Agriculture and Rural Communities (Scotland) Act 2024

Part 2 Support for agriculture, rural development and related matters

Power to provide support

6 Power to provide support

(1) The Scottish Ministers may provide support for or in connection with the purposes described in schedule 1.

(2) The Scottish Ministers may by regulations modify schedule 1 by—

(a) adding a purpose,

(b) amending the description of a purpose (including by defining a word or expression),

(c) removing a purpose.

(3) Regulations made under this section are subject to the negative procedure.

(4) In this Part, except where the context otherwise requires—

(a) a reference to support (other than a reference to the provision of support by a third party described in section 7) is to support provided under this section, and

(b) a reference to financial support is a reference to support under this section that is provided financially.

7 Funding third party support

(1) Without prejudice to the purposes described in schedule 1, support may be provided to—

(a) the maker or operator of a third party scheme in connection with the establishment or operation of that scheme (including in connection with the provision of support under that scheme),

(b) a person who otherwise provides support for or in connection with a purpose described in schedule 1.

(2) A “third party scheme” is a scheme for the provision of support (whether financially or otherwise) for or in connection with a purpose described in schedule 1, but which is not made by the Scottish Ministers.

General provision about support

8 Form of support and conditions

(1) Support may be provided—

(a) in such manner as the Scottish Ministers consider appropriate including, in particular, financial support by way of grant, loan or guarantee, and

(b) under or in accordance with a scheme established by regulations made under section 15(1), a scheme established administratively, or otherwise.

(2) Except as otherwise provided in regulations made under section 15(1), the Scottish Ministers may impose such conditions on the provision of support as they consider appropriate.

(3) The conditions that may be imposed may, in particular, include conditions requiring the repayment or otherwise making good of any financial support (with or without interest).

9 Guidance

(1) The Scottish Ministers may by regulations make provision in relation to guidance about support (including the guidance contained in the Code of Sustainable and Regenerative Agriculture (see section 29)).

(2) Provision under subsection (1) may, in particular, include provision—

(a) requiring that guidance on a particular scheme or purpose be laid before the Scottish Parliament and published,

(b) requiring regard to be had by particular persons to the guidance,

(c) specifying the extent to which compliance with guidance on a particular topic is relevant in determining whether a person has complied with a statutory duty or condition of support,

(d) specifying the admissibility or evidential value of the guidance in legal proceedings.

(3) Regulations under this section are subject to the negative procedure.

10 Delegation

(1) The Scottish Ministers may delegate functions relating to the providing of support to any other person.

(2) Functions delegated under subsection (1) may—

(a) include the giving of guidance, or

(b) permit the exercise of discretion in relation to a function.

(3) The delegation of functions under subsection (1) does not—

(a) affect the Scottish Ministers’ responsibility for the performance of the function, or

(b) prevent the Scottish Ministers from performing the function themselves.

11 Power to cap support and assistance

(1) The Scottish Ministers may by regulations—

(a) limit the overall amount of support or relevant assistance (or both) that a person may receive within a payment period (or periods),

(b) provide for the amount of support or relevant assistance (or both) that a person may receive in a payment period (or periods) to progressively reduce where the support exceeds a specified amount of support.

(2) Before making regulations under this section, the Scottish Ministers must consult such persons as they consider appropriate.

(3) Regulations under this section are subject to the affirmative procedure.

(4) In this section—

• “payment period” means any specified period relating to the payment of support,

• “relevant assistance” means financial assistance provided by the Scottish Ministers under or by virtue of another enactment (including, in particular, assimilated law governing the CAP direct payment schemes and assimilated direct CAP legislation) for a purpose similar to a purpose described in schedule 1,

• “specified” means specified in regulations under subsection (1).

12 Refusal or recovery of support where in the public interest

(1) The Scottish Ministers may (in accordance with any regulations made under subsection (2))—

(a) refuse to provide support if they consider that it is not in the public interest for a person to receive it, and

(b) in a case where the Scottish Ministers consider that it was not in the public interest to have provided support to a person, take such steps as they consider appropriate to recover it.

