Seòmar agus comataidhean

I was just saying, convener, that I am here because Scottish Land & Estates contacted me some time ago to ask whether I would be willing to lodge amendments in relation to the right of resumption, as set out in the act. Since those amendments were substantially agreed by the Scottish Tenant Farmers Association, I agreed to do so on the basis that both tenants and farmers agree with the approach that I am about to advocate.

I say that by way of background. Although I have not received written confirmation from the STFA that that is the position, I have spoken to Chris Nicholson and believe that to be the case. I will set out what I have to say in more detail on Tuesday morning, when I hope to appear virtually, convener, rather than in person. I thought it fair to offer that explanation.

Members will be pleased to know that I will be brief. Amendment 528, in my name, is related to my amendments in the next group, which aim to introduce an alternative for fairly compensating a tenant when a part of a tenancy is resumed. There are two situations when the tenant’s interest in the lease might need to be valued, and my amendment seeks to clarify that the tenant farming commissioner may issue a code of practice in relation to both.

The first is when only part of a tenancy is resumed. My amendments in the next group address that situation, which I will come to with your permission, convener, on Tuesday morning. The other scenario is when an incontestable notice to quit is served and the tenant is giving up the whole of the holding rather than part. My amendments in the next group do not specifically cover that scenario, but I expect that, if progress can be made now on how to deal with partial resumption, similar provisions could be lodged at stage 3 to deal with a notice to quit. Amendment 528 would enable the tenant farming commissioner to issue guidance for both scenarios.

As I will come on to in the next group of amendments on Tuesday morning, amendment 528 and those that are associated with it have widespread industry support. I am grateful to the organisations comprising the tenant farming advisory forum, which I understand include SLE, the STFA, the NFUS, the two valuers associations—the Central Association for Agricultural Valuers and the Scottish Agricultural Arbiters and Valuers Association—and the Agricultural Law Association. As you and members will know, convener, there is a great body of expertise in all those groups. They have come forward with that option and, as I understand it, have been in discussion with the minister’s officials for some considerable time.

Therefore, there is hope among both sectors that the broad approach that they have suggested, rather than that which is currently set out—for reasons that I cannot come to now because they are relevant to the amendments in the next group—might find favour with the minister.

I move amendment 528.

I am grateful for the cabinet secretary’s assurance, and I am happy to work with her with the objective of coming up with a legally sustainable and accurate form of the amendment. I believe that both the SLE and the STFA accept that there are technical infelicities in the amendment, and I may have communicated those to the officials. If not, I suspect that they will be listening and I may do so before the night is out—who knows?—if they are at their desks.

Of course, convener. That is a good suggestion—your expertise as a former surveyor with your interests would bring extra experience and wisdom to the table.

What you say is one reason why I believe that the SLE and the STFA feel that another solution is required for tenancies under the 1991 act, although the position is different under the 2003 act, as we might come on to on Tuesday. My understanding is that the scheme that is proposed in the bill does not really meet modern circumstances. It is a bit out of date as it is based on land values. It does not really reflect the reality or the costs to the tenant of partial resumption, when new gates and fences are required to be erected, and so on.

We will come to all that on Tuesday. This was always a probing amendment, as I indicated to the cabinet secretary, so that we could have this discussion, for which I am grateful. I know that her officials will continue their dialogue with the various interests, and I am sure that that means that the law will have a better chance of not falling foul of the European convention on human rights or other hazards. On that basis, I seek to withdraw amendment 528, with the committee’s permission.

Amendment 528, by agreement, withdrawn.

Amendment 223 not moved.

Section 9 agreed to.

After section 9

Having read the submissions from the SLCC, the OPG and others, it is clear that this is an area that is not without complexity. The fact that the bill has apparently been removed from the legislative programme begs the question why. I think that, before moving to close the petition, which otherwise I would do, it would be useful to find out why that was done. I think that it is a legitimate question that should be answered. If we ask it and get an answer now, that might save time in the next session of Parliament, were the petitioners to bring the issue back to us. I do not think that we would be unduly extending the work in this session of Parliament, which is limited, given the fact that we have less than a year to go. I am curious about the reasons for the Scottish Government not proceeding with the bill.

Having said that, and having been a practising solicitor for some 20 years—although I am no longer—I note that it is up to each solicitor to assess the capacity of a client, and if one has concerns then one has to raise them, as there is a clear professional ethical duty to do so. Looking at the evidence that we have seen, there seem to be vanishingly few cases where the solicitors have been accused of coercion in any way—I think that that is specifically stated. Of course, it could be said of me that, as a solicitor, I would say that, wouldn’t I?

I sympathise with Mr Torrance’s approach and would agree with it were it not for the fact that the Scottish Government appears to have supported the proposals but no longer does so. If we find out why the position has changed, we may well feel that we can close the petition, having received a satisfactory answer. Mr Torrance may be happy with that.

Yes. It should also be said on the record that, were there to be a new system involving a requirement for a medical opinion, in practical terms, that would involve probably tens of thousands of certificates in situations where, quite frankly, they would not be necessary. Solicitors would be under an obligation to take a precautionary approach, and it would clog up the process of, for example, drawing up a will or arranging a power of attorney, meaning that someone could cease to have capacity in the period in which the process of obtaining medical opinion is going through, or they could die without leaving a will, meaning that an unnecessary intestacy would arise. The system is not without its flaws, but I suspect that the costs of the new process of obtaining the certificates would be very substantial indeed for the client, because I cannot see the state paying for it any time soon.

I would support that, but in doing so I would point to the fact that the petitioner, who has another petition live before this Parliament, is not in any way losing anything today. There is no door being shut on the petitioner. The petitioner is already in the room with the other petition, which is directly considering the RAAC issues.

