- The Deputy Presiding Officer (John Scott):
The next item of business is a debate on motion S4M-06798, in the name of Paul Wheelhouse, on the Crofting (Amendment) (Scotland) Bill.
I invite the minister to speak for a generous 13 minutes.
- The Minister for Environment and Climate Change (Paul Wheelhouse):
It is a well-known fact that crofting tenure forms an important part of our environmental, cultural and social heritage and that crofting traditions are close to the hearts of so many. As a consequence, the topic of crofting often inspires emotion and debate, and the Crofting (Amendment) (Scotland) Bill is no exception, even though there is general agreement on its purpose.
Those involved in crofting will know that the Crofters (Scotland) Act 1993 has already been amended by the Crofting Reform etc Act 2007 and the Crofting Reform (Scotland) Act 2010. We are now seeking to amend it further through the Crofting (Amendment) (Scotland) Bill, but for very good reasons.
I am sure that those involved in the introduction of the 2010 act did not imagine for one moment that we would be here today addressing an unintended consequence of it, but crofting legislation is renowned for its complexities—as minister with responsibility for crofting, I can certainly vouch for that.
As many members know, the issue is with the provisions allowing crofters to apply to decroft land. The 2010 act was intended to allow decrofting by both tenant and owner-occupier crofters, but legal advice received by the Crofting Commission said that, in fact, the act does not provide for decrofting by owner-occupier crofters. Therefore, on 25 February this year, the commission announced that it could not accept any further decrofting applications from owner-occupier crofters.
When the flaw in the legislation was identified, there was widespread support for solving the problem, and solving it quickly. The Scottish Government listened to the concerns raised. It then took swift action to bring forward this bill to ensure, first, that owner-occupier crofters could once again apply to the Crofting Commission to decroft their land and, secondly, that the direct impact on those affected would be addressed as quickly as possible.
As I indicated to Parliament on 28 March this year, there are known examples of people being negatively affected by the flaw in the legislation. Some are unable to start building their houses until the land is decrofted, and deadlines for completion are approaching because of time-limited planning consent. Others are unable to decroft to increase the size of their house site to provide sufficient garden ground. A young crofter is unable to proceed with acquiring part of an owner-occupier crofter’s croft because of the uncertainty around being able to decroft part of his new croft to build a house. A young crofting couple who are planning to start a family are unable to decroft a house site to sell in order to finance a larger house while remaining on the original croft. Those are just a few examples of real people being directly affected by this decrofting issue.
This bill, once enacted, will provide a solution for those people and many more in similar circumstances. That solution is required urgently to ensure that owner-occupier crofters are given similar rights and are treated in a similar way to tenant crofters and landlords.
Before I go into the detail of the bill, I welcome the Rural Affairs, Climate Change and Environment Committee’s stage 1 report, which was published on Friday 31 May. I congratulate the committee on its thorough consideration of all the issues raised. Bringing forward legislation quickly does not mean that parliamentary scrutiny should be compromised. In fact, I place enormous importance on both stakeholder engagement and parliamentary scrutiny. For that reason, in a moment, I will cover the main issues raised in the committee’s stage 1 report.
The Scottish Government has taken time carefully to consider the best way forward and has produced a bill that meets the key aim of allowing owner-occupier crofters to apply to the Crofting Commission to decroft. That aim attracted widespread support during stage 1. The original intention in the 2010 act was to align decrofting by owner-occupier crofters with decrofting by landlords, which comes under the vacant croft provisions in section 23 of the 1993 act. However, that intention does not work because of section 23(10) of the 1993 act, which provides that, if a croft is occupied by an owner-occupier crofter, it is not vacant. The existing legislation does not work as intended.
The bill will remove decrofting by owner-occupier crofters from the vacant croft provisions and insert new stand-alone sections 24A to 24D into the 1993 act. Some people have suggested retaining the link between owner-occupier decrofting and the vacant croft provisions, even when the croft is not vacant. However, in the Scottish Government’s opinion, the new provisions that we propose will provide a greater degree of clarity and legal certainty.
The bill sets out what the Crofting Commission can do when it receives an application to decroft. The commission can of course grant or refuse the decrofting application. However, if the Crofting Commission is already taking action against the applicant for a breach of crofting duty, the bill provides for the commission not to consider the decrofting application in the meantime. That mirrors the equivalent rules for landlords of vacant crofts.
Section 25 of the 1993 act sets out the matters that the commission must take into account when determining a decrofting application. The bill will apply most of section 25 to owner-occupier crofters in as similar as possible a way to how it applies to tenant crofters and landlords. However, the bill purposely leaves out the provisions in section 25 that relate only to tenants, such as the provisions relating to a crofter’s right to buy.
The bill will also extend to owner-occupier crofters the existing right of a tenant crofter to decroft the site of the dwelling-house, where they have not already decrofted a house site. There was of course a question over what to do with the 159 decrofting directions that were already issued by the commission and—I can update Parliament on this—the 44 applications that are currently held in abeyance. The observant will have noticed that the figures have changed slightly from the earlier announcement in Parliament on 28 March—the number of outstanding applications has reduced from 50 to 44 as a result of checks undertaken by the Crofting Commission at our request, which have verified that six of the outstanding applications did not in fact relate to owner-occupier crofters.
I turn now to the issue of retrospection. In the bill, the Scottish Government has proposed retrospective provisions that will allow the legislation to apply to cases from 1 October 2011, when the definition of owner-occupier crofter was introduced. The provisions will place those involved in the 159 cases where they expected to be—and, crucially, where Parliament intended them to be—and will allow the 44 outstanding applications to be fully processed as soon as the bill comes into force.
The bill will also make consequential modifications to the 1993 and 2010 acts, as a result of new sections 24A to 24D, mainly by adding cross-references to the new provisions. The consequential modifications will ensure that the new provisions work as intended alongside the existing legislation. That is an important safeguard.
- Tavish Scott (Shetland Islands) (LD):
Does not this whole issue prove that, as the Rural Affairs, Climate Change and Environment Committee has suggested, there is a desperate need for consolidation of all crofting legislation into one act?
- Paul Wheelhouse:
I will deal with that later in my speech, but I certainly acknowledge the member’s point. The committee makes the fair point that crofting law is horrendously complex—in some ways, it is impenetrable to the uninitiated—and there is clearly a case for looking at some of the problems that we know currently exist. However, I hope that I have set out today the rationale for keeping the bill tightly defined to ensure that we get a quick solution for the benefit of constituents in Mr Scott’s constituency and elsewhere.
As I said, the consequential modifications will ensure that the new provisions work as intended. They will also ensure that the crofting register provisions in the 2010 act will apply to decrofting applications submitted by owner-occupier crofters in the same way as they apply to other decrofting applications. The consequential and retrospective provisions were largely welcomed at stage 1, and I welcome the committee’s support for them in its stage 1 report.
Lastly, it has been suggested that some people might have intended to appeal against a decrofting decision but decided not to do so as a result of the Crofting Commission’s announcement in February. We have therefore included a right of appeal for applications that were determined within the 42 days before the commission’s announcement, which is in line with the normal appeal arrangements. Again, I note that the committee in its report welcomes and supports that provision.
I turn to some of the concerns that were raised at stage 1. Concern was expressed that passing the right to decroft the site of a dwelling-house from one owner-occupier crofter to another might lead to speculative development. In fact, that is already the position with tenant crofters and it does not appear to have created any issues. However, the matter can be considered further if it becomes a problem.
Some have criticised the fundamental drafting of the bill. It is only natural that there will be differences of opinion on that. Given the range of views that were expressed in evidence, I have some sympathy with the committee’s position that it is difficult to give a definitive view on the validity of some of the drafting concerns that have been raised. As I said to the committee on 22 May, there is more than one way to draft a bill, and length is not the only consideration.
- Alex Fergusson (Galloway and West Dumfries) (Con):
Does the minister accept that several of the concerns about drafting were raised by lawyers who are eminent in the field of crofting law—I admire them for being so—and that there are serious issues here? Will his Government look at them seriously before stage 2?
- Paul Wheelhouse:
I am just about to come on to that. If I do not address Mr Fergusson’s point, I will let him come back in later.
Some stakeholders have indeed suggested alternative drafting that would be shorter and might, perhaps, deliver the policy intention. However, with the greatest of respect to the eminent lawyers that Mr Fergusson mentioned, “perhaps” is not good enough. We have to be clear. The bill addresses a flaw in the legislation. That being the case, we have to be sure that what we do will address the key issue in respect of decrofting and provide the same treatment of owner-occupiers as is provided for tenants. That is why the Government’s bill is drafted in the way that it is.
Our view that the bill will resolve the issue is supported by others. During the committee’s stakeholder evidence session, Sir Crispin Agnew said:
“I think that the bill will solve the particular problem by making it clear that the Crofting Commission can decroft owner-occupier crofts.”
During the same session, Derek Flyn of the Scottish Crofting Federation said that legislation is needed and that the bill appears to answer that need. We heard the Crofting Commission’s view that
“the bill addresses and solves the problem”.
There was also support from others including Scottish Land & Estates and the National Farmers Union Scotland, which recognises the need for legislation to deal with the problem quickly. However, I recognise the point that Mr Fergusson makes. It is perhaps something that the committee will come back to.
On consultation, some have questioned whether there was sufficient time for proper consideration of the bill. In the circumstances that we faced, the Scottish Government had to strike a balance between dealing with the issue urgently while carefully considering the options and ensuring that key stakeholders had the opportunity to contribute. Our stakeholder consultation was very short indeed compared with normal procedures, but that was entirely due to the urgency of the issue.
We heard at stage 1 that NFU Scotland considers that it
“had ample opportunity to respond”
“the consultation with regard to the draft bill has been fine.”—[Official Report, Rural Affairs, Climate Change and Environment Committee, 15 May 2013; c 2200, 2194, 2203.]
The Crofting Commission’s view was that the consultation had worked, as the problem itself is “very defined”. I therefore believe that the right level of consultation was applied to the bill under the circumstances and given the tight focus of the bill.
I note that the committee welcomed the Scottish Government’s attempts to seek stakeholders’ views once the problem had been identified and once the bill had been published. I also note the committee’s view on public consultation on any further changes to crofting law.
On the individual cases of crofters who are affected by the inability to decroft, I note the committee’s recommendation that the Crofting Commission should process the outstanding applications as swiftly as possible, and that should apply also to any applications that it has not been possible to submit in the interim. As I said to the committee on 22 May, section 6 provides for the legislation to be effective immediately following royal assent. That will enable the commission to process the 44 outstanding applications, and any newly submitted applications, as early as possible.