(2) The Scottish Ministers may by regulations make provision in connection with the exercise of their powers under subsection (1) including provision specifying—

(a) persons in respect of whom the powers may be exercised,

(b) circumstances in respect of which the powers may be exercised,

(c) matters that the Scottish Ministers must take into account when considering whether to exercise the powers,

(d) the manner and circumstances in which a person who has had support refused or recovered under subsection (1) may—

(i) have the Scottish Ministers review their decision to exercise the powers, or

(ii) appeal the decision.

(3) Before making regulations under this section, the Scottish Ministers must consult such persons as they consider likely to be affected by provisions in this section.

(4) Regulations under this section are subject to the negative procedure.

Intervention in agricultural markets

13 Exceptional market conditions: powers available to Scottish Ministers

(1) Subsection (2) applies during the period for which an exceptional market conditions declaration under section 14 has effect.

(2) The Scottish Ministers may provide, or agree to provide, financial support to agricultural producers in Scotland who have been, are being, or are likely to be, adversely affected by the exceptional market conditions described in the declaration.

(3) Nothing in this section affects any other powers that are available to the Scottish Ministers (including under assimilated direct legislation and assimilated direct CAP legislation) to provide financial support to agricultural producers.

(4) Financial support under subsection (2) may be provided by way of grant, loan or guarantee or in any other form.

(5) The financial support may be provided subject to such conditions as the Scottish Ministers consider appropriate.

(6) The conditions may, in particular, include conditions requiring the repayment or otherwise making good of any financial support (with or without interest).

(7) Nothing in subsection (1) or (2) prevents the Scottish Ministers from providing, or agreeing to provide, financial support under subsection (2)—

(a) after the end of the period for which an exceptional market conditions declaration has effect, but

(b) in response to an application made during that period.

14 Declaration relating to exceptional market conditions

(1) If the Scottish Ministers consider that there are exceptional market conditions, they may make and publish a declaration (“an exceptional market conditions declaration”) in accordance with this section.

(2) There are “exceptional market conditions” if—

(a) there is a severe disturbance in agricultural markets or a serious threat of a severe disturbance in agricultural markets, and

(b) the disturbance or threatened disturbance has, or is likely to have, a significant adverse effect on agricultural producers in Scotland.

(3) An exceptional market conditions declaration must—

(a) state that the Scottish Ministers consider that there are exceptional market conditions,

(b) describe the exceptional market conditions in question by specifying—

(i) the disturbance or threatened disturbance in agricultural markets,

(ii) any agricultural product which is or is likely to be affected by the disturbance or threatened disturbance,

(iii) the grounds for considering that the disturbance or threatened disturbance has, or is likely to have, a significant adverse effect on agricultural producers,

(c) describe the grounds for considering that the exceptional market conditions justify making the powers conferred by or referred to in section 13 available for use, and

(d) specify the date until which the powers conferred by or referred to in section 13(2) are available for use in relation to the exceptional market conditions.

(4) The date specified under subsection (3)(d) may not be later than the last day of the period of 3 months beginning with the day on which the exceptional market conditions declaration is published.

(5) An exceptional market conditions declaration has effect from the beginning of the day on which it is published until the end of the day specified under subsection (3)(d).

(6) The Scottish Ministers may revoke an exceptional market conditions declaration by making and publishing a declaration under this subsection stating that the exceptional market conditions declaration is revoked from the date specified in the declaration.

(7) Subsection (8) applies if, at any time during the period of 7 days ending with the day specified under subsection (3)(d) in an exceptional market conditions declaration that has effect under this section, the Scottish Ministers consider that there continue to be exceptional market conditions.

(8) The Scottish Ministers may extend the exceptional market conditions declaration by making and publishing a declaration under this subsection specifying—

(a) that the exceptional market conditions declaration is extended for a period (not exceeding 3 months) specified in the declaration, and

(b) that the powers conferred by or referred to in section 13(2) are available for use during that period.

(9) The fact that an exceptional market conditions declaration has expired or has been revoked does not prevent the Scottish Ministers from making and publishing another exceptional market conditions declaration relating in whole or part to the same exceptional market conditions.

(10) The Scottish Ministers must lay a copy of any declaration made and published under this section before the Scottish Parliament as soon as practicable after it is published.

(11) In this section and section 13, a reference to agricultural markets, agricultural producers or agricultural products includes a reference to horticultural markets, horticultural producers or horticultural products (as the case may be).

