to the second part of my question in the absence of substance is the bill amendable to put that substance in yes I would have thought so if the government were to bring forward amendments at stage 2 then I don't see any reason why it couldn't be put on the face of the primary legislation rather than left for secondary legislation there may of course be technical issues about establishing the mechanism by which information is transferred that are better left for secondary legislation but in terms of the substance it's generally preferable to see that in primary legislation okay that's good thank you yes to answer this question so first in terms of conflict conflicting with article 8 of ETHR I just want to draw the committee's attention to two parallel processes which are currently underway at the UK level in which registries have been set up disclosing the information around company ownership which have had to be gone through also this process of making sure that they are compatible with article 8 and protection of private information the first is the persons of significant control register which is the UK wide register of beneficial ownership of companies which is the part of the transposition of the European wide fourth anti-money laundering directive and it's part of the UK small business enterprise and employment act so that register itself will include information about the beneficial ownership the persons of significant control the named natural person which is at the end of this whatever complicated structure of shell companies you're looking at it doesn't cover trusts but it does at least give the name of those details so that's I think one example where we've had a clear agreement that disclosing that information is compatible with article 8 which actually gives more detail and that is the transposition of the transparency directive of the UK into UK sorry the transparency directive of the EU into UK law which is a the reporting requirements by companies on extractive industry companies so oil gas and mining companies on the revenue payments they make to the government so there is a registry that has to be set up in order to transpose this EU directive into the UK and in that registry which has been agreed and finalised as far as we understand the UK companies involved in the oil gas and mining industry have to disclose the name of the directors of the company, the dates of birth and the service addresses of the owners of the company and their means of exerting control over the company so this is a has been agreed at the UK level and considerations of article 8 have been addressed within that agreement so I just want to demonstrate to the committee that there is significant space within compliance, within what you can ask companies and individuals to disclose which remains compliant with article 8 in terms of whether or not section 35 is adequate at the moment in the bill as we've said in our in the various submissions we've made to the committee on this bill we don't think it's yet strong enough there is language saying that the controlling interest or the persons in control of the land will be disclosed through 35 and 36 as that's currently defined that won't necessarily mean that the natural persons controlling the owner of the controlling the entity owning the land will be disclosed all you may end up with is the name of a shell company which is owned by another shell company which is ending up in the British Virgin Islands or somewhere so we would very much like to see in part 35 and 36 a more clear definition of what the controlling interest is and a definition which is in line with the definition used at the European level on money laundering of persons of significant control and in the various submissions we've given to the committee we include that definition but I think it's very important that more clarity is given in part 35 and 36 to make sure that we end up with the disclosure of the natural persons rather than the legal persons because that's ultimately what's trying to be achieved by this section on improving information on who owns land illustrates the weakness of the position in which the legislative process now finds itself because if there is amendment to this bill to be more precise or if it goes forward as it is and there's secondary legislation I don't understand that this committee will be reinstating or repeating the evidence gathering procedures or this this session for example focused on convention and therefore there is a danger which is inherent in where we already are unless I'm wrong in that. Possibly slightly wrong because we could take evidence at stage 2 indeed we could then if that was not the case go on to evidence at the affirmative or super affirmative stage and you know there'd be a suspect a strong recommendation from this committee that these things are available to us so we have mechanisms within this bill right now I don't doubt that the legislative scrutiny that I'm referring to is dependent upon you doing that and that's the weakness as it as it were it may be that now I've made the point that you may take steps to do it but the structural weakness in the position is still present because it requires this committee to take those steps which I'm sure are within your power. OK from those points I have to ask to come back Megan just you mentioned just before you answer that point you of course said that private trusts are excluded from this information now did the EU start off with the aim of identifying beneficial owners of private trusts where when it started this process and what happened in Britain that this was not taken forward so the EU money laundering the fourth money laundering directive does disclose the beneficial ownership owner of trusts too but that information is not public so if all of the member states in the European Union implement the money laundering directive at the EU level it would include non-publicly accessible registers of trusts beneficial owners of trusts and companies so it's there but the problem is you only enforcement agencies working on money laundering and terrorism have access to that database what's happened at the UK level is that the UK government decided to go further and they are transposing that directive at the UK level but the information that will be made public is only the beneficial owner for the companies not for the trusts so we are not, we haven't, global witness were working on the transposition both the the amendments to the directive at the European level as well as how it's being transposed at the UK level we are not privy to why the UK government decided not to include trusts in that public registry it was something that global witness and a number of other organisations were asking for because this issue of lack of ownership, lack of knowledge of who is behind the trusts is of critical importance across the UK it's something which we understand David Cameron's office wasn't considering, wasn't willing to consider at the time Scottish affairs committee said in its final report on the subject in March that it would take a fundamental change in UK law to reveal who the beneficial owners of private trusts were saying that that information will be available to enforcement agencies so that information must be available somehow it is available but it's not made public but just on the trust issue though I understand that the Scottish Law Commission is looking at trusts in Scotland and this is a devolved matter so there is space there for the Scottish Government Government to consider the disclosure of the beneficial ownership of trusts through that parallel process which is happening separately to this bill and do you think that there's a significant amount of Scottish land that is actually tied up in private trusts who we don't know the beneficial owners of from global witnesses understanding and this is based mainly on the research done by Andy Wightman it's not actually the issue of trusts is of less significance than the use of company as corporate vehicles to hide the ownership of the land so it's the companies which are the main owners of the moment and that's why we would agree with the focus on 35 and 36 at the moment on the owners of the companies rather than trusts okay thank you for that any other points there no okay Angus McDonald next okay thanks I'd like to continue on slightly the same theme and explore the issue of non EU entities a bit further Angus has touched on this earlier when she mentioned shell companies and beneficial ownership there's been quite a bit of debate out with the parliament not least on social media on non EU entities owning land in Scotland now we know that the land reform review group recommended that the bill should include provision limiting the legal entities that can register title to land to those registered within the EU would such a provision raise any particular difficulties in respect of compatibility with ECHR not directly and not to my knowledge I wouldn't have thought that your difficulty might be with EU law at some stage but we don't know till we see the provision I think when we were asked about this in relation to the consultation our view was that it wasn't inconceivable that third country individuals and entities would simply set up companies in EU with which to own land or do whatever and that therefore it wasn't perfectly clear that it would be effective in seeking disclosure or transparency that you want but we don't know nor would it be particularly rational necessarily or justifiable to discriminate on the basis of nationality in that respect another way to discriminate would be the size rather than on the nationality of the entity that would be far more rational to achieve the aim Andy Wightman said it doesn't matter where somebody is the aim of this was not about saying that somebody from America couldn't buy a house or land here but that the person who's in charge of making decisions about that is available within the EU jurisdiction that suggested that there should just be an obligation on land owners to have an address within the