 Good morning everyone and welcome to the third meeting of the Lowell Government and Communities Committee in 2018. I'm Monica Lennon, the vice convener. I'm not Bob Doris, our convener, who has been caught up in some travel disruption this morning. Bob may be able to join us later with Capture. A place for him. Can I remind everyone present to turn off their mobile phones or keep them in silence? As meeting papers are provided in digital format, tablets may be used by members during a meeting. Apart from Bob, who may join us, we don't have any other apologies today. Can we move to agenda item 1, and welcome the Cabinet Secretary for Environment, Climate Change and Land Reform, Rezarna Cunningham, and her officials Judith Brown and Robin McLean? The Committee will take evidence on an affirmative statutory instrument, which provides regulations for allotments under the community empowerment Scotland Act 2015. With the record, I will say that Robert McLean is a policy officer with Food, Drink and Trade Division and Judith Brown is a solicitor with the Scottish Government. This instrument is laid under the affirmative procedure, which means that the Parliament must approve the instrument before the provisions can come into force. Following this evidence session, the committee will be invited at the next agenda item to consider a motion to approve the instrument. Can I invite the cabinet secretary to make a short opening statement? Thank you, convener, and it does make a change to be sitting in front of a set of different committee faces to the one that I'm normally sitting in front of. This is a fairly technical issue, as I'm sure all members have realised. The draft order does form part of a package of secondary legislation laid before Parliament to implement part nine of the Community Empowerment Scotland Act 2015, which was the part of the act that updated and simplified the legislation on allotments. The intention of the draft order is primarily to avoid any potential misunderstanding of section 115 of the 2015 act once it comes into force, which it will do on 1 April this year. We're clarifying Parliament's intention in respect of that. The draft order modifies section 115 to clarify that local authorities must ensure that their first allotment site regulations made under that section cover all allotment sites in the authorities area. It also makes modifications to section 116 of the 2015 act to clarify when a local authority's regulations are made and come into force. Lastly, the draft order will repeal spent provisions of the Land Settlement Facilities Act 1919. In a little bit more detail, all allotment sites, the clarification was needed to ensure that it was unambiguous, that everybody understood that all allotment sites would require to be covered when the first regulations were made by each authority. In respect of modifications, the intention is that, for certainty and consistency, each authority's first set of regulations is to be enforced within two years of commencement of section 115. Accordingly, article 23 of the order makes the modifications to section 116 necessary to clarify that. Lastly, the order repeals certain provisions of the Land Settlement Facilities Act 1919 relating to allotments, principally because those provisions are now out of date and no longer required as a consequence of the 2015 act. That's a very brief overview, convener. Obviously, myself or either of the officials would be happy to answer questions. Thank you very much, cabinet secretary. I'll invite members to ask questions. Andy Wightman You said that it was Parliament's intention that local authorities should make regulations about all the allotment sites. Obviously, I wasn't here, so can you give me some evidence as to that? Are you clear that that was Parliament's intention that you're just clarifying it? Yes. I think that the slight concern would be that some may interpret the intention as allotment sites, presumably, from this period on, rather than all allotment sites. I should say that the slight issue was picked up on our side, and this is really to try and ensure that there's no ambiguity about that. Given that you're using powers under section 143 of the Community Empowerment Act, which allows you to modify any enactment of primary legislation, which is what you're doing, you're effectively making new law here, I'm just wondering why no public consultation was carried out. We were in touch with the local authorities on this. On 1 November, we wrote to them all explaining the intention to bring forward modification to part 9 of the act as part of the implementing legislation, and there were no responses at all to that correspondence, so there clearly wasn't a huge issue from people. You've done some consultation. Yes, it's obviously not a formal consultation, but we were in touch with them to explain what we were intending to do. That's very helpful. Moving on to the Land Settlement Facilities Act 1919, one of the provisions that repeals section 22 of the 1919 act, I'm just wondering why you said it was spent. I'm just wondering why that provision is spent. It's a power to appropriate land to provide allotments. That seems to me a useful power to still have on the statute book. By local authorities? Well, like yourself, I wasn't actually involved in the passing of this act, and I certainly wasn't involved in the 1919 legislation, although sometimes it feels like I might be. I don't know whether or not either of the officials can respond to that. I could, Judith. Perhaps help. The overall approach of the allotments of part 9 was to repeal all of the existing body of allotments legislation and start afresh with part 9 provisions. It was identified late on process that this was one that had simply been missed, so for consistency we were repealing this as well. It's similar to other provisions, for instance, in the Land Settlement Act 1919, and those are provisions that are understanding as are no longer relevant, and part 9 would replace all of the existing allotments legislation. It was just for consistency and a tidying up exercise on the statute book. For the record, I recall that, by introducing new legislation for allotments and the Committee on Permanent Act, provision was not made to retain the 1919 powers for local authorities to acquire land by compulsory purchase. That was dropped, and that seemed to me something that shouldn't have been done, but that's water under the bridge, so I'm just nervous about repealing a provision that I've yet to hear the evidence as to why it's being done. I mean, this is a power for a Borah urban district, a parish, so the modern local authorities now