I recognise that a number of issues have been raised that are outwith the scope of the bill. I also recognise the need, as indicated by the committee in its stage 1 report, to address those other issues in the future, and I assure members that they will be addressed. I give an undertaking that, subject to the bill’s parliamentary passage, once it has been enacted, my officials will investigate, in consultation with stakeholders, what the best method might be for dealing with the outstanding issues. Depending on the outcome of those investigations, the Scottish Government will consider what further legislation might be required as we develop our future legislative programme.
However, I encourage members to focus on the issues that are relevant for this bill and to work towards a mutually agreeable way forward. That will ensure once and for all that owner-occupier crofters can apply to decroft their land. The scope of the bill is deliberately tightly focused on owner-occupier decrofting. Any deviation from that would fail to respect the expedited approach agreed for it.
As always, I will leave further scrutiny of the bill to the Scottish Parliament. I have no doubt that the committee and the Parliament as a whole will continue to apply the high standard of scrutiny of legislation to which we are accustomed, irrespective of the tight timescales that apply to the bill.
I am grateful to all who have contributed to bringing us this far. That includes stakeholders, who assisted in the early stages by providing information, those who gave evidence to the committee and, not least, the committee and its clerks. I thank my own officials for their hard work.
I look forward to continuing to work with all parties during the remaining stages of the bill. I hope that the committee will be reassured by my confirmation that appropriate consideration is being given to all views expressed on the bill in advance of stage 2 next week. That includes, of course, the committee’s stage 1 report.
The principles of the bill will deliver its intended purpose. I commend the bill and the committee’s report to the Parliament.
That the Parliament agrees to the general principles of the Crofting (Amendment) (Scotland) Bill.
- Rob Gibson (Caithness, Sutherland and Ross) (SNP):
I speak on behalf of the committee. Crofts, as it is said, are small pieces of land surrounded by thick, prickly hedges of legislation. That has never seemed more appropriate than in scrutinising this bill, which the Scottish Government introduced under an expedited process to correct an anomaly that was uncovered in the 2010 act, which itself amended the 1993 act.
The 2010 act intended to put the newly created category of owner-occupier crofters on an equal footing with tenant crofters and landlords and, as a consequence, to allow such crofters to apply to the Crofting Commission to decroft their land. The relevant provisions of the act were brought into force in October 2011, and the Crofting Commission began to accept and process decrofting applications from owner-occupier crofters. All was well—or so it appeared.
Some 159 applications had been considered when it was identified that there was, in fact, no provision in the law for such decrofting applications to be considered. Following legal advice, the commission suspended consideration of applications from owner-occupier crofters until the situation was resolved.
We now know that 44 applications had been made but not decided upon when that happened. Therefore, 44 or more crofters are currently waiting on decisions that would allow them to use their land for suitable purposes. The suspension of the applications took place back in February, so now more owner-occupier crofters might be waiting for the matter to be resolved so that they can make applications.
- Paul Wheelhouse:
Given the expedited process, it would perhaps help to clarify that we understand that 31 additional applications have been processed but returned to the applicants.
- Rob Gibson:
That is useful to know.
The law must reflect the policy intention of the 2010 act, which was that all crofters should be able to decroft land, subject to the safeguards that the act introduced to protect croft land, ensure the sustainability of crofting and stop speculation.
Most of the evidence that we received agreed that the problem needed to be addressed. Admittedly, there was some disagreement about whether the current legislation could be read as already permitting such decrofting applications, but most agreed that the bill was the best way to settle the issue beyond doubt.
The committee had some regret about the very short time for written views to be sent to it. We received a significant number of responses in the week or so during which the opportunity was available. For that reason, we strongly recommended that the Government consider carefully all the evidence that was sent to the committee ahead of this debate.
All who gave evidence to us agreed that the bill would achieve its desired outcome. That is a key point to remember during the debate. Is there a consensus that a problem exists? Yes. Is there consensus that the bill will fix that problem? Yes.
The bill also ensures that its provisions will be applied retrospectively, as if it had been in force in October 2011, as the 2010 act intended. In this instance, the committee is supportive of applying provisions retrospectively, as that will ensure that all owner-occupier crofters have been, and will be, treated fairly and appropriately.
The bill will also ensure that the appeals process that is available following the Crofting Commission giving a decrofting direction is applied fairly to those who have made applications but who have yet to receive a decision. I am sure that that issue will be raised repeatedly in the debate, but we should realise that it is important to quite a number of people, which is why we are taking it so seriously.
More thickets and brambles awaited us. Lawyers who are experts in crofting law said that the bill was unnecessarily complex and that, in places, it required amendment to avoid further difficulties with legal interpretation in the future. We strongly urge the Government to consider those points carefully in determining whether amendments are needed at stage 2 to ensure that the bill is clear and competent.
Additional issues were raised about the definition of what makes an owner-occupier crofter, as opposed to the owner-occupier of a croft, and how multiple owners of distinct parts of the same croft can proceed if all of them do not agree on one owner-occupier seeking to decroft their piece of that land. Those issues stem from the pre-devolution 1993 act. Because of the expedited process, although the issues are listed in our stage 1 report, there was no examination of how to resolve them.
- Tavish Scott:
I entirely agree with Mr Gibson’s conclusion on the issues that are still outstanding. Does his committee have any plans to have another look at those matters and to provide advice on how we could deal with them?
- Rob Gibson:
In its report, I think that the committee was minded to say that we should do that, although, given the complexity of the issues, we might have to hold two meetings a week in order to do so, and I am not sure whether the parliamentary authorities would allow us to do that.
The committee asked the Scottish Government how it would address the issues and to inform us of how it intended to proceed. Would any changes to legislation be made in primary or secondary legislation? Would use be made of powers in the Crofting Reform (Scotland) Act 2010 or the Public Services Reform (Scotland) Act 2010? We recommended the adoption of a clear timeframe.
We heard in evidence that the current crofting law was “a mess” and “a shambles” or, as we Gaels would say, a bit of a boorach. Calls were made for the Scottish Government to hold an urgent review of it. Several crofting lawyers told the committee about their difficulties in interpreting the law for their clients. The fact that we have had layer upon layer of legislation has made crofting law overly complex and impenetrable, as the minister mentioned. How can we expect crofters and other members of the public to understand it? The Scottish Government must respond to those concerns.
Some witnesses called for a consolidation of the law, but that would not address the issues of simplification, comprehension and consistency. What might be required for crofting law is codification—a restating of the policy, but in revised and simplified terms. That will take time and we will have to plan for it.
The committee calls on the Scottish Government to indicate how it intends to address those criticisms. Although it recommends that the general principles of the bill be supported by Parliament, it believes that crofting legislation—the current state of which it heard being described as “a mess” and “a shambles”—needs to be urgently reviewed. Those were the sentiments that were expressed to us. It is now up to all of us—the Scottish Government and the Parliament—to listen and to act.
- Claudia Beamish (South Scotland) (Lab):
Scottish Labour will support the Crofting (Amendment) (Scotland) Bill at stage 1.
To be honest, I am one of those people who did not know a great deal about crofting before the bill’s introduction, unlike, I am glad to say, many of the committee’s members. I have since discovered that there are about 17,700 crofts in Scotland, mainly in the Highlands and Islands, and that around 33,000 people live in crofting households.
The Scottish Government website reminds us:
“Crofting plays a vital role in maintaining the population in remote rural areas, it provides a secure base for the development of small businesses and maintains and supports a range of unique habitats.”
In 2010, the Scottish Government issued a press release that stated:
“The Scottish Parliament has passed the Government’s Crofting Reform (Scotland) Bill which aims to tackle absenteeism, neglect and speculation and protect crofting for future generations.”
I found that an interesting quote.
Our committee is optimistic, in spite of the complexities involved, that the bill, if passed, will rectify the problem that is faced by those who have been affected by the flaw in the Crofting Reform (Scotland) Act 2010 in relation to owner-occupier crofters and the decrofting of land.
I add my voice to the comments that have already been made about the bill by our convener, Rob Gibson, and by the minister. It is important that the bill goes through an expedited process in order to end the state of limbo that has been imposed. The minister highlighted many of the reasons why that is very important for the people who are affected. However, that means that the challenge for the committee in analysing a complex range of legal views in evidence on potential amendments to the bill will be time-truncated. It was helpful for the minister to have outlined a response to our report already. I thank him for that—I am sure that the pressure is on the minister, too.
I will highlight two of the committee’s recommendations, which, together, indicate the committee’s agreed position clearly and inform the Parliament where we think we are in the determination to get things right in relation to what happens next—especially in view of Rob Gibson’s remarks about thickets and brambles.
The stage 1 report states:
“The Committee notes the criticism of the drafting of the Bill, particularly by those who will be left to interpret and advise on the law. The Committee is not expert in the legal detail and potential inconsistencies within crofting law and it is therefore difficult for the Committee to give a definitive view at this stage on the validity of some of the concerns raised.”
I identify myself strongly with that paragraph of our recommendations.
The report continues:
“It is clear to the Committee that there are concerns which require to be considered. The Committee strongly recommends that the Scottish Government give appropriate consideration to the evidence submitted to the Committee with a view to determining whether any of the issues raised require to be addressed by amending the Bill at Stage 2”
or stage 3.
As the minister acknowledged, there are specific concerns about the drafting of section 1 in relation to the definition of “decrofting direction”. Our committee recommends
“that the Scottish Government gives careful consideration to these specific issues ahead of Stage 2.”
I appreciate the challenges that that involves, but I would hope that it is possible.
As the Aquaculture and Fisheries (Scotland) Bill progressed, there was a lack of opportunity for robust parliamentary scrutiny of evidence from stakeholders on Scottish Government amendments at stage 3. That put Scottish Labour and some other parties in the somewhat difficult position of feeling obliged to abstain on those amendments at stage 3. That was in spite of there being agreement in principle with the amendments.
Scottish Labour is clear that, in the case of the Crofting (Amendment) (Scotland) Bill, it is even more vital for the Scottish Government amendments to be available for consideration at stage 2 if possible. I appreciate that there are pressures of time on the minister, but it would be extremely helpful.
The issue of retrospection has been raised by both the minister and our convener. As a clear-cut group of people have been affected since the current provisions came into force in October 2011, it is very important that they are allowed to decroft, just as owner-occupier crofters must be in the future.
The committee calls for swift processing of the 44 cases that have been put on hold and of any that are not put into the system by the Crofting Commission, if the bill becomes an act. The minister has committed to that today, which is very helpful.
I will make some remarks about the future. That is perhaps presumptuous, as I am an outsider to the crofting counties and a newcomer to the complexities of crofting law, but as an MSP who, along with other members from throughout the chamber, is committed to ensuring a vibrant future for crofting, I hope that the perceptions of an outsider—albeit a rural dweller—might be of some use.