jurisdiction at which they could be served and so that you didn't need to do more than that that would mean that the obligation on them to check their mail as to whether somebody was suing them or bringing an application or whatever and something relatively simple might actually make a difference if you're concerned about people who are far away and uncontactable then you could better make them contactable by than that but that might address some of the sort of concerns that you're expressing Angus, what do you take that for? We've already heard evidence in our evidence sessions where entities with an address are not responding to letters so that would not solve the problem I think from my perspective we would very much like to see this on EU companies being reintroduced into the bill, it serves an important purpose not only in terms of helping improve the accountability of land owners to local communities which is the ultimate objective of finding out who owns the land but also in relation to other objectives for example tax transparency which is still of consideration for the Scottish Government even though that's a reserved issue so from our perspective we are happy with compatibility with ECHR provisions was described in the policy memorandum we're also happy with the way in which the land review reform group described it in the original recommendation the other issue of course is to think about the fact that this isn't just about making sure it's such a provision is compatible with ECHR but it's also a human rights issue so the fact that for local communities not being able to contact the person who's owning land and making decisions about land and natural resources which has an impact on communities and on tenants and on crofters that also is a human rights issue so in terms of helping the Scottish Government meet its broader human rights obligations a way separate from the convention this enabling transparency through this bar on having to be registered as a company is a very helpful step towards that having said that global witness also is concerned about the loopholes which were raised by the Government as the rationale for why they didn't suggest this and include this in the bill and so what we would suggest is that actually in order to close the potential loophole of such disclosure on a European company just taking you to another European company or a company that's registered in another secrecy jurisdiction again what you need to do the solution to that is going back to the question of not just having the company name but also the name of the beneficial owners the persons in significant control of that company and the problem with 35 and 36 as we understand it is that these are powers only of request that the keepers have they're not powers to require such information to be included in the bill and so the solution to this therefore is to actually look at separate parts of the Land Registration Act in Scotland look at the conditions of application and whether or not a two additional questions should be asked as a condition of application one is this bar on the fact that you have to have a European registered company and the second being that the ultimate beneficial owner is the significant persons in control of that company and both of those pieces of information are added to the conditions of application at the point of registering the title with the Land Register and that would resolve a number of these different loopholes that we're discussing okay that's good to know Charles yes just going back to the original question about whether any CHR issues can be engaged I can in theory at least see the possibility that article one and protocol one might be engaged if the ban was expressed in a way that meant that existing owners of property were going to be deprived of that it's obviously theoretical in the absence of any language in the bill but I can see that it might be engaged in that respect and then you would get into questions of having to have a legitimate aim at being in the public interest at being proportionate etc thank you moving on to the right to buy to further sustainable development, Graham Day is going to lead on this one I touched on some of this earlier I just want to explore whether terms such as sustainable development, significant benefit and significant harm require to be defined more clearly risking that if we don't there's the possibility of problems with regard to interference with the property rights of landowners I think we were probably at the forefront of the criticism for not defining sustainable development I think as sustainable development is the aim that is being pursued and is not a term that is an established legal term which has its own to which the court will have its own meaning then it is it might place the legislation at hazard in failing to identify what your aim is and putting it into the explanatory statement is not a satisfactory way of legislating because the court doesn't know what to make of the explanatory statement whether that is being endorsed by Parliament or not so certainly that term there are other terms that you mentioned that do not need necessarily further interpretation that of course is an opinion yes of course that's why I'm here I just want to say that he has an alternative viewpoint who's going to start? I note that in this briefing they state that there is an agreed definition I don't think it's strong enough and I think it's an opportunity there is an opportunity in the bill to clarify or to use an alternative phrase all sorts of things can qualify as sustainable development at the moment that don't necessarily serve social justice you already call it Lord Gill stated in the park case that everybody knows what sustainable development is exactly, it's a term of art that can be misinterpreted I think we're with Lord Gill on this, this is not the first time sustainable development has been used in Scottish legislation and it's relatively well defined in both public perception and also in terms of existing use in the law so we don't see it being needed to be further defined than it is at the moment Charles whether it's well understood I think it's a term that is well understood in certain circles in policy making circles and in those who are stakeholders in policy making I think from an ECHR perspective the question needs to be whether it's sufficiently well understood on the part of everybody who might be affected by the provision I'm conscious of the park case I'm not sure that I would be comfortable applying that to all definitions of sustainable development where it arose there was a challenge that suggested that there was no possibility of an independent adjudication of a Scottish Government decision about sustainable development so what the court decided was that it was it was a term that was capable of being defined and so a court was capable of dealing with it and a party to a dispute was capable of answering any claims that were made in respect of it I think the issue with it is not that it's incapable of being defined it's that it's capable of being defined in a number of different ways so ultimately if it came before a court a court would certainly say I'm able to define sustainable development as X but the difficulty for a landowner or somebody looking to buy land is that they may not be clear on what sustainable development is until they get to that stage at their core and being told what sustainable development is in the circumstances of the individual case so I think I think it would at worst it couldn't hurt to define sustainable development I think leaving it open leaves room for misunderstanding and for dispute in a way that a more defined term would not Alex Ferguson Very briefly Thank you, I just want to follow that up Would your comments equally apply to the terms significant harm, significant benefit which have also been questioned in terms of their definition No, I think sustainable development is, as Carson said, more of a term of art that is used in certain circles significant benefit significant harm are really just ordinary language and I think the courts and anybody affected by the bill would be capable of understanding or at least estimating what significant harm or significant benefit might be in any particular case so I agree with Mungo on that point It's useful, thank you Sarah Boyack It's just to ask you about you made the comment that you wouldn't expect certain people to have come across that term before but it is in common use in legislation in Scotland and quite a number of acts of parliament that have been supported and the most obvious one that impacts on property rights and on landowners rights is probably the land use planning act of 2006 where it requires a presumption in favour of development that contributes to sustainable development so are you aware of circumstances where landowners have objected to the use of that term in context of the planning act which is also about the development of land No, but I think how I would think of the planning acts in those circumstances is that they operate with references to sustainable development and they are really giving policy makers and decision makers a steer as to the things that they should be taking into consideration so that would fall into what I said earlier about in policy making circles I think it's a term that is probably fairly well understood but once you get outside of those circles into your ordinary landowner or your ordinary community whether it's a term where they would benefit from further definition in order to be clear and to have foreseeability about what it is they're required to do and the circumstances in which an application might be likely to succeed We might just have to disagree with that but that's been in place for nine years now and I'm not aware that there's a huge pressure from landowners about sustainable development and planning because it's an objective of the bill sorry, the act but when decisions are taken, as would be with this there's a framework that gives people the chance to make representations