Administrative matters, eligibility and enforcement

15 Regulations about support

(1) The Scottish Ministers may by regulations make provision for or in connection with the provision of support or support for a particular purpose.

(2) Regulations under this section may, in particular, make provision about—

(a) eligibility criteria for receiving support (see section 16),

(b) payment entitlements (see section 17),

(c) the amount of support, including—

(i) how the amount of support is to be determined,

(ii) setting a minimum amount for a payment of support,

(iii) reducing the amount of payments of support in particular circumstances (other than those described in section 11),

(d) how support is to be paid or otherwise provided,

(e) conditions that may or must be imposed when providing support,

(f) checking, enforcing and monitoring support (see section 18),

(g) such administrative and procedural matters in connection with the provision of support as the Scottish Ministers consider appropriate, and

(h) the publication of information about support that is being or has been provided (see section 19).

(3) Before making regulations under this section, the Scottish Ministers must consult such persons as they consider likely to be interested in or affected by provisions in this section.

(4) Regulations under this section—

(a) are subject to the affirmative procedure if the regulations in question, in the opinion of the Scottish Ministers, would make significant provision, or

(b) otherwise, are subject to the negative procedure.

(5) For the purpose of subsection (4)(a), significant provision includes—

(a) establishing a scheme in respect of support for a particular purpose which will—

(i) have a significant number of potential recipients or have a significant impact on recipients,

(ii) affect a significant amount of land or have a significant impact on a particular type of land,

(iii) have a significant monetary value (as assessed by reference to the value of support generally),

(iv) create a criminal offence (see section 18), and

(b) making significant changes to an existing scheme of support that is, by reference to the matters in paragraph (a), a significant scheme.

16 Eligibility criteria for support

(1) Regulations under section 15(2)(a) may, in particular, make provision for or in connection with criteria for support by reference to—

(a) the activity which a person carries out,

(b) how a person carries out an activity, including whether the person carries out the activity personally or through other arrangements,

(c) a person’s characteristics or personal, financial or business circumstances (for example, a person commencing an agricultural activity for the first time or meeting a specific threshold for turnover from agricultural activity),

(d) the type or location of land on which a person carries out an activity,

(e) the amount of land on which a person carries out an activity, which may be set by reference to the type of activity (for example, horticulture), or the manner in which the land is occupied (for example, as a croft),

(f) the manner in which title to, or occupancy of, land on which an activity is carried out is registered or recorded (for example, if the land is registered in the Land Register of Scotland),

(g) the ability of grazing committees and co-operatives to claim support as a collective for joint projects separate to individual support.

(2) In this section “grazing committee” has the meaning given by section 47 of the Crofters (Scotland) Act 1993.

17 Payment entitlements

(1) Regulations under section 15(2)(b) may, in particular, make provision for or in connection with—

(a) the determination of the number of payment entitlements available,

(b) the allocation of payment entitlements,

(c) the value of payment entitlements,

(d) the transfer of payment entitlements (whether or not for a consideration),

(e) the Scottish Ministers holding payment entitlements for allocation to specified categories of persons,

(f) the surrender of payment entitlements to, or the reclamation or cancelling of payment entitlements by, the Scottish Ministers,

(g) creating and maintaining a register of persons allocated payment entitlements,

(h) the charging of fees of such amount as may be specified for making changes to the register necessitated by the transfer of entitlements.

(2) In this Part, a “payment entitlement” is the entitlement of a person to be provided an amount of support for a particular purpose (subject to meeting any eligibility criteria and conditions or limits on payments).

18 Checking, enforcing and monitoring support

(1) Regulations under section 15(2)(f) may, in particular, make provision for or in connection with—

(a) checking whether eligibility criteria for support are met,

(b) the consequences where support has been provided without eligibility criteria having been met,

(c) enforcing compliance with any conditions to which support is or has been provided,

(d) monitoring the extent to which the purpose of providing support has been achieved,

(e) the creation of offences and investigation of suspected offences in connection with applications for, or the provision of support.