From my experience, living in South Scotland and supporting my constituents in facing their challenges, I am keenly aware of the difficulties that rural dwelling can bring and of the isolation that can come with it. That includes difficulties with access to work, services, education and leisure.
The Scottish Government’s website tells us:
“Crofters may benefit from conventional agricultural and environmental schemes and from EC funded programmes. The Scottish Government provides specific support to crofting counties worth around ... £7 million”
a year through schemes such as the crofting cattle improvement scheme. The website says that that scheme
“is open to groups of at least 2 crofters ... and provides good quality, high health bulls in areas where it is impractical to keep bulls and over winter them and where no alternative hiring facility exists.”
Scottish Labour is clear that it is right for a range of support to be specifically targeted at groups of crofters and, indeed, individual crofters.
There are enough challenges for crofters without their being unnecessarily pressurised by the complexities of crofting law. That can occur when legal changes need to be made, for example so that people can build another house for the next generation, develop small-scale renewable energy facilities or diversify in some other way. There is an obligation on members across the chamber to grapple with how best to proceed.
If we look at decrofting alone, we will see that there are other issues of significance that will not be dealt with in the bill. As we said in our report, the committee believes that that is right in view of the lack of time for consultation, among other things. It is important that there is an opportunity for consultation on issues, foremost among which are
“The definition of what legally constitutes an owner-occupier crofter, and issues facing multiple owners of distinct parts of the same croft”.
The minister’s agreement to the committee’s recommendations that
“the Scottish Government reviews all of the issues raised with the Committee”
“the Scottish Government identifies a clear timeframe for the review and provides the Committee with progress updates on this work once it is underway”—
the convener of the committee, Rob Gibson, highlighted that issue—
The committee’s discussion about how best to move forward on the complexities and the opaque and—to use the minister’s word—sometimes “impenetrable” nature of crofting law more generally led to our comment that
“Consolidation would place all of the law in one place, to make it easier to access, but not necessarily to understand. What may also require consideration is codification of the law, i.e. restating the policy in revised, simplified, terms.”
We discussed that in the committee. It is a major challenge for all of us in the Parliament, particularly those of us who have not yet experienced the complexities of crofting law but perhaps also for those who have. We owe it to the future of the crofting communities to meet that challenge.
The committee of inquiry on crofting reported in 2008, and the Scottish Government set out five key principles that are central to securing the future of crofting. Those were:
“Maintaining and increasing the amount of land held in crofting tenure”;
“Ensuring that land in crofting tenure is put to productive use”;
“Ensuring that housing in the crofting counties makes a full contribution to the local economy”;
“Giving more power to local people to determine their own futures”;
“Assisting young people and new entrants into crofting.”
Ensuring that crofting law is better law will help to progress many of those principles more easily, although there are many other ways in which they can be progressed. We must rise to the challenge as parliamentarians.
- The Deputy Presiding Officer:
I call Alex Fergusson. You have up to eight minutes.
- Alex Fergusson (Galloway and West Dumfries) (Con):
Thank you, Presiding Officer. The time available seems to be increasing by the second.
I am eternally grateful that I am taking part in the debate early, because I suspect that a high degree of duplication is inevitable in debating a narrowly focused amending bill. I suspect that every member will, in effect, try to find a different way of saying essentially the same thing. That is not a criticism, because I think that it is almost impossible to do otherwise in such a debate.
It probably says almost everything that we need to know about crofting law that, during the previous session of Parliament, no one spotted the anomaly that arose out of the Crofting Reform (Scotland) Act 2010 while it was undergoing its due parliamentary scrutiny. That act introduced the category of owner-occupier crofters into the Crofters (Scotland) Act 1993. The anomaly or unintended consequence of the legislation is that owner-occupier crofters are not permitted to apply to the Crofting Commission to decroft the croft unless the croft in question is vacant. That sentence alone summarises quite accurately the complexity of the law.
We on the Conservative benches will certainly support any bill that is designed to sort out the problem. This short and focused bill is designed to do just that and no more—and yet, if the evidence that the committee received is anything to go by, even that seems to have given rise to a lengthy debate and even some controversy among those who inhabit the strange world of crofting legislation.
As was discussed earlier, eminent lawyers, all of whom are experts on crofting law, were unable to agree on even such an apparently simple question as whether a bill is required to sort out the problem. Some say that it is, while others contend that the issue could just as easily be addressed through subordinate legislation. To be totally honest, I do not know and, frankly, if the bill really sorts out the problem—as most agree that it will—I do not care, either. The fact is that we created a problem and we need to address it. We commend the minister’s intention to do so quickly and effectively.
Given past experience, which suggests strongly that it is virtually impossible to pass any law in crofting without giving rise to several other issues, I am willing to bet that the bill if passed—as I am sure it will be—will not be the end of the matter. Already, the crofting lawyer Brian Inkster has identified and highlighted the issue of multi-ownership of crofts, a subject that I think was first raised in the Parliament by my colleague Jamie McGrigor.
The number of people who are affected by that issue has been identified to the committee as around 700. As Brian Inkster puts it in his blog,
“there we have it. There are 700 owner-occupiers compared to say 3,500 owner-occupier crofters. Thus, due to the interpretation put on the Crofting Reform (Scotland) Act 2010 by the Crofting Commission, one sixth of owner-occupiers (if for present purposes we take it that owner-occupier crofters are a sub-set of owner-occupiers) potentially cannot decroft land they own. Furthermore, they still will not be able to following the enactment of the Crofting (Amendment) (Scotland) Bill”—
the bill that we are debating this afternoon—
“which, as currently drafted, addresses only decrofting by owner-occupier crofters and not decrofting by owner-occupiers who are not owner-occupier crofters.”
If I may say so, that is another example of the complexity of the legislation. In anyone’s language—even the almost incomprehensible language of crofting law—one sixth of anything is a significant proportion. We should not take any comfort from the fact that, in trying to address the one small and focused problem that the bill seeks to address, we will probably fail to address several others.
That really is the crux of the debate. No one questions the honest intention of the bill to fix a problem that we created and that no one picked up at the time. Yet in the all-too-brief time that the committee has had to get our heads round the issue, it has become obvious that crofting law is a very sick animal indeed and one that is in urgent need of major surgical operation, rather than simply more and more bits of sticking plaster to try to fix the wound, as Tavish Scott said in his earlier intervention.
One day in the not-too-distant future, a Scottish Government will have to grasp this thistle, pull it out by the roots and start all over again. I am immensely encouraged by the minister’s hint in his opening remarks that the Government will consider doing exactly that, or at least start that process. All of us on the committee would welcome that.
At one stage of the committee’s evidence gathering, I described crofting law as being like the Hydra, the mythical multiheaded serpent that grew two heads every time one was cut off. In yet another Brian Inkster blog—as I am sure most members know, there are many of them—he described one category of crofter as aliens. Crofting and crofting law have therefore attracted descriptions ranging from the ancient mythology of history to the futuristic world of science fiction. Again, that says everything. Crofting law is a monster that was created in the past, and it will exist long into the future unless it is effectively destroyed and replaced.
In mythological times, it was Heracles who overcame the Hydra, although he needed a bit of help from a friend. With the greatest of respect, I think that the minister will need more than one friend if he is to be the Heracles who condemns this particular Hydra to the mists of time. We will of course support the bill at stage 1. I wish that I could say that I was looking forward to stage 2, but I am not entirely sure that I am.
- Graeme Dey (Angus South) (SNP):
During one of the Rural Affairs, Climate Change and Environment Committee’s evidence sessions on the bill, Alex Fergusson confessed to being a complete layman in crofting legislation. Given Mr Fergusson’s experience in the Parliament and on rural matters, I was not sure quite where that left me. As an east coast of Scotland resident all my days, I have had little contact with crofting, so I came into the process with minimal understanding of the legislation that covers the area.
I thought that my work as a member of the committee that scrutinised the bill would enable me to develop a clear understanding of what crofting legislation entails. I am sad to say that that was not the case. The more that I have learned, the more confused—perhaps it is more accurate to say “bemused”—I have become.
Courtesy of the head shaking that I witnessed among MSP colleagues on the committee, I am reassured that my confusion is due not to my being slow on the uptake but to the regime under which our crofters operate and its associated definitions being so confusing as to be almost impenetrable for anyone other than the most skilled specialist legal brains. Even for those legal brains, it seems that the law is open to interpretation.
If any member doubts what I said about the complexity of the issue, I draw their attention to the evidence that Derek Flyn, from the Scottish Crofting Federation, gave to the committee on the need for the bill in response to the suggestion that it was not needed:
“The point is that owner-occupiers are not entitled to occupy their crofts, which can therefore be held to be vacant, and they can be asked to take tenants. However, owner-occupier crofters are entitled to occupy their crofts and must intimate to the commission the fact that they are owner-occupier crofters. Instead of their being persons who have to give notice, they are persons who give notice as owner-occupiers as well as intimating the fact that they are owner-occupier crofters.”—[Official Report, Rural Affairs, Climate Change and Environment Committee, 15 May 2013; c 2191-2.]
Members of a certain age might remember the hit United States comedy, “Soap”, the scene-setting preamble for each episode of which concluded with the words, “Confused? You will be.” Such a phrase might reasonably preface crofting legislation. I acknowledge that Mr Flyn had the good grace to admit that the issue is complicated.
Crofting lawyer Brian Inkster argued that either existing legislation could be read as providing for owner-occupiers to decroft their land or secondary legislation could be enacted. As I sought to come to a view, I was struck by what Sir Crispin Agnew said to the committee. He told us:
“It is good that we are putting this right and beyond doubt.”—[Official Report, Rural Affairs, Climate Change and Environment Committee, 15 May 2013; c 2192.]
The committee concluded in its stage 1 report:
“On balance, the Committee is satisfied that legislation was required, and that given the desire to resolve the issue quickly, a bill is the most appropriate vehicle for dealing with the current problem.”
Sir Crispin and others expressed concern that the bill is unnecessarily complex. As our report made clear, the committee is not expert in the legal matters and cannot judge the merits of some of the concerns that have been expressed. If people whose role it is to advise on the law are voicing concern about aspects of the drafting, it is to be recommended that the Government consider the issues in detail, so that it can be sure.
The minister said that the bill is as it is
“to reduce the scope for misinterpretation and disagreement”,
and to provide
“consistency of language between the bill and the provisions of the 2010 act”.
“The bill might not be the shortest one that we could have produced, but I hope that it gives the greatest possible clarity about the intent and therefore less room for an alternative interpretation to emerge.”—[Official Report, Rural Affairs, Climate Change and Environment Committee, 22 May 2013; c 2268, 2261, 2260.]
Given the circumstances that brought us to this point, that is a compelling defence. However, I am sure that the Government has listened carefully to views that have been expressed and will consider whether amendments should be made, in particular in relation to the language.