both from the community and the landowner's side as to whether the balance of sustainable development is actually being delivered in relation to the current use of the land or the future use of the land so I see there's a parallel here so maybe it's something we can reflect on, computer Kirsty? Sorry, perhaps another way to look at that would be sustainable development is not as being something that can be challenged by landowners but is that the best term we can use or is it a term which might raise the bar as to what the outcome should be rather than sustainable development which I would say is akin to corporate social responsibility in its usage and its misinterpretation is there a way to raise the bar on the sustainability on the sustainable development term? So what would you be your alternative phrase? But at a serious point, if you're suggesting it's not good enough, what is a better phrase? Well, if you use the significant harm and significant benefit framework and look at benefits which are non-economic so looking particularly at significant non-economic benefits or just within the sustainable development definition it requires an integrated approach to social, economic and environmental outcomes why not just use that an integrated approach to social, economic and environmental outcomes rather than sustainable development because that's how we see sustainable development and it's not been a problem before We did use the term economic harm during the community empowerment bill and now the act and since the environment is all-encompassing since we are fauna in the environment it actually is an encompassing kind of definition about economic harm and so on because it's got to have an environmental element in it but thanks for the hint to put that direction and once again you're leaving us with the joy of having to find some way to define this more detail raising the bar as you put it we won't take a five minute break just now I think you all probably need a little comfort break and we'll continue with the other five questions we have still to deal with so we'll stop now Down again please Thanks everybody we'll restart No, with a question from Claudia Beamish Right, thank you convener Just wait for everyone to be ready It's a follow on question within the same section that we're dealing with in relation to part five of the bill and myself and my colleague Sarah Boyack want to tease out some of the other issues so in relation to landowners I'd like to ask whether the panel considers that the tests to be satisfied by a part five community body wishing to exercise its right to buy gives appropriate weight to the rights of landlords whose property may be the subject of a part five application and as a follow on to that should there be a specific requirement on Scottish ministers to consider the likely effect of the transfer of land on the landowner and at all the time we're looking for as much clarity in the bill obviously in relation to these issues and perhaps this could go somewhat to the heart of the matter As I understand it the threshold is significantly high it requires that there's identification of significant harm and at the same time significant benefit so in that respect I think it's also considered to be a power of last resort the right to buy Thank you Are there any other comments from a panel on that? Megan I'm very much in agreement with Kirsten on this I think the other thing that would help strengthen the bill and the defence of the bill were there to be questions about this is that if you have in the overall arching aim of the bill recognition of other human rights obligations that the Scottish Government has for example on the social and cultural rights that can help provide a counterbalance to any efforts to say that what's in part 5 is not in compliance with ECHR so it's about recognising that part 5 is in thinking to achieve other human rights obligations which aren't necessarily in the ECHR but are still obligations the Government has and can help provide the correct balance between the rights of the individuals and the rights of the public interest in the communities Thank you General sir in particular about the specific requirement to take account of the effect on the landowner the Scottish Government will have that anyway in terms of its obligations under ECHR having a specific obligation in the bill wouldn't necessarily strengthen the position from an ECHR perspective but what it might do is assist the decision making process because the decision making process can be quite important in terms of making sure that you have taken into account all the relevant issues and you've discarded any irrelevant issues and that sort of thing so I would see that as more something that might be a procedural improvement without necessarily being a substantive improvement Thank you Alex Ferguson as a supplementary in that point The specific point when we were in the committee met in Sky it seems a long time ago now but I think it was only about a month ago and I raised I was talking or discussing matters with Peter Peacock of Community Land Scotland and I put it to him that where the community tests had been met and the landowner the likely affected landowner had made his case against the right to buy or stated his case or done the relevant appeal whatever the right terminology is 50 decision effectively the community rights would predominate and my question is whether any of you believe there might be ECHR implications in those circumstances for the individual whose property is therefore going to be affected Eleanor, who was going to comment on my question first before we moved on to that because I appreciate that I was really just going to echo what Christine was saying as well but I think that already there's quite a high hurdle to meet and also the discussion of there are other safeguards built in such as the right to make representations the landowner as I understand would be involved in the process all the way through and then there are fair compensation and also the rights of appeal so I think all of these things also clearly strengthen the requirement that a fair balance is struck and in Alex's case the question about the 50-50 situation and the community's rights being uppermost anyone want to comment on that that comes to be the sustainable developments are only met if not granting the consent to the transfer of land is likely to result in significant harm to the community it seems that that and the preceding provision I'm looking at section 47.2 of the act and the preceding section where the transfer needs to be the only practicable way of achieving the significant benefit to the relevant community so it wouldn't seem to me that there is a 50-50 presumption in favour of the application it seems that it is quite constrained in terms of the circumstances in which it can arise you're saying 50-50 scenario is not going to happen basically my reading of it is that quite a high test needs to be met on the merits looking at section 47.2 which I hope is where we are my understanding if that scenario happened and the community was to trump the landowners rights then it would come again under the whether or not this is justified interference with Article 1 of additional protocol 1 the rights property and then again what would need to be established was is this an arbitrary decision and is there an appropriate scheme for compensation established and if so the tests will be met Charles it may be worth noting as well that if you're in a position where the ministers as the primary decision maker are seeing things as 50-50 and that it could go either way the courts when dealing with ECHR issues will tend to offer a degree of discretion to decision makers in those sorts of circumstances so they wouldn't the court would not look at that and say I agree it's 50-50 but I think it should go in the other direction they would tend to say that it's 50-type situation that it's not their role to second guess the decision maker right so if that's clear then Sarah Boyack your next question I want to take the next step to discuss about the issue of proportionality and to ask the panel's views as to whether they think the measures in part 5 of the bill are proportionate to the state that aims of furthering sustainable development avoiding significant harm and delivering significant benefit to communities and whether you think as a panel, as individuals on the panel whether the right to buy goes further than is necessary to achieve those aims and I want to explore the issue of alternative approaches that would achieve those aims which are less intrusive in respect to their impact on landowners rights we kind of touched on some of this before but Tim let's try and be more specific if we can anyone for starters Charles I think we have covered this and I have mentioned the possibility of having some potentially less restrictive policies that you might be able to use to fulfil the same aim so where where you're in a situation where the only plausible remedy to the mischief you're trying to tackle is to change the ultimate owner of the land then in that circumstance it would be proportionate because no less restrictive alternative would do what you want to do however there are likely to be cases that don't get that far where you might be able to achieve the sustainable development that you want to achieve and the benefit to the community without necessarily having to deprive the owner of their rights so quite a specific way of thinking about it that we flagged in our submission is the point that you may in some circumstances actually have the community desiring to do sustainable development that will benefit the community the landowner may agree with the community that that should be done but it might actually be a tenant's interest that is preventing that from going forward and being structured at the moment a tenant's interest can be acquired by the community but only if they have already made an application to acquire the owner's interest so separating those two out and having a procedure by which a