obviously, where no power of appropriation is otherwise provided, to appropriate for the purpose of allotment any land held by the council or to appropriate for other purposes of the council land acquired by the council for allotments. Effectively means that land that the council owns that might suffer from some restrictions that may be bought under another enactment can be appropriated for uses of allotments. That seems to be appropriate, and we've had problems not specifically in allotments, but we've had problems in relation to appropriation of land. As you'll recall, the Portobello School was on common good land, which the law in 1973 said that it couldn't appropriate, and we had to pass legislation in this place to allow it. I'm just very nervous about passing legislation where I'm not clear why it's being done. You say consistency. That doesn't seem to be sufficient evidence. I suspect that the approach that's being taken is that we've effectively systematised all of the legislation that relates to allotments. In those circumstances, I suppose that the argument that you are making is that, in that decision, something equivalent to that provision could have been made if we were going to repeal previous decisions. However, I don't understand that that even was a discussion or an argument at the time. I suffer from not having been involved in the actual progress of the community empowerment legislation, so I can't speak from personal experience on this. Can you remember if there was an active discussion at that time? Yes, there was. It was felt that there was a need for more evidence as to local authorities having used that power to acquire land for allotments. It was felt that until we had that analysis, we weren't going to do anything with compulsory purchase. It was an issue that had come up. We simply need more evidence before we can take something forward with perhaps new legislation or putting into a bill that's on-going at the moment. I mean, there are other provisions, of course, for communities to acquire land to themselves to, and that's all being brought through from the community empowerment side as well. In fact, perhaps also add that there's similar provision in section 73 of the Local Government Scotland Act 1973. I'm afraid I don't have a copy of that with me, but there are sections of the bill that provide that there's a protection that ministerial consent is required for change of use of allotment sites and an alternative allotment being offered. Section 22 didn't have that additional protection. It was really, in light of the existing power in the 1973 act and the additional protections under the part 9 that was felt that that provision was no longer required. Section 73 act is that section 73 of the Local Government Scotland Act 1973. I'm afraid I don't have a copy of that section with me. It was along similar lines to appropriate land for allotments. What you're saying is that section 73 of the Local Government Act 1973 contains the same provisions or updated provisions of the section 22 of the 1990 act? Encycl, but similar provisions of the power to appropriate lands. I'll let others in and I'll have a look at the 73 act. Any further questions from members? Excuse me. Just to be clear, when you wrote to councils, were you asking for a response? A letter to councils? I can share a draft with the committee. Certainly, we didn't tell them not to respond to us. I can't remember the exact wording of it. You would certainly be advised of intention. Between writing to someone and just telling them what you plan to do, and writing to someone and asking them what they think about it, that would be a consultation. The format isn't a consultation. Scottish Government has a very good working relationship with local authorities, so they know that they have a direct line to us if they need to ask us any questions or they're not happy with some of the proposals that are put forward. As I said, I don't have a draft in front of me, but there's certainly not. If one of the local authorities did have an issue with what was being proposed, we would have taken that on board. Can I just be clear on the point that Mr Whiteman raised? If we were to approve this today, is the effect of that, that councils would not be able to appropriate land or change the use of land that they own to allotment sites? Would that be the effect of it? If I can just turn to the appropriate sections. Is the concern that councils would not be able to get rid of land to change the use of land that is currently allotment? I think what Mr Whiteman was, his line of questioning, was around the power for councils to change the use of land to allotments, land that they currently own that's not an allotment, they could change it to an allotment. My concern is if we pass this, that they won't have that power. I'm just seeking clarity. There's no prohibition here that would prevent them. In fact, they are encouraged. There are duties for local authorities to find ways of creating more allotments, so that there is nothing in part 9 that would prevent them from doing that. Thank you, convener. The benefits of having Wi-Fi is that we can look at section 73 of the local government, Scotland Act 1973, which says that, subject to the 59 act and following provisions, a local authority may appropriate for the purpose of any function, whether statutory or otherwise, land vested in them for the purpose of any other such function. On the basis of that, it also includes the land to which section 2 applies is held for use as allotment. Subject to that, I'm content with that. Maybe I should have a word of advice on policy notes, it would help if some of the rationale for repeals was given there. I say that specifically because this is a secondary legislation that is modifying an enactment. It's modifying statutory provision that it's not a regulation itself. It's changing the face of an act and repealing other acts. It concerns me that sometimes those things are done for the best of intentions. I have absolutely no doubt about that whatsoever. However, if limited consultation is done or Parliament hasn't really had time to scrutinise it or we find it difficult to understand the rationale, then things can easily slip by. I think that there are a couple of points of clarification, because that was all very interesting. The issue around local authorities, given that we all know that there is a growing interest in allotments and there is certainly demand, I found it quite surprising to hear that local authorities didn't reply at all. Perhaps that is an issue to revisit the way that the letter was framed. I'm not sure if it was Judith Brown, but was