The committee asked the Government
“to ensure that the Bill is clear and competent and does not add further complexity to an already complex body of legislation, or have the potential to give rise to further unintended consequences.”
- Paul Wheelhouse:
I made the point that the bill is drafted in such a way as to mimic, as best it can do, the provisions for tenant crofters. It is important to say that the current practice of decrofting for tenants appears to be working comparatively well. Policy is stable and the system is being administered fairly easily. Therefore, we hope that transposing the mechanisms so that they apply to owner-occupiers will bring not just clarity but a stable process for applicants to go through.
- Graeme Dey:
I thank the minister for his intervention. However, Sir Crispin Agnew offered helpful advice on wording, and it is not often that a learned QC offers advice gratis.
I cannot pass up the opportunity to comment on the verdict that Mr Inkster delivered in his blog on the stage 1 report and the committee. He decided to mark the report in the style of “Strictly Come Dancing” and award marks out of 10 for aspects of our work as well as for the finished product. Overall, the committee was given six out of 10, with the explanation:
“They could have done better. However, no doubt they could have done worse.”
At the risk of appearing thin-skinned, it is tempting to award Mr Inkster two out of 10 for humility, given that his opinion is only an opinion, albeit an expert one. However, these are serious matters, which are worthy of serious comment.
Mr Inkster has taken issue with the committee for not recognising the significance of his fear of a possible problem in the bill concerning
“de-crofting by owner-occupiers who are not owner-occupier crofters”.
Paragraph 121 of the committee’s report shows that, although it recognises that there is an issue to be considered, it should not be tackled through this expedited bill process.
Far from ducking that and other matters, the committee states in paragraph 122 of its report:
“The Committee urges that, outwith this Bill, the Scottish Government reviews all of the issues raised with the Committee, in order to determine the extent and effect of each issue, consulting widely where necessary ... The Committee recommends that the Scottish Government identifies a clear timeframe for the review and provides the Committee with progress updates on this work once it is underway.”
That seems to be the appropriate way to proceed—not rushing to legislate on something that may or may not be a problem and could no doubt be the subject of different interpretation. I welcome the minister’s commitment on that today.
The bill is about tackling a specific matter and doing the right thing by owner-occupier crofters, affording them the status and decrofting rights that I am sure that everyone who was involved in the 2010 act thought had been delivered. It is imperative that that is done as quickly as possible. Let us not forget that the lives of 44 people and their families are at least to some extent on hold.
- Rhoda Grant (Highlands and Islands) (Lab):
I, too, welcome the bill, but I am concerned about its complexity. It has already been said that specialist crofting lawyers have warned the Rural Affairs, Climate Change and Environment Committee that the bill is unnecessarily complex and could create unintended consequences to add to those introduced by the 2010 act.
I heard what the minister said in his opening speech, but I urge him to get round the table with those who expressed those concerns and ensure that the stage 2 amendments deal with them. Perhaps he could include the bill team in those discussions, as well. There is no harm in testing and debating the bill, because it is in all our interests to get it right. Given the short consultation, I do not think that it would be remiss of us to do that.
I turn to some of the anomalies in the 2010 act that also need to be sorted out. I understand why those anomalies are not being sorted out in this bill, because it deals with an urgent issue, but they could become just as urgent.
It was recently brought to my attention that the bill will make it illegal for anyone other than the registered crofter to work their croft. The Crofters (Scotland) Act 1993 act stated:
“The crofter shall, by himself or his family, with or without hired labour, either or both (a) cultivate his croft; (b) put it to some other use, being a purposeful use, so that every part of the croft either is cultivated or is put to such use.”
The 2010 act amended that to say:
“A crofter must comply with each of the duties set out in subsection (2)”,
“the crofter (a) must (i) cultivate the croft”.
The unintended consequence of that is that the crofter can no longer cultivate the croft with the help of his family or indeed hired labour. That flies in the face of crofting, which is very much a family activity, and it misses the essence of crofting, which is normally carried out collectively in a community. That work has been restricted to just the crofter and not the family, community or indeed hired help, which has created an anomaly. It might not be policed or reported on, but there is an anomaly in the law.
Others have mentioned other anomalies—Alex Fergusson might have already spoken about a very similar anomaly to the one that I am going to describe. I give the example of the crofter who has bought a croft, crofts the land, has a home and garden on that land and subsequently decides to sell the house and garden but keep the croft. The home and garden are not decrofted, but change hands. The new owner goes on to try to sell the house, only to discover that although he is the landlord of his home and garden, he is a tenant of the crofter—the original owner of the house. The new owner cannot apply to decroft, because he is the landlord, not the crofter. Such anomalies need to be sorted.
It is my view and certainly the view of others that elements of the 2010 act were simply not required. With regard to the use of grazings committees, the body that should organise collective working in a crofting township became the body that polices other crofters. That is a very difficult issue to deal with.
We need to look at the 2010 act and start to unpick it.
- Rob Gibson:
Does the member realise that the Crofting Commission is consulting on the means by which grazings committees make such reports? In any case, the commission requires only a very outline report, which will not be a threat to people working together.
- Rhoda Grant:
It all depends on what is required in that report—what its contents will be. Those who live and work in small communities know that stresses and tensions can exist, and the report could be used as a way of giving voice to those stresses and tensions and thereby could ramp things up to the point where the community is no longer cohesive or working together.
When we review crofting law, we need to look at the role of smallholders and tenant farmers in the crofting counties. A person’s status in those counties depends on a twist of fate with regard to how their land was categorised when the crofting laws came into force, and many tenant farmers and smallholders in those areas are keen to have the same protections offered by crofting.
There is a degree of unity in the Parliament about the need to review and rewrite crofting law. However, that work must be done by those who understand crofting. Too often, those who draft crofting legislation have no understanding of the system and are simply looking in from the outside. Although their genuine aim is to make things better, they manage only to make things worse. We must remember first principles: crofting is an economic driver that was introduced to deal with the excesses of and imbalance in Scottish land ownership that we debated yesterday, and it provides crofters with security of tenure, a home and, indeed, an income. However, recent legislation regulates and polices crofters instead of empowering them, and crofting law should offer protection and empowerment to ensure that we create sustainable economies in our most marginal areas.
The 2010 act has also, and for no good reason, imposed costs and put up more barriers and hurdles. I am not saying that this is my party’s position but I certainly feel that the act should be repealed and that we should then look at how we can simplify previous legislation. I stress again that that work must involve those who understand crofting.
Of course, that will be no mean feat. Crofting has evolved differently in different areas and means different things to different communities, so it will be almost impossible to define it in legislation. However, any new legislation must enshrine security of tenure, in return for which the crofter must work their croft. Legislation needs to provide not only a high level of protection but the flexibility to allow crofting and crofting communities to work as they have evolved.
It is right that the bill has come before Parliament and that it is processed with haste because of the cost to those who suffered from the anomaly that it deals with. However, there are many other issues to be sorted out and I look forward to the minister’s bringing forward an action plan on how he intends to deal with those anomalies.
- Angus MacDonald (Falkirk East) (SNP):
I am very pleased to contribute to today’s debate. One would be forgiven for thinking that, hailing from the Isle of Lewis, I would be clued up on all things crofting. However, it has become increasingly apparent to me that very few people fully understand the complexities of crofting law and that that must be remedied in the not-too-distant future by simplifying current crofting legislation.
A number of submissions to the committee’s short evidence taking on the bill have described the legislation as a “mess” and a “shambles”—or, more appropriately, a “boorach”, which is a good Gaelic word that was used by my colleague Rob Gibson and which describes the situation well. The layer upon layer of legislation, from the Crofters (Scotland) Act 1955 to the 1993 act and the 2010 act, have created a complex system that need not have been complex in the first place.
Although the Crofting (Amendment) (Scotland) Bill is needed—and needed quickly—some have described it as
“yet another layer of incomprehensible extra sections and consequential amendments to an Act which was consolidated 20 years ago, and which has been ... amended numerous times.”
I do not agree with that assertion, but I can understand why someone would come to that conclusion.
As we have already heard, we are where we are because, earlier this year, a flaw in the 2010 act was flagged up by the Crofting Commission, which stated that the new legislation did not give it the power to issue a decrofting direction for croft owner-occupiers. A decrofting mechanism is necessary to enable tenants and owner-occupiers to release a site for the building of a house; otherwise there can be complications with securing a mortgage. However, the commission flagged up that the act removed the power to decroft owner-occupied land. The bill therefore amends the Crofters (Scotland) Act 1993 and the Crofting Reform (Scotland) Act 2010, with the single purpose of providing for owner-occupiers to be able to decroft all or part of their crofts.
The bill also makes retrospective provision in relation to the currently suspended applications that have been made by owner-occupiers to decroft. I believe that there are around 50 of those applications, although the figure 44 was mentioned earlier, with 159 decrofting directions going through before the problem was identified.
During the bill’s progress to date, there has been considerable talk of consolidating current crofting law, which would go some way towards simplifying matters. There has also been talk of starting again with a blank sheet of paper but, having put that idea to a number of crofters in general conversation, I know that it has not been met with any particular enthusiasm.
Consolidation or codification would seem to be the preferred way forward, although some in the legal profession are of the view that the 1993 act should be deconstructed and then redrafted in a simple, user-friendly way. It is therefore imperative that the Government takes steps to deal with the wider problems in the 1993 act to ensure that that act is fit for purpose.
There have been conflicting views. The original problem was flagged up by an expert in crofting law, but the point was subsequently questioned by a solicitor specialising in crofting law, who wrote an article in the Journal of the Law Society of Scotland arguing that there was no problem and that legislation was not needed. It is no wonder that the vast majority of people are confused.
In the short timescale that was given for evidence gathering, the RACCE committee received some evidence that suggested that
“a commitment should be given by the Scottish Government to introduce a bill”
to deal with
“the various other anomalies in crofting law ... created by the 2010 Act.”
It was further suggested that
“an act that is a readable document and can be easily understood is essential and a simplification of the 1993 Act should be considered by Parliament. The present Act is a rehash of older Acts, amendments to Acts and does not address the true issues of modern crofting.”
Another valid point that was raised was that a single approach does not suit the different characteristics of the different areas and that the same criteria should not be applied to all situations. For example, there are more owner-occupied crofts in Orkney, Caithness and Shetland than there are in the Western Isles, and the characteristics of crofting in those areas are quite different. The crofts in Orkney, Caithness and Shetland are larger units, with a crofter in Orkney, for example, being able to make a living from his croft, whereas, nine times out of 10, a crofter on my home island of Lewis will require a second job to earn a half-decent living.