community might be able to take over the tenant's interest without depriving the owner of their rights or putting the owner through the process of a part 5 application would from the owner's perspective be a more proportionate way of achieving the desired outcome so that's quite a hopefully quite a concrete example of where a more proportionate approach might be possible if the legislation allowed for it if the legislation went through presumably that would be one of the tests the ministers would make if there was an alternative and better remedy that was suggested because it's not an automatic right to buy it's an automatic right to pursue the right to buy which is then decided on by ministers so for example if the community were keen to invest in renewable energy or community housing that would generate income to the community a lease that was controlled by a landowner might not give them that because they would need a certain period of time or they'd need certainty in terms of investment so what the bill does as we have it at the moment a series of choices as to how communities might pursue that and one of the things we've talked about is the very existence of the bill might bring some landowners to the table so I think your argument doesn't automatically rule out the bill it just flags the fact that there will be a menu of choices that both landowners and communities can now begin to pursue that's true but I would qualify it by saying that the possibility of doing something less restrictive of property rights might be sufficient to prevent the use of the right to buy to result in ministers not being able to approve an application in a way that's compliant with the landowners convention rights even though that less restrictive option is not actually available to them under the legislation hopefully that makes sense if a less restrictive option was available in the legislation then proportionality would say that the minister should take that option if it's not available in the legislation that doesn't mean that the ministers can then proceed to the most restrictive option because that's the only one available is there a distinction about what's in the legislation and what's available because there are a whole raft of things that are available that's not all going to be on the face of the bill well I think you're only likely to get into ECHR territory where there's an element of compulsion to what's being done so if things are being done there are certainly all sorts of things that can be done on a voluntary basis and ECHRs is not engaged there unless there's the state is being involved in a way that pressures parties to do something they would otherwise not do so what we're really thinking about from our perspective is whether something that the Scottish Government does under the legislation could be challenged so from that perspective I think the fact that things could be done on a voluntary basis doesn't necessarily assist in making things done on a compulsory basis proportionate hopefully that's not too unclear but ministers will have the capacity to test that when applications are made and they have the choice to approve or not approve an application yes so I guess the point is that those are the only two options that are available to them because the legislation doesn't give them any lesser option so it's either the right to buy option or nothing because there's nothing in between the legislation doesn't provide for anything in between are there any other views from other witnesses I think that I'm in danger of repeating myself but this conversation highlights that each specific set of facts each application will turn on its own facts so there may well be taking into account proportionality that whole test that we've been discussing will have to be gone through with each application so I think that's just quite important to remember that this can't be generalised in any way and each application will have to be looked at on its own merits from the start from our perspective we're relatively happy with part 5 as it currently stands and the analysis that we did between part 5 and the voluntary guidelines on the governance of Tenure and Land also showed that they're relatively in compliance with that and in many ways what's included in the broader community rights to buy as in the Land Reform Act as a whole go well beyond what's in the voluntary guidelines at the moment and we're also happy with the way that the impact assessment is considered in the policy memorandum with regard to for example ECHR compliance I think that there's a risk of getting confused here between the underlying objective of the community right to buy as it's being discussed throughout all of the regulations in Scotland which it refers to which is that it was the right to buy it was the objective of that was securing the ownership of the land for the communities and that's very different from securing long-term leases so I think we shouldn't be confused by considering long-term leases as an alternative route when if the objective of this is the right to buy that there's no alternative route to that unless you consider a separate procedural route to purchase the land whereas if we're thinking about leases that's lease rights and the community's rights land and the natural resources associated with it is a completely different policy objective and should be considered under a completely different route in terms of its alternatives Can I follow that up because thinking about what the alternatives would be for a community to be able to exercise a right to buy there are no other legal opportunities are there because we've got compulsory purchase legislation which can be exercisable by local authorities but that's not something that communities have the right to access Yes, our thoughts are that at the moment this is already quite complicated enough in terms of what's in the original land reform act what was introduced in terms of the amendments in the community empowerment act last year and then what's being considered now and what's needed here actually is simplification rather than greater diversification of legal routes to this one singular objective Thank you At section 47.2 the sustainable development conditions are only met if the transfer of land is likely to result in significant benefit to the relevant community to which the application relates and is the only practicable way of achieving that significant benefit That is as it were an enactment of the proportionality principle and is welcomed and I think is possibly one of the reasons that nobody is expressing convention concerns in relation to this provision I would read it as meaning that the significant benefit to the community is not the benefit of ownership but the benefits that come with ownership in other words of control accountability and such like and the issue for the ministers as I would understand it in addressing that issue this provision is whether there are other ways in which a community might benefit from might benefit in a way similar analogous to the way in which they will benefit from taking ownership so for example if it were suggested that another body buying it a local authority buying it in a compulsory purchase would have the same benefits that would be an alternative but something inherently because we are weighing the issue of whether the owner should be deprived of his property albeit not without compensation but he should be deprived of his property the question is what is the benefits that could be achieved by something less than that measure less than taking the property from him and that would be the issue that the ministers would require to address in making their decision I think on the point about ownership there is a risk of putting the cart before the horse and thinking about things only in terms of ownership if the mischief that you are targeting is that there is a block on a particular piece of land being used in a way that will further the achievement of sustainable development be in the public interest etc I think that the focus proportionality would say that the focus should be on coming up with some means that allows you to change that use and if you are going directly to changing ownership you should be shutting off the possibility of anything less than a change of ownership that is the difficulty that if you think about things only in terms of ownership your solutions will be about ownership the expression if all you have is a hammer everything looks like a nail that is the difficulty that you need to avoid Sarah I suppose that the issue I want to follow up on that point if you said the mischief that you are trying to address here if one of the issues that there is billions to address is to empower local communities then ownership actually is a way of empowering that local community that they do not have to rely on the say so of somebody else Is it the only way of empowering them is there a way of empowering them short of ownership that's the question that that provision requires the ministers to address in each case Charles's point reinforces the fact that convention rights are a case sensitive they are entirely focused on the factual circumstances of the individual and if the benefit from this proposed purchase is to use his example to free up a particular land from disuse into constructive use the issue that the ministers need to address is whether there's something less than that that can be achieved There is a point that you are talking about the policy memorandum paragraph 5 that says among other things to change patterns of ownership in Scotland to ensure a greater diversity of ownership greater diversity of investment and greater sustainable development these are fundamental to this so looking for lesser solutions are not actually meeting the aims of that part of the bill but might wrestle to I wonder to what degree does Occam's razor apply here, what about the easiest solution, the most practical solution for change it seems to me that looking for alternatives may be looking for things that admittedly are alternatives