Moreover, as you have indicated, convener, as well as the members’ business debate, there is virtually constant accountability through members raising questions about RAAC every week. The Government’s response has been inadequate by any stretch of the imagination, and that has been covered in the chamber time and again.

I stress that there is no need for the petitioner to feels that today is a disappointment because RAAC is very much a live issue before Parliament. Whatever view one takes about the performance of the Government, that is undoubtedly true.

Another brief point is that, if there were to be another regulator—another quango—it would make not a blind bit of difference to the problems that face us at the moment. By definition, any such new quango could not impact things that have happened before its existence and establishment. You cannot apply judgment retrospectively in that regard, nor do I think that a new public body would really make the kind of difference that most people want to see. I simply do not think that it is the right solution to an admittedly very serious problem. That is just a personal view, and it could be right or wrong, but it is not the main point. The main point is that the petitioner has done extremely well in raising this in Parliament, and has done so successfully, with members of all parties pursuing it vigorously and continuing to do so between now and next May.

In light of what you have just said, convener, might we close this petition under rule 15.7 of standing orders on the basis that a grant of £750 is now available to all eligible undergraduate and postgraduate social work students to support them with costs incurred while on placements.

Secondly, additional funding, as you have pointed out, of up to £2,000 can be claimed by students for exceptional travel costs related to placements in, or students being resident in, remote and rural locations.

Also, the earnings threshold for postgraduate bursary eligibility has been increased and, finally, the postgraduate discretionary allowances have been streamlined.

In closing the petition, convener, perhaps, if members were agreed, we could point out to the petitioners that if, in the light of the experience of these new changes, the petitioners consider that the financial position is still inadequate, it would be open to them to challenge this new regime as being inadequate. For example, if there were cases in which someone in a remote location was not given access to the additional travel costs, that would be a legitimate area of challenge. That is just one example.

I am sympathetic to the other points that the petitioners make, but the Government’s response has been fairly substantial, given the overall scarce resources.

I very much support that. We could include in the letter the reference that Dr Coldwells makes to the apparent lack of action in this regard, his negative comments, and the petitioner’s observation that each health board has a controlled drug accountable officer, or CDAO, but that

“Strangely CDAO don’t seem to be accountable for their failure to follow the policy.”

That was an interesting remark, and I wonder whether the minister could be asked to comment on it. The issue has dragged on for a long time. As I pointed out when the petition was previously considered, it had taken three years for nothing very much to happen.

Provided that the Health, Social Care and Sport Committee is going to do that review, we should pass the petition to that committee, which will be better able to consider it.

I add, though, backing up what Ms Whitham has said, that this issue arises almost every day in our constituencies. It is of huge concern to many young people and their families, particularly their parents, waiting forever for nothing to happen. It is a huge source of tension, problems and difficulty, socially, for the families and children involved.

It is a very worthy petition that needs to be thoroughly examined and pursued, and the apparent lack of any inclination in the Scottish Government to do anything about it is quite baffling and inadequate.

I have tried to consider the papers carefully. I have concluded that we should seek to close this petition under rule 15.7 of the standing orders, primarily on the basis that surveyors are already subject to various requirements, including the need to have a complaint handling procedure in place and to offer independent third-party recourse for complaints. Also, the home report guidance is being updated to make the limitations of the single survey clearer to buyers and to provide information about other steps that buyers can take to assess the condition of the home they are considering buying.

In saying that, it is important to state something that is true but is perhaps not mentioned very much, which is that when someone buys a heritable property—typically a house or flat, a dwelling house—the system is caveat emptor. The buyer takes on the risks, and it is up to the buyer to decide whether or not the home report is sufficient. Very often, in practice—this happened in my day—one would look at the home report and decide that there were further investigations that required to be carried out, for example, into whether internal alterations to a property had been made with or without consent, or whether there was an extensive problem of infestation of dry or other forms of rot.

All those things have to be discussed by the buyer’s solicitor with the buyer, and the buyer’s solicitor owes legal duties. The RICS rules about what surveyors are bound to do are very clear: the surveyor must be chartered and that chartered surveyor must have professional indemnity. The chartered surveyor, in providing the home report, does not have a duty to provide a thorough, detailed, intrusive, incursive report, but only a report designed primarily for mortgage valuation. Having seen those reports myself, and worked with them, and having seen a home report recently, I would say it is a very limited document. Frankly, it spends more time setting out the exclusions of liability than it does describing the actual property. That may be a bit cynical, but that was true of the home report that I saw very recently.

I think that there is a much wider issue here. Possibly the petitioner’s complaint is an individual legal complaint that she may have to pursue against the RICS or the individual surveyor’s indemnifying insurers, and that would be a legal private case for her to pursue. In saying that, I am not passing any judgment. It is a possibility. However, given that the Scottish Government is carrying out a review in this area, there are not any magic solutions here.

The home report was brought in to replace the situation where there were five parties going for the same property and five different surveyors surveying the same property each time. That was regarded as an unnecessary expense and an unnecessary procedure, and that is the reason why the home reports were brought in. There is no perfect system, however, and caveat emptor is where it starts and, frankly, where it very often finishes. It is up to the individual to listen carefully to advice from solicitors.

I did not mean to give a conveyancing lecture here, convener, but because we are proposing to close a new petition, I thought it only courteous and respectful to the petitioner to set out the reasons why I do not think that this committee, at this stage in the parliamentary session, can do anything more, while recognising that the petitioner certainly has raised valid points, which I am quite sure will be reflected by many other people who were less than satisfied with the experience that they had. That is by no means new, convener, and if there were easy answers that everybody could be happy with, I am sure that they would have been discovered long ago.