there a point about ministerial approval for change of use? Did I pick that up correctly? That's the situation where, if local authorities wish to change allotment sites for other uses, they can't dispose of or change the use of those sites unless certain conditions are met. That includes getting Scottish ministers consent to the disposal or change of use. It's an added protection to keep allotment sites in place. After the normal statutory planning process in the local authority, is that a notification direction? Yes, it is, in addition to that. Okay, thanks for the clarification. If there are no further questions from members, that takes us on to item 2, where the committee will formally consider motion S5M—oh, sorry, forgive me, I should have invited the cabinet secretary to respond to the debate. Apologies. I don't think that there's a huge amount that I need to say. I think that the point is well made by Andy Wightman about the clarification around the rationale, so I'm sure that the officials are listening to that. I can ask the officials to forward a copy of the letter that was sent to local authorities so that they can see for their own contentment that was done in a proper manner. Apart from that, I don't think that there's anything else that I need to say. Thank you, cabinet secretary. That's helpful. We can move on to agenda item 2. Our convener hasn't arrived yet to help me out, so bear with me. At this point in the meeting, the committee will formally consider motion S5M-9989 calling for the committee to recommend approval of the draft community empowerment Scotland Act 2015 supplementary and consequential provisions order 2018. I invite the cabinet secretary to speak to and move the motion. I'm not sure that I'm required to speak at this point, given the conversation that we've already had, but I'm certainly happy to move that the committee supports the draft order and recommend that the draft community empowerment Scotland Act 2015 supplementary and consequential provisions order 2018 be approved. Thank you, cabinet secretary. I invite any contributions from members, and there are none. At this point, the question is that motion S5M-9989, in the name of the cabinet, Secretary for Environment, Climate Change and Land Reform be approved. Are we all agreed? We are. The committee will report on the outcome of the instrument shortly. We can move on now to agenda item 3. The committee will consider negative instrument 457, as listed on the agenda. The instrument is laid under the negative procedure, which means that its provisions will come into force unless the Parliament votes on a motion to annul it. No motions to annul have been laid, and I invite members to make any comments on this instrument. Andy Wightman. I'll just comment that this is a negative instrument and there's been a vast amount of consultation on this. I do actually have a concern—this is broader, but I think it's appropriate to raise it—that affirmative instruments where ministers are using their powers to modify an enactment should actually be subject to a super-affirmative, I think. This is an increasing power that is seen in a lot of legislation where ministers can modify an enactment. They could bring forward an order to repeal an entire act, if they like, that just comes before a committee. I just want to put that in the record and maybe we could consider or some other committee. Maybe my colleague Mr Simpson here might have a wee think about that in future. I'm content with this regulation order. Noted, thank you to Andy Wightman. Just for the record, I can just invite the committee to agree that it does not wish to make any recommendations in relation to this instrument. I think the points that have been said for the record will be picked up by officials, I'm sure. We're all agreed. Excellent. That takes on to agenda item 4, which is public petitions. PE1539 by Ann Booth on housing associations to come under the Freedom of Information Act Scotland 2002. The committee will consider the petition in the name of Ann Booth, and that would call on the Scottish Government to make an order under section 5 of the Freedom of Information Act 2002 to make all housing associations subject to the provisions of that act. The committee previously considered this petition last year and determined that it would consider the petition again once the Scottish Government had responded to the consultation on extending FOIs to RSLs. The Scottish Government announced in December last year that it intends to proceed with proposals to extend FOIs to RSLs and is now consulting on the terms of draft order to bring this into effect. The consultation is due to 1 March 2018. It is likely to be the committee that will consider the order that will be subject to the affirmative procedure. Can I invite comments from the committee? The petition was lodged on 17 October 2014, so we're three years into this process. I commend the petitioner for her diligence. It seems that the petition is ping-ponged around committees, the Government and the regulator. It seems to me that what is being asked of this petition is to call on the Scottish Parliament to urge the Scottish Government to make an order under section 5 of the Freedom of Information Act 2002 in relation to freedom of information and housing associations. It appears to me that the Government has now, as you mentioned, as issued a consultation on bringing forward such an order. Therefore, there's no need any more for the committee or the Parliament to urge the Government to make that order. Obviously, they still have to make that order, but it's subject to consultation and, as we understand, it's being brought forward. Therefore, I don't see any reason to keep this petition open any further. Thank you to Andy Wightman. Any further comments to make? I just agree with Andy Wightman. I think that the petitioner can be satisfied that, despite the length of time it's taken, they've actually achieved what they set out to do and the Government will or has responded will deal with that order when it comes before us. I agree that we should close the petition. I echo the comments that have been made, particularly the tributes to Ann Booth, who has been very patient and diligent. Will that lead me to close the petition? The committee can invite the petitioner to provide written evidence on the draft order once laid to inform the committee's scrutiny, so I'm sure that we would welcome that. Are there any other actions that members would suggest on that? Okay. At this point, I move the session into private session and I'll give the members of the public a couple of minutes to gather their things. Thank you.