but they are harder to achieve an example from an earlier piece of evidence that you gave, a child of my might was the question of a tenant being able to take action against a landlord actually that's a very difficult thing for a tenant to do in the context of a rural community we had a visit some time ago in Islay where we saw that very dramatically so to what extent would that issue apply the ease of action or the practicality of action as well as the alternatives to action that you were about to make there Megan yes I mean I was actually going to return to this question I will answer your question in a minute I wanted to return to this question of ownership versus leases because at the moment the way in which not only paragraph 5 of the policy memorandum but also the framing of part 5 is framed under a right to buy provision and all the references within that are to right to buy provisions in existing acts in Scotland that doesn't mean that there's a very useful alternative route through looking at the use of land for sustainable development objectives through lease holes but that would require a completely different section of this bill or a new section to be included in this bill which isn't framed under the right to buy current instruments so because I just want to sort of say I mean the objective as far as we understand from this was that this was to be framed under the right to buy decisions and there is no there doesn't seem to be any alternative to the right to buy other than enabling communities to buy the land in terms of going back to sort of your question Mr Russell depends on really lies in who should bear the burden of these kind of procedures should it be the communities that bear the burden or should it be the local authorities or should it be the landowner or and where is the and given the fact that this is this bill and this policy memorandum are to ensure a greater diversity of land ownership ensuring greater diversity of investment thinking about social justice and more fair and equitable use of land to sustainable development objectives it seems unfair as a result of these that it is the local communities, the tenants, the crofters who pay the burden of that from an administrative perspective rather than local authorities or other landowners and because it's all at the end of the day this is to do with you have to consider who has the fact that there is very different and unequal access to power and information and resources and that has to be taken into consideration in terms of what is the most appropriate procedure in order to achieve these policy objectives the provision says is the only only practicable way of achieving that significant benefit now that significant benefit is very precise because it's the same benefit as you would get from purchase so it isn't just a benefit it's that particular benefit but it needs to be the only practicable way not a more convenient way of achieving it so if it the would require to establish that the test is whether the alternative that is being urged upon the ministers or which they are finding themselves is the only practicable way now it might be argued that because of the cost and element of social ostracism it is not a practicable way for a tenant to sue his landlord or whatever and the ministers might be satisfied on that but that's the test that is to be found in this and it's that high test that I think has persuaded us that this is convention compliant so the issue of convenience that we just don't want to use another route wouldn't satisfy the other route is not in those terms practicable that's not convenient that's the difference I'm drawing yes I would say that it's important to bear in mind that there's a distinction between being convention compliant and being safeguarded against landowners A1, P1 rights and as it's currently drafted the threshold is very high it's clearly intended as a pound of last resort it's clearly going to be the shadow of the law and not the actual execution of the law which is intended to make a difference here and therefore is land going to be freed up through this provision sufficiently to address the other rights like adequate housing and so forth although adequate housing is not in the ECHR bear in mind but housing is indirectly so my view would be the other side the threshold is the threshold too high to use that threshold you could but perhaps not to the betterment of the community at present the provision will serve as a stimulus against a deterrent against the kind of mischief but will it act as a radical power of radical force of empowerment oh and how can you produce a radical force of empowerment within to make a convention compliant you have to invite someone else but you are here please feel free to give us a thought yeah oh no okay just on the point about ease of action certainly if an alternative is prohibitively complex then you would discount that from the proportionality test that's not something you would take any account of an alternative that is perhaps a little more administratively burdensome is nevertheless still a valid alternative from the proportionality perspective so you would have to be getting into the point where an alternative was in reality just not going to be workable before you would completely discount it from the test on the point about patterns ownership as in paragraph 5 of the policy memorandum I would query whether changing patterns ownership would be regarded as a legitimate aim under the ECHR for its own sake so I think that and I say that because article 1 and protocol 1 the fundamental principle that underpins it is the principle of private property and that people should not be deprived or have their property rights restricted unless there is a wider public benefit that would be served by doing so so I think it's there is a risk in saying that one is entitled to change the ownership of property because changing the ownership of property is what one wants to do there's nobody saying they want to produce greater equity by changing the pattern of ownership now that presumably would be a legitimate purpose so you would have to be looking past the changing of ownership to some other purpose that would be achieved by that change of ownership that's a conversation all the way along so that's really the point I was making about how there's a risk in having the only tool in your toolkit one that relates to ownership when there may be other ways to change that aim that you are actually pursuing Eleanor Dimey It's really just to kind of enter what Mr Russell is saying is that I don't think anybody had ever said that it was changing ownership for changing ownership's sake and paragraph 5 is quite clear that it's to ensure diversity of investment, greater sustainability and with that comes empowerment of communities and certainly if you were changing ownership for the sake of it that would be a very different thing to what is actually the aim and it was just really to agree with what you were saying I think we could have a very long debate about this particular point but that's a sufficient background and depth to be able to go on with at the moment because we still have to deal with agricultural holdings and Dave Thompson is going to lead on modern limited duration tenancies Thank you Eleanor panellists will know that section 10 deals with this issue and the conversion of secure tenancies, 91 tenancies to MLDTs Apparently some landlords operate on the basis that they have an expectation that they will recover their holdings in the near future I'm not quite sure where that expectation would come from it's something that we've picked up in the evidence we've received but I do know that the evidence shows that the number of 91 tenancies has been inexorably reducing and with a very clear example of that in the Borders last week where one estate has reduced the tenancies from 37 to 27 over a 35 year period so it strikes me that the expectation is probably warranted in the sense that historically we're seeing that happening and it strikes me that there's a bit of a war of attrition going on against section 91 act tenancies that is forcing more and more of them out and it also strikes me that this will lead to more of that but I'm particularly interested in if you do have any general comment in relation to that and that expectation because it leads into the potential loss if you like that landlords would appear to claim they may have and it also relates to the length of the MLDTs and claims that if they're lengthy the land reform review group 35 years that this is to the great detriment of land owners what I can't get my head round is you have secure tenants right now now I understand that that means that the value of that land to a land owner is probably less than it would be if there was no secure tenant but that's no reason in itself to be getting rid of secure tenants and it's no reason that landlords should think that a lengthy MLDT would be to their detriment because even the almost lengthiest MLDT is still going to be an awful lot shorter than a secure tenant that could go on for hundreds if not thousands of years so I would just like comment from the panel about the ECHR aspects of the MLDTs and some of these issues that I've raised there to start I wonder if this concern relates to long leases being established as possessions which came from ECHR case law it was established in James vs UK that long leases qualify as possessions that therefore have certain rights attached so that was James vs UK and also in Stretch vs UK it was established that a tenant who had a 22 year lease had the legitimate expectation that that would be renewed and therefore it would be an interference with their possession if their lease is not renewed so perhaps this is a response to protection of leases by the ECHR I think the ECHR does include within the concept of possessions any legitimate expectation of acquiring a particular possession or a particular right at some point in future so the engagement of article 1 and article 1 really comes into the extent that any legitimate