It is worth highlighting the committee’s view that it strongly recommends that the Scottish Government carefully considers any amendments that may be required to the bill at stage 2 to allow for full scrutiny and to ensure that the bill is clear and competent. We need to ensure that the bill is clear and competent—quite frankly, the last thing we need is the addition of further complexity to an already complex body of legislation or the creation of further unintended consequences.
Let us get this right, and then look at getting the rest of the complex crofting legislation right in the not-too-distant future. I welcome the minister’s commitment to include crofting legislation in future legislative programmes.
I am afraid that I have not quite used up my time, which must be a first.
- Tavish Scott (Shetland Islands) (LD):
Mr Gibson mentioned hedges in his definition of crofts. The definition of a croft that we usually use in Shetland is a piece of disputed land, surrounded by legislation, into which one pours money. The same principle broadly applies.
I have been very taken with the number of speeches that have, in effect, characterised crofting law as a charter for lawyers. I suspect that the concern of many of us who represent crofters across the crofting counties is that more and more of crofters’ time is taken up with seeking legal advice rather than heading to the department’s office to try to sort out the single farm payment. In a sense, that is the Government’s biggest challenge.
The minister gave a very fair answer to earlier questions about consolidation—or, as Rob Gibson put it, codification, if that turns out to be the way forward—but, to be frank, all Governments have ducked the issue so far. The Government of which I was a member ducked it, and the current Government has not yet found time to address it either.
I do not know whether any Government will decide to take on such a mammoth task, not least because, in the context of Scotland as a whole, the issue is awfully small beer. As Claudia Beamish said, we are talking about only a relatively small number of people.
However, as legislators we impose legislation on people, and at present—for the reasons that the minister gave for introducing the bill—our legislation is causing difficulties and preventing people from going about their normal, agricultural and crofting way of life. Given what crofting entails, I am sure that Rob Gibson would strongly agree with that point.
- Nigel Don (Angus North and Mearns) (SNP):
Tavish Scott makes the fair point that the issue does not affect a huge number of people in Scotland. However, I am sure he would agree that the real issue is the land. One cannot get rid of land, and it does not go away. It is where people live and put their feet. The law of the land is fundamental to the people who live there.
- Tavish Scott:
I do not disagree with that assessment, although the land is not much use if it does not have people on it. My concern is—and has always been, not only since I have been in Parliament but long before, when I was an NFU Scotland member and a farmer at home—that successive bills on crofting, as we have heard, just add layer upon layer of legislation, and the purpose of crofting is forgotten.
The Government is quite right to introduce the bill, as I made clear at an early stage. I thank the minister for progressing it as quickly as he can, given the constraints that Governments face.
The only point on which I disagreed with Alex Fergusson during his interesting romp through ancient mythology was that I am not sure that someone should not have picked up the issue in 2010. After all, that is why we employ lawyers. The loophole came to light—I am sure that Paul Wheelhouse will correct me if I am wrong—only because the Crofting Commission’s own lawyers found it. We could have a long, irrelevant and pointless debate about how big the loophole is, but it has been found. That raises the question of why the Crofting Commission’s lawyers did not find it during the passage of the 2010 act.
- Alex Fergusson:
I hope that Tavish Scott accepts that I did not say that the loophole should not have been found; I said that it was a measure of the complexity of the issue that it had not been found.
- Tavish Scott:
I am sorry—I was so taken with Alex Fergusson’s run-through of various features of mythology and trying to remember my schoolboy Greek that I lost his point, but I take note of what he says.
I will briefly address the wider points that other members have raised, which relate not only to the bill but to other issues. I have sent most of the correspondence that I will mention to the minister, so I will not go into any detail, but I note that there are significant problems in other areas. I am grateful to Rob Gibson for suggesting that his committee may consider those issues, and to the minister for his earlier reply in that regard.
I will give an example of one particularly go-ahead crofting couple at home in Cunningsburgh in Shetland. They run a very good agricultural business and a bed and breakfast, and they have built self-catering accommodation. They have done all the things that, in terms of public policy, we expect them to do, and have turned a small unit into a successful and thriving unit on which to bring up their family. However, they now face a situation in which the Crofting Commission views them as joint landlords of a vacant croft, and they cannot decroft any land without agreement. In the email that I received from them just the other day, they point out, with some justification—this may answer Graeme Dey’s question about how widespread the problem is—that there will be hundreds, if not thousands, of examples of the problem in Shetland alone. Landlords and crofting landowners have given or sold land for gardens, house sites, sheds, garage grounds, polytunnels, driveways—you name it. In the circumstances, it seems remarkably unfair that, in the case that I mentioned, the system stops that couple making progress simply because of the way in which it is now being ruled by the Crofting Commission.
Worse than that, the couple took up the issue with the Land Court and got a letter back just the other day in which the very helpful clerk to the court advised them that, whether as individuals or as a crofting couple, they could not challenge the Crofting Commission’s policy in the Land Court, although they could pursue a judicial review in the Court of Session. That makes the case, does it not? The best advice that, as legislators, we can give a crofting couple who are making a real go of their business is that they can go to the Court of Session. I think that we need to do a bit better than that.
I hope that the Government can introduce some concrete plans to deal with the other anomalies that Rhoda Grant and others mentioned, which I also believe need to be sorted. It is important to deal with the reality of the crofting counties. Angus MacDonald made absolutely the right point about differences across the crofting counties. I hope that the minister will reflect on the situation, which I am sure that he has seen in his own visits around the crofting counties. Recognising those differences will be absolutely the key to whatever the Government decides to do. I hope that the bill will be passed quickly and that we will quickly get on to other matters that need to be addressed.
- Dave Thompson (Skye, Lochaber and Badenoch) (SNP):
I welcome the progress that has been made with this essential amendment of the 2010 act, and I am glad that we are already at stage 1. Although we must ensure that no mistakes are made, the sooner we complete the legislative process, the sooner our owner-occupiers will be able to get on with their plans for new homes and suchlike.
My constituency is home to about 3,000 of Scotland’s crofts, predominantly on the west coast, Skye and the small isles, but also in the farmland around Dingwall, the Black Isle and Badenoch. On Skye, crofters account for around 65 per cent of households, so crofting is clearly an exceedingly important issue for my constituency and me.
Since the decision to halt applications for decrofting was taken in February—the only possible decision, in view of the legal consequences—I have been contacted by constituents who are concerned about the halt and its impact on their plans to build new homes and to secure mortgages. That shows why it is so important that amendment of the 2010 act, in the form of the bill, will comprehensively fix the legal difficulty and put the solution in place as quickly as possible so that all those who have been affected can resume their applications as soon as possible.
After the minister’s recent statement on the plans for legislation, I asked what plans had been considered to allow the Crofting Commission to deal with the backlog that has built up since February. I was reassured by the minister’s answer that the Crofting Commission has been asked in the meantime to process pending applications as far as possible, so that once we have robust legislation in place they can be concluded quickly in order to minimise the disruption that is being caused to crofters.
My constituents have expressed concern that information has not been forthcoming on how quickly the backlog will be tackled. I therefore hope—and expect—that the Crofting Commission will put its back into dealing with the backlog in order to clear it as quickly as possible. I am sure that that will be done.
The Rural Affairs, Climate Change and Environment Committee stated in its stage 1 report that it is important to ensure that the legislation will apply retrospectively. Obviously, that must be the case. The Scottish Crofting Federation, in an article in its in-house magazine The Crofter, described the Scottish Government’s plans to introduce the bill as
“the correct (and only) way forward.”
I am pleased that we are already at stage 1. Given the disruption that the current situation is causing crofters, our priorities for the legislation must be to ensure that it is, in order to avoid the need for amendment again in the near future, of high quality and in place as soon as possible.
In evidence to the Rural Affairs, Climate Change and Environment Committee, there were a number of suggestions that wider reform of crofting legislation would be desirable. I agree with those calls and look forward to the Government’s response, because there is no doubt that crofting legislation could do with consolidation. We have had the Crofters (Scotland) Act 1955, the Crofters (Scotland) Act 1961, the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968, the Crofting Reform (Scotland) Act 1976, which gave crofters the right to purchase their crofts, and we have had supposed consolidation through the Crofters (Scotland) Act 1993. Then, the Scottish Parliament had a crack with the Crofting Reform etc Act 2007, and a second go in 2010 with the Crofting Reform (Scotland) Act 2010. Now we have this bill, and I have probably missed something out. On top of all that, there are many regulations and there is guidance.
As Tavish Scott said, consolidation has been needed for some time, but previous Governments have ducked the issue. No one has been brave enough to tackle the issue, as Sir Humphrey may have said. Perhaps Minister Hacker—I am sorry; I meant Wheelhouse—will be the one to do so.
As well as consolidation and simplification of the law and regulations governing crofting, there are a number of other opportunities that we could take to improve life for crofters, particularly those in Skye and Lochalsh. Please forgive me for mentioning the recent study that was commissioned by the Scottish Crofting Federation and funded by the Scottish Government, which concluded that a Skye and Lochalsh abattoir could return a modest profit if the capital costs were funded. What has that to do with the bill? It is to do with sheep, cattle and pigs, without which there would be no crofting, in which case the bill would not be needed. The abattoir would have a maximum capacity for 4,000 sheep, 200 cattle and 130 pigs a year, with projected initial throughput of 800 sheep, 100 cattle and 130 pigs. The challenge will be to secure the funding to cover the capital costs. I intend to do all that I can to support that proposal, and I hope that the minister will look at it favourably.
Crofting is an important part of the heritage and identity of the Highlands and Islands; it is also the lifeblood of about 33,000 people across the country. The Highlands and Islands have some of the least favourable land for cultivation, so it is vital that we support our crofters and thereby ensure that, in return, the country always enjoys the security of producing good-quality foodstuffs for our own consumption, while benefiting the environment. We all rely on agriculture to give us the basic ingredients that make life possible, so we must all ensure that agriculture gets the support that it deserves. I am pleased that Parliament will back the bill.
- Jayne Baxter (Mid Scotland and Fife) (Lab):
When I became an MSP for Mid Scotland and Fife I did not imagine that I would spend some of my first few months considering the complexities of crofting legislation. There was a lot that I did not anticipate doing as an MSP, but that issue was certainly well down the list of possibilities, because in much of my region it does not come up much in conversation when I speak to voters on the doorsteps.
I did not imagine that we would also have to spend a considerable portion of committee and parliamentary time in my short time in Parliament revisiting legislation that has only recently been passed, but which has in recent months been unravelling. As someone who respects and honours the role of Parliament’s committees in scrutinising legislation, that has made me reflect on that process and on whether we can ever be sure that we know enough about a given topic to invite the right witnesses or to ask the right questions.