(2) Without limit to the generality of subsection (1), such provision may include provision—

(a) about the provision of information,

(b) conferring powers of entry,

(c) conferring powers of inspection, search and seizure,

(d) about the process for determining whether eligibility criteria for, or conditions applying to, the provision of support are met,

(e) about record keeping,

(f) about the recovery or making good of all or any part of support (with or without interest),

(g) about withholding support, in whole or in part,

(h) about steps to be taken, by a person to whom support is or has been provided, to rectify any breach of a condition applicable to that support,

(i) about imposing monetary penalties (including penalties calculated by reference to the value of any support),

(j) for recovery of amounts due in respect of monetary penalties,

(k) prohibiting a person from receiving support, or support for a particular purpose, for a specified period or until specified conditions are satisfied,

(l) about how decisions are to be reviewed and appeals,

(m) conferring functions (including functions involving the exercise of a discretion) on a person.

(3) Regulations made by virtue of this section may not authorise entry to a private dwelling without a warrant issued by a summary sheriff or sheriff.

(4) The provision which may be made by virtue of subsection (2)(f) includes provision for interest on any recoverable amount to be payable from such day (whether the day on which the financial assistance in question was given or a later day) as may be specified in the regulations.

(5) Regulations made by virtue of subsection (1)(e) creating an offence must provide for the maximum penalty for the offence to be—

(a) on conviction on indictment, a fine, or

(b) on summary conviction, a fine not exceeding the statutory maximum.

(6) In this section, “specified” means specified in, or determined under, regulations made by virtue of subsection (1).

19 Publication of information about support

Regulations under section 15(2)(h) may, in particular, make provision—

(a) imposing a requirement on any person (including the Scottish Ministers),

(b) requiring that the information to be published includes information about—

(i) the recipient of any support provided (and, in such circumstances as may be specified in the regulations, any person who owns or controls the recipient),

(ii) the amount of any support provided,

(iii) the purposes of any support provided.

20 Processing of information

(1) The Scottish Ministers may by regulations make provision about the processing of information for and in connection with—

(a) the provision of—

(i) support under this Act, or

(ii) other relevant assistance,

(b) the carrying out of functions in relation to continuing professional development activities under this Act.

(2) Regulations under this section may, in particular—

(a) require a person to produce information in such form and within such reasonable times as may be specified,

(b) authorise the Scottish Ministers (and any persons acting on their behalf) to share information with—

(i) a public authority for the purpose of enabling or assisting the authority (and any persons acting on their behalf) to exercise any functions,

(ii) such other persons or descriptions of persons, in such circumstances as may be specified.

(3) A duty or power to disclose or use information which is imposed or conferred by regulations under subsection (1) may not operate to require or authorise the disclosure or use of information which would contravene the data protection legislation (but the duty or power is to be taken into account in determining whether the disclosure or use would contravene that legislation).

(4) In this section—

• “the data protection legislation” has the meaning given by section 3(9) of the Data Protection Act 2018,

• “processing” is to be construed in accordance with section 3(4) of the Data Protection Act 2018,

• “public authority” means a public authority in any part of the United Kingdom,

• “relevant assistance” means financial assistance provided by the Scottish Ministers under or by virtue of another enactment (including, in particular, assimilated law governing the CAP direct payment schemes and assimilated direct CAP legislation) for a purpose similar to a purpose described in schedule 1,

• “specified” means specified in, or determined under, regulations under subsection (1).

(5) Regulations under this section are subject to the negative procedure.

21 Monitoring and evaluation of schemes

(1) The Scottish Ministers must, in relation to each support scheme—

(a) monitor the impact of the scheme, and

(b) prepare one or more reports on the impact and effectiveness of the scheme (having had regard to the findings of that monitoring).

(2) The Scottish Ministers may, in relation to any support provided otherwise than under a support scheme or the provision of other relevant assistance—

(a) monitor the impact of the support or assistance, and

(b) prepare one or more reports on the impact and effectiveness of the support or assistance (having had regard to the findings of that monitoring).

(3) Monitoring under subsection (1) or (2) must be carried out in such manner and for such period or periods as the Scottish Ministers consider appropriate for the scheme or other support in question.

(4) The number and frequency of reports prepared under subsection (1) or (2) are to be as the Scottish Ministers consider appropriate for the scheme or other support in question.

(5) The Scottish Ministers must, after preparing a report under this section—

(a) lay a copy of the report before the Scottish Parliament, and

(b) publish the report.