expectation of recovering possession at some point in the future is either frustrated completely or is pushed out to a much later date than would be the case so again it's there may well be cases where conversion to an MLDT would actually result in a likelihood of possession being recovered sooner than it would under the pre-existing relationship but there will also be cases where it's the other way round so again it's that point about having to look at these things really on a case by case basis ECHR rights may be engaged more in some cases than in others so in the abstract it's difficult to say exactly where the line should be drawn on for example the length of an MLDT but certainly the longer it is the greater restriction there is on the landlord's ability to recover possession so the longer that restriction the really the higher the bar in terms of establishing that something is justified for convention purposes I'm right in thinking then that tenants who have secured tenancies at the moment in 91 tenancies wouldn't be very wise to agree to that change especially if the length of the MLDT was say 10 or 15 years because then the expectation of renewal of the lease wouldn't be there unless it's a situation where basically they've got a security which can run on through a signation succession and so on they'd be basically given that away and I don't know what sort of compensation they might get for losing that security and just on your point there about the legal expectation of getting a tenancy back in hand would a landowner in all reasonableness have any expectation of getting a section 91 tenancy back in hand given that they are permanent so why would there be any expectation in a legal sense or anything like that surely it just wouldn't be there I guess when the expectation to the extent that when the landlord entered into the agreement the landlord would know the circumstances in which he could regain possession he doesn't necessarily know if or when any of those circumstances might be triggered but he knows that in circumstances X, Y and Z he will recover possession if you're then widening the circumstances or sorry narrowing the circumstances in which he can recover possession he may never have had a fixed point in time at which he expected to recover possession but you are reducing the prospect of him being able to do so would there be a difference in that case between current section 91 tenants whose leases and so on go away back to 1948 where the landlord's ability to get them back in hand was much restricted because assignation etc was much much wider at that time and it's been reduced over the years by act of parliament so someone with a base back in 1948 would they be in a stronger position than someone who had got a section 91 tenants say 5 or 6 years ago for instance I'm afraid we're straying outside my area of expertise on the details of agricultural tendencies but what I can certainly say from an ECHR perspective is that there will be cases where a tenant may be better staying put with the arrangement that they have and there will be cases where it will be in the tenants interests to convert so I would expect tenants to be very alive to the pros and cons of exercising that ability in any individual case from a convention perspective because it is to a certain extent a zero sum game so the more options the tenant is given by legislation the fewer options the landlord has so that sort of transfer of the power relationship is why ECHR rights would be engaged and I say engaged rather than necessarily infringed because obviously you can justify infringement Anyone else have any comment on this? I understand that it would be the land owner's responsibility to establish a legitimate expectation in that situation perhaps mongol could confirm a legitimate expectation of the property to be received The party who asserts a legitimate expectation has the burden of showing it I mean if you have a right well if you don't actually have a right then you can claim a lesser right which is called the legitimate expectation which is just that it comes in varying forms depending on whether you have what your expectation is procedural that you have an expectation that you'll be heard before a decision adverse to you is made or whether it's substantive that you would retain a particular tenancy or that you would get rid of a particular tenant or kind of lease substantive legitimate expectation is extremely difficult to establish by then someone with a 91 tenancy at the moment has got permanency as far as that can be the case apart from certain circumstances where that might change if they converted to anything below was it 23 years you mentioned or thereby they lose that permanency if it's above that they retain at least some expectation of permanency so therefore the value of that tenancy to the tenant on that lower figure is much less because it's going to finish and they've got no permanency assured the value above that figure is going to be maybe much the same as their current 91 tenancy so would there be an expectation that there should be compensation built in to 91 tenants if they agreed say a 10 or a 15 year MLDT given that the value of what they have now is going to be reduced in future would that be a I have to say our reading understanding was that there wasn't any compulsion to convert and therefore if you agree to convert then you do so as a matter of agreement and the terms in which you agree to convert are a matter between the landlord and the tenant and if a tenant is giving up a security and a long term security in favour of a more short term arrangement then he might want compensation and the landlord might be willing to buy him out to that extent but if unless and until the legislation forces or otherwise pressures him to convert from a favourable to a less favourable situation it doesn't really raise convention issues well except that there may be no legal pressure but there may be other pressures on people to convert as there are pressures just now for them to give up the tenancies together so life's not as simple as what you get in the law life's far more complex and therefore the ability for these things to exist may actually work against tenant farmers we were discussing earlier I think Mr Russell was picking up in the point about equality of arans is that the term you use in legal circles tenants in general are in a much weaker position than land owner so I'm just beginning to wonder if this is a very sensible way forward at all because it opens up the possibility of pressure being put on people to convert and then they convert to a 15 year MLDT and they've basically given away everything they had and they're not in a position to negotiate decent compensation from the land owner who's in a very powerful position the issue of pressure on tenants is to some extent addressed in domestic legislation and it would be possible for you to address it in relation to commercial or farming property if you chose maybe you'll add to that briefly there may well be policy considerations that would lead you to want to have compensation provisions for tenants who convert but I think those would be policy considerations and not something that would be driven by the need to comply with the convention so as I mentioned at the outset the convention is very much about governing the relationship between the state and the individual and things that the state requires the individual to do necessarily requiring a particular intervention in any relationship between individuals the practicalities of this are as follows if we think about the minimum term for converted tenancies that has been suggested by Brodies, by Scottish Land and Estates and so on we're talking about a five to ten year sort of area in there that's been suggested but in fact from any tenant's point of view if you're going to develop livestock particularly it's going to take a lot longer than that to actually achieve the benefits from it so that's one aspect if you're going for diversification saying to wind you're going to need more than ten years probably to realise the asset so why is it Charles Livingston that there's moved by SLE and your firm to try and have a minimum period for MLDTs to cover I think the driver for having a minimum period is really to reflect that there will be circumstances not the circumstances you outlined but some circumstances where the landlord and tenant may only want to enter a lease for between five and ten years and as I understand it the way the statutory framework would work now is that that would not be possible it would be shorter than that or longer than that so I think the driver for that is really about offering flexibility to both parties now obviously there may be policy considerations not to do that but it's really flexibility the driver for that submission on our part I can't speak for SLE of course just to rewind a little bit I would say that on the compensation for the change of lease there could be potential there if you consider what was said or established already about a landlord's property right being interfered with that can be justified so long as it boils down that there is no arbitrary decision making and that inadequate scheme of compensation is generated and if we take from the established case law of the EHR that leases have some proprietary interests or qualities then an interference with a lease is an interference with the right to property and again it boils down to the same things that can be justified so an interference with a lease may be justified so long as there's sufficient safeguards to avoid arbitrary decision making and a sufficient scheme of compensation so I wouldn't wipe that idea away completely okay I think we'll try to move on to the wonderful subject of Asic Nation and Succession now Mr Russell I think you're going to ask a question I think we're almost complete in terms of what we've heard on that issue it takes us pretty much through it but just on the last point that's been made there you appear to be confirming what we've been discussing all along