I suppose that the answer to that is that nothing is guaranteed, and all that we can ever do is work with the available advice, information and evidence. That is how we have found ourselves dealing with the unintended consequences of the Crofting Reform (Scotland) Act 2010.
I have said that the 2010 act unravelled, but it is probably more appropriate to say that it has found itself tangled in a complex knot. That legislative knot—and how we unpick it—has been the cause of considerable debate in the legal opinions that were given to the Rural Affairs, Climate Change and Environment Committee during its consideration of the bill. I am well aware that it is not uncommon for lawyers to come up with several different interpretations of the law, but it is perhaps uncommon for witnesses giving evidence to a parliamentary committee to describe the law as “a mess”.
I am pleased that the committee puts that point at the front of its stage 1 report on the bill. I was also pleased that during the committee’s evidence taking it appeared that it was not just me who finds crofting law opaque and confusing. Indeed, the report highlights “significant frustration” and is
“concerned with the increasing complexities of crofting law.”
I was not a member of the Parliament when the Crofting Reform (Scotland) Bill was passed in 2010. Colleagues who were here may recall the debates at that time. In going back over the history of the legislation, I came across a speech by Peter Peacock, who made what has turned out to be an extremely prescient contribution to the stage 3 debate on the bill. Unfortunately, the opinion of Peter and other members that we would not see another crofting bill for some time proved to be too optimistic. His closing comments are worth recalling. He said in the debate:
“Future Parliaments would do well to address the deep and enduring economic challenges that people in many parts of our crofting counties face. Until those challenges are met, there is little that legislation can do other than impose more complexity, regulation, bureaucracy and cost on crofters. The bill exemplifies all those features. If it passes on to the statute book, it could be held up as a warning, not an example.”—[Official Report, 1 July 2010; c 28193.]
I hope that we can keep in mind those “deep and enduring ... challenges” to people and crofting communities as the bill progresses.
The Scottish Government responded to the report of the committee of inquiry on crofting in 2008 by laying out the five key principles for securing the future of crofting. Those relate to maintaining and increasing the amount of crofting land in tenure, ensuring that it is used productively, considering the role of housing and its contribution to the local economy, encouraging new entrants into crofting and—perhaps most important—empowering people to make decisions about their future and the future of their communities. Those are laudable aims with which it is hard to disagree. Unfortunately, it seems that although the steps that the Crofting Commission is taking are an attempt to achieve those goals, the legislation surrounding crofting is dense. As I have noted, it has been described by some witnesses in less than flattering terms.
I hope that the Scottish Government will note the Rural Affairs, Environment and Climate Change Committee’s recommendation that it pay close attention to witnesses’ concerns about the current crofting legislation. Having listened to the witnesses’ evidence, I fully support the point that is made in the report that consideration should be given to the possibility of not just consolidating crofting legislation but making sure that crofting policy, based on the law, is stated in “revised, simplified terms.”
The minister will recall concerns that were raised about a bill that the committee considered previously—the Aquaculture and Fisheries (Scotland) Bill. Many members rightly highlighted their concerns about the Government lodging unscrutinised amendments at stage 3. I therefore look forward to the minister heeding the committee’s recommendation to not just write to the committee to indicate how the Government will respond to the points that are made in the report and the debate, but to give thought to what amendments should be lodged at stage 2 to allow thorough consideration of a complex and very technical area of legislation.
- Richard Lyle (Central Scotland) (SNP):
I welcome the bill. As a member of the Rural Affairs, Environment and Climate Change Committee, I fully support the bill—and the Government’s swift action—because I believe that it is the right thing to do.
However, not everyone is of that belief. There are people outside Parliament who think that the bill has been hurried through. I ask them to think of the landlords, crofters and other people who are affected and who require that the change be made. Now is not the time for indecision; it is the time for effective, proper and right legislation that helps to fix the problem that those people face.
The bill should not be a party-political issue, and I sense that members across the chamber will agree to let the bill proceed at decision time. I am sure that we can all agree that the bill should be about the people who are affected by the issue that we are debating.
I want to return to what crofting is. To echo the point that Jayne Baxter made, when I was appointed to the committee, I did not know what crofting was either, but I am starting to learn what it means to so many people. Crofting is a system of landholding that makes a significant economic, social and environmental contribution to remote and rural areas, and it is part of our history. I am informed that there are 17,725 crofts in Scotland, mainly in the Highlands and Islands, and that about 33,000 people live in crofting households.
The bill is needed to address a problem that occurred with a provision in the Crofting Reform (Scotland) Act 2010. I am sure that everyone has repeated this. The 2010 act introduced the term “owner-occupier crofter” into the 1993 act. I listened intently to the point that Dave Thompson made earlier about the various legislation on crofting that has come in over the years, and to the point that Angus MacDonald made with regard to what needs to be done, which was identified by the minister, the convener of the committee and other speakers. That provision in the 2010 act has had the unintended effect that owner-occupier crofters are not allowed to apply to the Crofting Commission to decroft land unless the land is vacant.
I note that there have been several criticisms that those who will be affected by the bill have not been consulted on its proposals. However, I re-emphasise my earlier point that those who are affected by the current situation desire that it be fixed, which will happen through the bill. Despite the tight parliamentary timetable, the Government attempted in the time that was available to seek views from the stakeholders on the proposals, as the minister ably reminded us. I make that point merely to highlight the fact that the Government has made every attempt to involve people in the decision-making process.
One prominent issue that is worth noting, and on which there is some strength of opinion among lawyers and crofters—as Graeme Dey said earlier, we got perhaps the only free legal advice that we will ever receive from lawyers—is that the current state of crofting law is poor. I think that everyone accepts that. If I, as a member for Central Scotland, recognise that, it must be poor. However, I am confident that the Scottish Government and the minister will look at that in detail.
The bill seeks to right a problem and to close a loophole. As other committee members do, I believe that despite the concerns that have been raised the bill will achieve its policy aim; it will do what it sets out to do and enable owner-occupier crofters to apply to the Crofting Commission for a decrofting direction.
As my final remarks in this stage 1 debate, I say that I hope that the bill will close the current loophole and bring much-needed assistance to the people who are affected by the problem. Once again, I congratulate the Scottish Government on introducing the bill and I welcome the swift action that it has taken. The Government’s action, along with the work that was done on the stage 1 report by the members of the Rural Affairs, Climate Change and Environment Committee—under the able stewardship, as I said yesterday, of our convener—are to be commended. The bill highlights the Scottish National Party Government’s commitment to getting things right for the people of Scotland, whom we serve.
- Jean Urquhart (Highlands and Islands) (Ind):
I, too, commend the minister and the Scottish Government for the manner in which, and the punctuality with which, they have addressed this serious issue. The problems surrounding decrofting require our most serious attention and have caused real concern among crofting communities in my constituency, so I thank the Scottish Government for acting swiftly to fix the anomaly.
I also thank the RACCE committee and the Scottish Parliament information centre for their helpful reports on the bill, without which many laymen and laywomen would struggle, even more than they do already, to digest the purpose and necessity for the amendments that the bill proposes.
The bill seeks to extend the legal right to decroft to individuals who have purchased their croft and have become owner-occupiers. I do not think that the Government, or anyone else for that matter, intended through the 2010 act to deny decrofting rights to owner-occupiers. The bill will maintain the intention and purpose of previous crofting legislation by correcting a lack of legal rights that should never have been lacking to begin with. The bill deals with one of the more anomalous legal issues, which is rightly being corrected as quickly as possible.
As well as giving owner-occupiers, via the codification, the legal right to decroft, the bill will retrospectively validate the 159 applications to decroft from owner-occupiers that were accepted by the Crofting Commission from 1 October 2011 onwards. The bill will grant legal certainty to those 159 owner-occupiers by reassuring them of the validity and legal status of their croft’s current situation.
It is important to bear it in mind that the intentions of this amending bill are limited in scope. It seeks to bring owner-occupiers back under the umbrella of normal crofting legislation by extending to them the legal right to decroft while requiring the same pre-conditions before application, and by giving them the right to the same appeals process as applies to tenants who make decrofting applications.
As a member of the cross-party group on crofting, I am aware of the legal complexities that surround crofting, as they surround few other subjects that I know. I note that, in its stage 1 report, the RACCE committee calls on the Government
“to ensure that the Bill is clear and competent and does not add further complexity to an already complex body of legislation”.
Some of the people who are involved in crofting law believe not only that the bill is unnecessarily complex, but that it is unnecessary in the first place. I am no expert on the legal detail of the bill, and although I believe that new legislation is the correct action to take in this instance, the criticisms that have been made by some people about drafting are cause for concern.
Given the nuances and peculiarities of crofting, and given the various legal interpretations that have been offered during the committee’s evidence gathering and the expedited nature of that process, I trust that the Government will be responsible and will listen to all views as the bill progresses. I also trust that the Government will continue to do what it can to clarify and simplify crofting law, in the near future. Decrofting was obviously a pressing issue, so I appreciate that to tack on other crofting legislation issues to the bill would have slowed down the process considerably. I hope, however, that the experience of scrutinising the bill has highlighted for many people the fact that there is in Parliament a will on the need for crofting legislation to be reassessed, and for the legislation to be, as the RACCE committee says,
“clear, competent, consistent and fit for the 21st century”.
I would therefore be keen to see the Government continue to consult the crofting community on the possibility of introducing further legislation after the recess. I hear everybody groan at the notion of further legislation, but it could consolidate and simplify existing legislation. We must pass the bill expediently for the benefit of the crofting community. After the recess, we can focus on the other areas of crofting legislation that need change.
I know that the Minister for Environment and Climate Change is recently appointed to his post, but I believe that, in the three years before the end of the parliamentary session, he could make his name as the minister who fixed crofting law once and for all. I support the bill.
- Nigel Don (Angus North and Mearns) (SNP):
I start by heeding the comments of the Minister for Environment and Climate Change, who would like us to focus on the bill. I will do that, but I will go back to a subject that I mentioned briefly when the committee interrogated officials before we spoke to the minister. I am extremely concerned that we get the transition and the transitory provisions right. They have come back to bite us before—not in crofting law, but in other areas.
I refer the minister to IO and LO v Aberdeen City Council—a family law case in which the policy behind the act involved assumed that the transition from the previous situation to what was intended would take place within a specific period. Unfortunately, it did not guarantee that that would be the case, and it became convenient for some lawyers to drag out their cases, so we finished up in a position where the law was in a complete mess, because it had been assumed as a matter of policy that the transition would be completed.
I am sure that the minister’s officials are well aware of that, as is the minister, but sections 4(2)(c) and 4(4)(b)—and section 5, which is a transitory provision—contain dates. I am sure that they have been carefully thought about, but I encourage the minister and his officials to reflect on whether the things that those sections are intended to cover are absolutely guaranteed to fall within those dates. If they are not, the obvious implication is that we might have overspecified in the provisions, which would be extremely unfortunate.