providing the legislation is sufficiently clear providing the legislation is sufficiently straightforward in terms of what the expectations are providing the legislation has within it an adequate scheme of compensation and providing the legislation the overall intention of the legislation is not misunderstood then the policy objectives that might be existing in this bill are reasonable and could be taken forward but there is work to do to make all those other things fit into place correct because you could also say that without those changes in the bill will still be biased towards the rights of property and particularly biased towards those who have land to lease and that's not fair to some people who we've seen who are not having their leases honoured but who are unable to pursue that in law good I'm happy Megan McKinnis this is not an area of the bill that we've looked at and it's not an area of expertise but one possible solution if there are concerns unantysiated or perverse impacts of the implementation of this bill the role of monitoring those impacts and then suggesting alternatives future amendments to the bill could be given greater emphasis within the role of the Scottish Land Commission in particular the Land Commission's and the tenant's farmers commissioners because at the moment for example on the function of the land commissioners it says they are expected to review the impact and effectiveness of any law or policy you could extend that to say and also monitor perverse outcomes or on our negative and unantysiated outcomes and that would be a way of making sure that changes to the lease terms and whether or not there's concerns about tenant farmers being forced against their will because of local political situations for lack of a better word describing that that would be one way of capturing that and monitoring that the SLC of formal world to to sort of make sure that amendments are made in the future some conclusions to this matter rather than go ahead with further legislation I mean I think an area of agreement between myself and Alec Ferguson throughout this process has been that we should have some definitive statement on what the law is and how this matter is going forward out of this bill rather than wait for yet again for a future bill which I think to add to this is useful to know in the previous discussion about MLDTs and so on it was suggested that if somebody had a lease of say 20 odd years and it'd be interesting to see the case law about this there would be an expectation of being able to have the lease renewed in terms of Assygnation would the family of a farmer have an expectation that they would be able to have the lease continued in the family because that's an area of contention about the scope of the list of people who can be assigned to and so on so how much can a family expect that they could continue in that tenancy I think that that question would be engaged more if you were reducing the ability of family members or reducing the list of those family members who are able to succeed or the terms on which they are able to succeed I think if the question is would there be a frustration of legitimate expectation if this bill didn't proceed and therefore those who would have been added to the list were not added I don't think you could make that argument from a convention perspective because until the legislation is in place I think you would have difficulty justifying having any expectation of succession in the first place I don't think a contingent right to succeed is a very strong one or a very promising basis for litigation if you had somebody who's right to succeed had crystallised and then by legislation you took that away that would be a good example of circumstances where your article your convention rights might be prejudiced but here you're extending this and it doesn't seem to me that there is an issue the issue of somebody who is on the list and might expect to succeed again it's not clear to me why he wouldn't succeed given the if you legislate in the terms that you're proposing to do in section 84 our concern was that the result of section 84 meant that a person who a landlord who had reasonable grounds to believe that the person, the assignee will not farm with reasonable efficiency was still obliged to assign because that wasn't put into the new subsection 3a as a reason for refusal in other words there was the grounds for refusal of an assignee are good character or not being a good character not having sufficient resources and not having sufficient training but it seemed to us that there might it might be unduly burdensome on a landlord but a good good reason to think that the assignee would not in fact for any multitude of reasons not in fact farm the land with reasonable efficiency and so given that it's an exception which would be for the landlord to establish we have suggested at paragraph 41 faculty's paper that an additional ground for refusal might just prevent any danger of a forcing a landlord to assign a lease in circumstances which were perhaps patently unsatisfactory yes, I would make a note of that in terms of our evidence Charles Livingston then just one small supplementary point on tenants' interests something that she'd perhaps have mentioned I suppose it's possible that there may be people who are currently within the group of people to whom a tenancy can be assigned and who are for example already working on the farm and have an expectation that they will succeed to that in the event that the existing tenant dies I suppose it probably wouldn't rise the level of convention rights being infringed but their interests might be prejudiced if by expanding the list of people to whom the tenancy can be bequeathed the tenant suddenly decides to give it to somebody else instead who they couldn't previously have given it to I'm not sure that will arise in too many cases but purely as a hypothetical it may be an example of where those interests could be engaged because certainly being established on the land working in partnership with the tenant might give somebody a degree of legitimate expectation that legislation should support them in taking succession to the tenancy rather than opening up avenues for somebody else to get it instead so of course I think you should I think however as Mungo just made clear that there is a difference between an expectation to receive a lease and an expectation to renew a lease and it is unlikely that the ECHR would consider the expectation to receive a lease as a right to property issue as Mungo just made clear I think we've got that that ECHR can't be used retrospectively so people couldn't say that ECHR, the convention rights are in here now but I want to go back to 1948 and reclaim the rights I had then is that possible at all? Time limit on admissibility claims I can't remember who said that law is the hand made of politics but I think there would be at least a question mark of why the right to inherit property was greater than the right to inherit a tenancy if one is an absolute right to inherit property and to have that property protected then I think one should at least consider whether those who might have tenanted a farm on occasions for 100 or more years should not also have an equivalent degree of protection respect for their rights There's two parties to this so that the ownership of the land is not a property is not in this respect comfortable with the contractual relationship that is being transferred the general rule indeed is that once contractual relationships end with one's death and so this is a half way house is it where it's a contractual relationship which need not end at death as most contractual relationships do but certainly I don't think we would have any difficulty in seeing that there was a difference between the ownership of the ability to pass property and the ability to pass a lease I think some of my constituents might look at it for 100 years and say why should the landowner pass the land on but they cannot pass the land on that they have worked for all that time but that's a political issue perhaps not a legal one Rhym Day we're happy with that I think we've reached a point where we are saturated with information with regard to this but it's been highly interesting to better focus on this it's been an excellent panel and you've all contributed to our knowledge of this and indeed hopefully to the improvement of the bill in due course so thank you very much panel we'll have you to stand down now we have to move on and do other bits of business so I'm sorry but we're going to have to move you on we're not taking witnesses so if you could just quietly start to move out the third item in our agenda is for the committee to consider PE01490 by Patrick Krause on behalf of the Scottish Crofting Federation on the control of wild geese numbers the committee last considered the petition at its meeting on the 24th June agreed to write to the minister outlining our views on the need for an independent inquiry on the 1st of September we received a response from the minister and I refer members to the letter and the papers and invite comments from members on the petition Mike Russell I'd like to suggest that we find a little bit of time in our credit schedule to take some evidence on this issue to see if we can move it on we're into ping pong between the minister and Patrick Krause at the moment and it's not getting very far I had an email last night from the NFU in Islay who are more and more concerned about this if I might just briefly quote a couple of points from it one is that the national goose management scheme is creaking at the seams and at the last meeting the Scottish government apparently asserted that they did not yet know whether it was state aid compliant that means that the new scheme may not be able to pay money out in December this year that would be very serious indeed to the damage that's being done on Islay and the NFU quoted extensively there's also the complaint that's presently now been lodged by the RSPB about the goose scheme and the refusal of the RSPB to take