I shall now stop taking the minister’s advice to focus on the bill, because everything that can reasonably be said has been said. Alex Fergusson got that absolutely right some considerable time ago, and I have no desire to repeat what has been said, other than to say that the Government has done precisely the right thing by dealing with the issue as promptly as it has.
I will elaborate slightly on the concerns that have been expressed—some of them by people who know a lot more about crofting law than I ever will—about the position in which we find ourselves, and I will comment on how we might deal with it. However, I will start by going back.
Nobody has mentioned the Shucksmith report yet, but I will. It is probably a good thing that Michael Russell is not present, because his hair might go even whiter very quickly. Beside paragraph 2.1.5 on page 15 of that report, at the side of the page, an unattributed quotation says:
“all croft land is a bequest to us from the past and it is our duty to pass it on to the future generation and not over exploit our inheritance for short term gain”.
So say all of us, I suspect. I do not hear anybody concerned with land reform—we had a considerable debate on that yesterday, of course—saying that we should somehow get rid of crofting. That is not part of anybody’s agenda.
Back on page 8, another unattributed quotation in the margins says:
“There is a desperate need for the regulations surrounding crofting to be modified and hopefully simplified which would encourage the advancement of crofting.”
Again, it is probably a case of so say all of us.
I will quote fairly extensively from the foreword to the Government’s response to that report. It said:
“In reforming crofting, we need to focus on what crofting can contribute to the development of a successful rural Scotland. We have to recognise that circumstances in the 21st century are quite different from the circumstances in the 19th century when the first Crofters Act was brought into force. The first Crofters Act was introduced to give tenant rights over the land they occupied to enable them to stay in their communities”—
I think that we are with the script all the way through this.
“Agriculture was a dominant feature of crofting but as we have moved into a more competitive, global market, crofting agriculture has declined and crofts have been put to wider uses.”
I note Dave Thompson’s comments that we might get back to more agricultural uses if the appropriate facilities existed.
“Today crofters exercise control over much of the land in their communities and trade their crofts and croft tenancies on the open market as demand for housing increases.”
We all recognise that housing is needed. It is not possible to populate an area if appropriate houses are not available.
“The consequence of these trends is that traditional crofting practices are in decline and more and more land is being taken out of crofting tenure as crofters exercise their right to buy and realise the value of these assets in the open market.”
- Rhoda Grant:
Nigel Don makes a valid point. Crofting has changed and crofters are using the land to do something because it is basically an economic lever and they need to lever in an income from the croft. One of the problems is that crofting never gets its fair share from agricultural grants, the common agricultural policy and all the systems for helping to pay for agriculture to address its disadvantage. Until we address the economics of crofting, it will never go back to being land based.
- Nigel Don:
Rhoda Grant makes an interesting and enormously complicated point in an already enormously complex area. I cannot disagree with her that, if we are going to stick with crofting—I am not suggesting for a moment that we should not—we must think about how the land law and the economics work.
I will continue the quotation:
“Crofting is now at a crossroads and we need to decide which direction to take in order to secure the future of crofting. Bringing new blood into crofting communities and releasing their energies to help secure sustainable economic growth will be key.”
That is crucial to any proposals that we make to revise crofting land law because, in exactly the same way as in yesterday’s general land reform discussion, it comes down to the economy at the end of the day. The land is merely where somebody plants themselves and digs a hole in the ground. It will ultimately come down to the economic use of land, and we must not lose sight of that.
I note that, in the overview that followed the foreword, the Government set out five principles, which were:
“Maintaining and increasing the amount of land held in crofting tenure”;
“Ensuring that land in crofting tenure is put to productive use”;
“Ensuring that housing in the crofting counties makes a full contribution to the local economy”;
“Giving more power to local people to determine their own futures”;
“Assisting young people and new entrants into crofting.”
I suggest that that summarises in five lines the direction in which we will have to try to go.
I will pick up one other thought, which is at the back of the Government’s response to the Shucksmith report. I do not think that this is a party-political issue. Recommendation 3.15.1 of the report said:
“We believe new legislation is needed to replace, simplify and clarify the accumulated laws which set the framework for crofting today.”
The response was:
“The Scottish Government is sympathetic to the aims of this recommendation. However, in view of the complexity of crofting law, the process of simplification would, if properly undertaken, significantly delay the implementation of these policy proposals.”
Therefore, the Government’s view was—these are my words, rather than a quote—“We’re going to do this little bit now and we’ll worry about the rest of it some other time.” We are still in that position. The point is that we will always be in that position unless the minister is prepared to take on what would be described in the jargon as the heroic task of trying to sort the whole thing out.
I am grateful to other members for pointing out that there is a difference between consolidation and codification. It is important that we get our minds around that. Fundamentally, consolidation involves putting the words that we already have in the right order on one piece of paper. That might help. I suspect that, largely, that is done by those who produce such things commercially and make them available.
I am absolutely sure that what we need is codification. I note that Rhoda Grant suggested that we should repeal the 2010 act and go from there. I seriously suggest that we should repeal all the crofting legislation and rewrite it from the policy upwards—ensuring, of course, that we have transitional arrangements that ensure that everything still works. Unless we can work out what the policy is meant to be, I suspect that we will just add another layer.
Somewhere in the documents—in recommendation 3.15.2 of the Shucksmith report, in fact—it is stated that
“No change should be made to those rights given to individual crofters in the 1886 Crofters Act”,
so we have been at it for a while. That has probably all been repealed, but it makes the point that we are dealing with fabulously old stuff. [Interruption.] I missed that—I apologise.
- The Deputy Presiding Officer (Elaine Smith):
You need to begin to draw to a close.
- Nigel Don:
I commend a couple of other thoughts to the Parliament. My colleague Angus MacDonald pointed out that there is different policy in different areas. That is why we need to go back to the policy before we write the law; the law will reflect the policy. Someone—forgive me, but I have forgotten who—made a point about things having to be sorted out in the Court of Session. That must be madness. If a decision has to be taken in the Court of Session, we have failed. We must write the law and not expect the Court of Session to sort it out for us.
- Jamie McGrigor (Highlands and Islands) (Con):
I am pleased to close the stage 1 debate for the Scottish Conservatives. I thank the members and the clerking team of the Rural Affairs, Climate Change and Environment Committee for producing a thorough and extremely useful stage 1 report in such a short timeframe. Thanks should also go to Tom Edwards of the Scottish Parliament information centre for his excellent briefing; he never lets us down.
Not long ago, I attended a meeting of crofting lawyers in the Signet library, at which an eminent lawyer assured the brethren there that there would be much work for them in crofting law for the foreseeable future. I am beginning to understand why he said that. Someone once memorably described crofting as a small island surrounded by a sea of legislation. Here we are adding another piece of legislation to the swell of that great ocean. I suppose that it would be fair to call the bill a wee burn rather than a big river; nonetheless, it is necessary.
Like the committee, I regret that, because of a lack of clarity and a number of omissions in the existing legislation, the Crofting Commission decided that there was no legal basis for it to make determinations on applications by owner-occupier crofters to decroft. As we have heard from other members from the Highlands and Islands, that has caused considerable difficulties for a number of our constituents across the crofting counties. Therefore, it is right that the Government determined to introduce legislation to remedy that state of affairs as swiftly as possible, and it is appropriate and sensible that that should apply retrospectively to all those who have previously made applications or who have applications that are pending but on hold as a result of the legal concerns.
We have had consensus in the debate that the bill, which is on the specific issue of decrofting, is definitely required. However, I share the concerns of other members and of the committee that there is a considerable body of legal opinion that this short bill is too complex and that it might need amendment to avoid further difficulties in legal interpretation in the future.
I am not a lawyer or a legal expert so, like the committee, I can only urge ministers to take on board and address the concerns that have been expressed by eminent figures such as Sir Crispin Agnew QC and Brian Inkster. Ministers should, if required, lodge amendments to the bill at stage 2 so that we do not find ourselves having to enact yet another amendment bill in a few months or years. We must try to avoid that at all costs.
I note the committee’s reference to the significant number of outstanding crofting issues that many people believe require to be addressed. Some of them are separate from the specific decrofting issue that the Government is addressing in the bill and some are more connected with it. They include detailed concerns about the legal definition of an owner-occupier crofter and about the legal position of decrofting when a croft has been divided and there are multiple owners—I raised that issue with the minister in the chamber at the end of March.
I agree with the committee’s recommendation that ministers should identify how they intend to address those issues and that they should set out how they will proceed. Like other members, I welcome the minister’s commitment to establish a group to consider how those issues might best be addressed.
More generally, the committee’s report reflects the widespread concern among crofters and their representatives about the complexity of crofting law. I share that concern, which has been brought up again and again at the cross-party group on crofting, which I convene.
The consolidation of crofting legislation remains a sore. It is a constant agenda item, at the request of CPG members. At each meeting, we raise the matter and talk about it.
The minister told me earlier this year in response to a written question:
“The Scottish Government will consider the consolidation of crofting legislation after it is satisfied that all the provisions of the Crofting Reform (Scotland) Act 2010 are working as intended.”—[Official Report, Written Answers, 4 March 2013; S4W-12989.]
Can he confirm that that remains the case—that it means consideration of consolidation when the provisions of the 2010 act and those of what will shortly be the crofting (amendment) (Scotland) act 2013 are working as intended?
For that matter, when will we know whether those provisions are working as intended? Who will judge that? There could be considerable arguments between people in different townships over what is and is not working. The minister will have to consider that. His answer says that he will do something, but he might not be in a position to know what is and is not working.
- Tavish Scott:
I take Mr McGrigor’s argument about who would have to make that call. In his analysis, is the real danger that it would again be lawyers who made that call, and none of the rest of us?
- Jamie McGrigor:
As I have said before, there appear to be a few people with smiles on their faces, and they are not particularly the crofters—which leaves the lawyers, I suppose.
As I pledged to the minister in response to his statement on decrofting on 28 March, the Scottish Conservatives will support the bill, as we recognise the urgent need for legal clarity that will allow owner-occupier crofters to enjoy the same rights as croft tenants.
We look to the Scottish Government, working closely with crofting law experts, to do everything possible at subsequent stages to ensure that the bill has no unintended consequences. We want ministers to address the other issues that the committee identified—especially those that badly need attention.
Crofters and the crofting communities have many other challenges to overcome, especially this year, with the rigours of a bad winter and the increases in animal feed prices. At the very least, they deserve clarity from their legislators.