part in the goose scheme this actually puts the whole scheme in jeopardy and some of the assertions that are being made by the RSPB are highly questionable highly questionable and I've seen emails and other material which needs to be challenged in this matter the RSP also say that there's no research has been done over the last three decades and there's been a total of research done on this issue people have even got PhDs from researching this issue so I do think we need to bring some of these facts into the open I think we need to have an open discussion and to hear from farmers and crofters in the affected areas as well as hearing from the RSPB and the Scottish government and to try and move this issue on in a constructive way because it is a running sore a present and people are suffering and their livelihoods are suffering I think we're talking about both the resident and the migratory he's here two different, slightly different problems but yes indeed the proposal's there for people to comment upon Sarah Boyack Thanks very much convener I think Mike Russell's take on this is actually really important because he represents lots of local communities but I think we need to look at the recommendation we have in front of us which is a choice of seeking the petitioner's views on the minister's proposal or whether we accept the minister's proposal as far as they go and I think the point made previously was about having proper research now the minister is not keen on commissioning £100,000 external piece of research but I can't see what would be wrong about the minister's proposal about getting SNH to do some work to bring this up to speed and that we have crofting and farming communities and the kind of interest that Mike is talking about being on a panel to do that I do think we should keep a watching brief on this I suppose the issue is whether we should stop now and keep this open or at what point we will get any progress made because if there are legal challenges there's nothing we can do about that but certainly when we were out in Islay and Jura last week last week, two weeks ago one of the things we saw were fields that were totally flattened so it's clearly an issue and I think the point about rather than spending £100,000 on external reviews shouldn't the focus be on what's happening to the goose management schemes and that is the issue that actually comes out of this going forward in terms of Mike's comments about whether they're legally competent or not whether they're in line with EU requirements and what we haven't got from the questions we asked of the minister is more about what's happening in other European countries and I think that's something that I think is actually really important not just as to whether the scheme is legitimate or not but actually what are the other approaches being taken that we could learn off in Scotland and it's kind of disappointing that we haven't got feedback on that in Europe on and rather than going through our minister but can we go directly and ask for proper information on this we've had Phil Hogan to our committee before but I do think that's something that we need more information on Mike Russell If we get a bit of research done that would be helpful certainly on what's happening and that is a defect but I think the point I'm making is we need to get some progress with this, a review involving stakeholders whilst no doubt interesting would simply continue the matter through this winter at a time when people really feel that they have to begin to get a serious resolution if there is no money paid for this and the resources are falling all the time then there is real hardship being done to farmers and crofters on Islay and in other places so result of what I'm suggesting is and I'm certainly happy with Sarah's suggestion that we should get information but I think we should hear from the affected parties ourselves and try and help to take this issue forward because nothing else is making any difference another group won't make any difference we'll be back here again this time next year and the problem will still be as bad In order to sort of encapsulate this we have a work programme discussion next time we meet it's possible for the clerks to put together a way in which we could handle hearings etc and put them as options to us at that time but I think the basic condition at the moment is to continue the petition with a view to making sure that that work programme actually offers a means for us to find out what Sarah Boyack has asked what is the condition of things now and for us to then decide on a way forward because it's been suggested that we perhaps go to Europe that might be into a massive maze it might not actually help us very easily but I think we need to know exactly what the situation is and then for us to be able to have a hearing here to actually be updated about that and to decide on the basis of that so first of all we have Jim Claudia and then Graham Thank you just to I'm sorry to wait for the microphone just to add to that I think you're quite right we did have evidence sessions on this committee maybe prior to Mike Russell but being on this committee it's absolutely right I don't think progress is going fast enough but I think in the meantime before we look at the work programme at the next meeting we could actually seek the petitioner's view on the minister's letter I think that would be quite easily done We're in the process of doing that at the moment so we'll have that information to bring to bear next time Thank you for that Jim, Claudia Thank you convener That's certainly an option that I think we should be considering in our work programme I would also like us to if the committees in agreement ask the the clerks to consider for the work programme the possibility of looking at where the independent review might go because we have taken a lot of evidence on this issue and I think in a sense in the end it will be up to the Scottish Government to actually look at not just having an independent review panel but an expectation which we might consider through the work programme when we discuss it writing to the Scottish Government saying that there should be actions coming from from this review because let's face it we've seen the evidence we know what the problem is SNH knows what the problem is and the Scottish Government knows what the problem is and it's time for the Scottish Government to act so I would just like that other possible work stream rather than taking more evidence in committee to be considered I note the disappointment that's been expressed over the relevant authorities in Norway and Netherlands not responded to requests for information sharing it strikes me that we as a committee in seeking to develop our understanding of this and perhaps identify solutions might write to our opposite number of committees in Norway and the Netherlands asking for an understanding of any work they have done in this area and beyond that what information they might be able to share with us with regard to what has been done in those countries nothing venture nothing gained we can take a number of actions Sarah Boyack I think a lot that sounds very sensible the one thing that struck me in our committee paper from the clerks was a comment in the minister's letter about she'd rather not spend money on an external review she'd rather spend that on goose management schemes and finding out what is being spent on goose management schemes would that £100,000 be spent on goose management schemes would be a good thing to find out I think we've got enough information on this to say, as I said at the beginning and we agreed, we continue the petition we find out the petitioner's views about that we pursue the workstream with regard to alternative committees in other countries we also look at Claudia's point about the review and so on so therefore I think we have a good sense of what the clerk should be doing for us before our next meeting and that that does take forward to some extent what we expect to happen thank you very much about that future meeting details at the next meeting which is in October after the recess we'll consider an affirmative instrument before taking evidence from the Crown Estate on its annual Scotland report 2015 on the revolution of the Crown Estate in Scotland in addition the committee will consider its work programme and as previously agreed the committee will now move into a private session but just before we do Graham Day if memory serves we had requested an update on the Salvis and Riddle mediation situation from the Government I think we asked for that update by today I'm just wondering if the clerk's good advice what's happened bring in the clerk yes you're correct Graham the deadline was today we've been in touch with Government officials they were confident they could meet that deadline of today so we'll be following up after this after this meeting we have three weeks before we meet again it is quite important that we get urgent information the information from the tenant farmers that we've had I think today says that they have had no contact from the Scottish Government if that is true that would be very worrying indeed as soon as we are at the Government's response we'll circulate that to members and we'll also include the issue in the work programme paper to come back on the 28th of October from the 28th of October till the 28th of November which is the deadline in relation to the order that I've got serious concerns that we would be leaving it for three weeks and I appreciate the various committee needs but I'm not quite sure how we can I would depending on what the letter from the Scottish Government says I would want to be responding through the convener to seek further reassurance of what action is being taken you know after receiving this letter through committee email discussion we are agreed but we need to see the letter from the Government so that's understood and I think we're agreed that we're going to keep this very much in focus to get as early progress as possible right we're now moving to private