When I look back, my experience of crofters has always been good. Fifteen years ago, I canvassed many crofters across the Western Isles when I was a candidate there, and I found that, whatever their politics might have been, they were very welcoming. However, their dogs were sometimes not as welcoming. I once entered a kitchen that revealed a Mary Celeste situation. There was an uneaten breakfast on the table and the news was on the radio. I realised that the house was empty but, before I could exit, growls from the doorway revealed two enormous sheepdogs, which would not let me out until the owners arrived an hour later.
Another time, I went to canvass a crofter who was feeding his sheep in a field. He shouted at me that I would not have his vote until I went back to Westminster and got John Major to do something about the sea eagles. I know that we have mentioned sea eagles a lot.
Crofters face many issues, which are practical. The lives that we live here do not involve going out at 6 in the morning and feeding cattle and sheep in muck, rain, wind and other difficult things. It is up to those of us who sit in the comfortable chairs to give crofters at least the legislation that they deserve.
- Claire Baker (Mid Scotland and Fife) (Lab):
I thank all those who worked on the stage 1 report, which was done quickly. I know that the committee has a very busy work programme, and we all support its efforts to resolve the recent problems as soon as possible. The committee’s stage 1 report highlights the challenges in taking evidence within such timescales. The complexity of the evidence that the committee received and the desire of many stakeholders to talk about wider issues with the 2010 act and other crofting legislation have been highlighted.
At the time of the statement, it was identified that 179 crofters had already decrofted and 60 were in the process of decrofting. I welcome the updated numbers for the current picture.
At the beginning, the minister gave real-life examples of people who have been impacted on in the current situation. That emphasised the need for swift action. The situation has added to the financial pressures for those crofters, and it is good that we are on track to provide legal clarity before the summer recess. That is particularly important for those who have been caught by this set of circumstances and those who have planning permission that is running out.
There has been a period of uncertainty, and there has been uncertainty in the committee. As other members have highlighted, there was a debate on whether the bill is necessary. The crofting lawyer Brian Inkster, who has been mentioned a few times, argued that the matter could be resolved in a different way, while the chair of the Scottish Crofting Federation, Derek Flyn, supported the bill as the right way forward. In conclusion, there was an agreement that the bill is the way we should proceed, and we support efforts to resolve the issue as quickly as possible through the bill, which is subject to stage 2 scrutiny.
The experience has lessons for the future. Like Jayne Baxter, I looked back at the stage 3 debate on the Crofting Reform (Scotland) Bill. She has already quoted what Peter Peacock said then, but I will repeat his final line. He said that if the bill
“passes on to the statute book, it could be held up as a warning, not an example.”—[Official Report, 1 July 2010; c 28193.]
Members’ contributions this afternoon on the complexity of the bill have raised questions about how we should go forward on crofting legislation. There were concerns about the scrutiny of the 2010 bill at the time, and we abstained with the Liberals in the final vote as an expression of our concerns. We recognised the Government’s intentions, but we had concerns about the implementation of the bill. I would rather that we did not return to the legislation so quickly.
Many made the point in evidence at stage 1 that there is perhaps a need to look at the 2010 act as a whole to guard against any future flaws or unintended consequences that may come to light. There have been concerns about future unintended consequences or anomalies.
- Rob Gibson:
Does the member recognise that the 2010 act is consequential on various other acts, particularly the 1993 act, which is where the definitions of terms such as “owner-occupier” originate? If we are going to look at those issues, we will have to take into account all the acts and not just the 2010 one.
- Claire Baker:
I appreciate the complexity of crofting legislation and the fact that the 2010 act is dependent on previous acts. It would be good if the Government could provide more detail on its thinking on the issue. As Rhoda Grant described it, we need support for an action plan. It would be good to know that the minister is working constructively with the committee on how we make progress on the broader issues. The committee’s stage 1 report asked for a clear timetable for that. We all recognise the complexity. However, particularly with the 2010 act, the Parliament did not make a unanimous decision, and some parties expressed concern about the scrutiny that was carried out at that time.
Frustration has been expressed during the debate. Rhoda Grant suggested that we should repeal the 2010 act and Nigel Don went so far as to suggest that we repeal all crofting legislation and start from the beginning. That reflects the complexity and the frustration that members feel, which arises from their experience with their constituents. Tavish Scott talked about consolidation, although it has been recognised that simply bringing together all the provisions might not lead to simplification. Whether we look at consolidation or codification, there is certainly a need to consider how we progress on the matter.
The committee made a number of recommendations in its stage 1 report, which members have highlighted. There are concerns that the bill as drafted is unnecessarily complicated. Rob Gibson, the committee convener, talked about the bill being overly complicated. There might be a need to lodge amendments at stage 2 to avoid future difficulties with legal interpretation. The minister says that he believes that the level of complexity in the bill is necessary to provide the clarity that is needed, but I encourage him to consider the issue in a bit more detail at stage 2 and to work with those who suggest ways to simplify the bill. The committee also highlighted the definition of the term “decrofting direction” and the protection of access to crofting land as issues that need to be addressed at stage 2.
There are significant other outstanding issues on crofting, many of which have been highlighted by members. It is sometimes difficult to know how widespread those difficulties are. One is the definition of the term “owner-occupier crofter”; another is the complexities that arise when there are multiple owners of distinct parts of the same croft, which we know potentially involves about 700 people. Rhoda Grant raised further concerns with the minister relating to unintended consequences over who cultivates a croft. I encourage the minister to correspond with Rhoda Grant on that.
As Rob Gibson said, crofting law is complex. It has developed over generations and centuries and is not down to only one act. However, we are currently dealing with the 2010 act, which changed the definition of a crofter so that crofters who have bought their crofts—which they have been able to do since the Crofting Reform (Scotland) Act 1976—have the same rights or conditions of occupancy as crofters who remain tenants. As others have said, crofting law has been described as “a mess”. Jamie McGrigor has been around for longer than I have but, last night, I read that a croft is often described as a small piece of land that is surrounded by legislation, which I thought was a good description.
- Jamie McGrigor:
I inform the member that I once gave a surgery in Portree at which a crofter arrived with a bundle of papers, which he threw down on the table in front of me, saying, “That’s the story.” I looked at the paper on the top of the bundle and it said, “Secretary of State for Scotland, 1948”.
- Claire Baker:
That is a good example of how long we have all been involved with the issue. If Jamie McGrigor was involved in politics in 1948, that perhaps shows the generational gap that exists between us.
In evidence to the committee, Derek Flyn said:
“More than a century ago, a textbook said that crofting law was more complicated than the tax laws. Every time there is a reform, it is always stated that crofting law is to be simplified but, every time, we get another layer on top of what has gone before.”—[Official Report, Rural Affairs, Climate Change and Environment Committee, 15 May 2013; c 2198.]
We have intricate, complicated and historical legislation, in which it seems that proportionality has been completely lost. The committee asked the Government how that could be addressed and asked
“how it plans to ensure crofting law is as clear, competent, consistent and fit for the 21st century as possible.”
The committee took a sensible approach. It had to balance the need for speed with the need for accuracy, in recognition of the pressing need to rectify the anomaly that prevents owner-occupier crofters from applying to decroft. However, the committee acknowledged the need for full scrutiny at stage 2, to guard against the introduction of further complexity and the potential for unintended consequences.
Tavish Scott talked about a crofting couple who are involved in legal complexities when their time and effort would be better spent in getting on with doing what they do. Although we have focused on the bill today, the broader point is that no legislation will resolve the challenges that crofters face, which are economic and not regulatory.
Some 18,000 crofts in Scotland house more than 33,000 people, and a large proportion of Scotland’s natural heritage and designated sites—nearly 70 per cent of our national nature reserves and more than 60 per cent of our sites of special scientific interest—lies within the crofting counties.
Last night, I was at RSPB Scotland’s high nature value farming event, at which there was a discussion about how to support crofting and vulnerable farming. It was argued that there needs to be a clear link with productivity, which was interesting.
CAP reform and agricultural support are actively being discussed. In the context of the move from historic to area-based payments and the changes that we can make to the Scotland rural development programme, there might be opportunities to provide greater support to crofting communities.
There were interesting exchanges on Twitter last night—as there always are. The site @ScotVoices highlights a different Scot every week, and this week it was Donald Macsween, from the Western Isles, who is a crofter. Various issues have been discussed, such as absenteeism, which people said is now easier to detect and deal with.
During the passage of the Crofting Reform (Scotland) Bill in 2010, Peter Peacock made a perceptive comment about absenteeism. He said:
“the bill—for example, in being tougher on absenteeism and neglect—seeks a regulatory action to what is essentially an economic question. If crofting provided more of a living and there were more economic strength and diversity in our crofting areas, we would probably not need to debate absenteeism.”—[Official Report, 1 July 2010; c 28191.]
Dave Thompson talked about a proposal for a local abattoir. It is about having the modern infrastructure that can support crofting communities and ensure that they are sustainable.
Neglect was discussed on Twitter last night. Neglect blights land that has the potential to be worked and damages crofting communities, landscapes and biodiversity, but it is difficult to address. How is neglect monitored or judged? More action might be needed in that regard.
The increasing cost of crofting leases was also mentioned. The comment was:
“My 7 acre croft cost approx £5k nearly 10 years ago. 2.5 acre croft next door for sale just now, looking for £10-15k”.
How do we make crofting not just economically viable but accessible to people who want to croft? As Angus MacDonald said, crofting is a difficult life and it is not often that a crofter can sustain their way of life without having more than one job.
Crofting has been and remains a critical means of sustaining and retaining populations in some of our more remote communities. There needs to be a focus on legacy building. In the recent BBC programme “Hebrides: Islands on the Edge”, crofting was discussed. The programme did a good job of helping people to understand crofting. We saw how local schoolchildren are learning crofting skills in a scheme that is proving popular and is offering a means of legacy building and connecting the community with crofting.
We know the benefits that crofting can bring. Crofting communities are strong and work collectively to work the land and keep it for future generations. We must work together to ensure that crofting remains viable. This is an essential debate about how we solve a fairly technical problem, but the bigger question is how we support crofting and economic development in rural areas.
We need more targeted resources in the less favoured areas, through agricultural support, rural development mechanisms and support for housing—that relates to our debate on land reform yesterday. More joined-up rural development policy and greater decentralisation of jobs in the economy would do much to support rural communities and crofting. Those are the real challenges that we face.
- The Deputy Presiding Officer (Elaine Smith):
I call the minister, Paul Wheelhouse, to wind up the debate. Minister, I can be very generous with time until 5 o’clock. However, if you feel that you have covered all the points that have been made in the debate and that you want to make, I will briefly suspend the meeting of the Parliament.
- Paul Wheelhouse:
I will do my best to use the time to full effect, because members have raised so many interesting points in the debate. The debate has been interesting and I am grateful to members for their contributions. I will respond to as many of the points that have been raised as possible.
It is very gratifying to note that broad agreement remains on the need to address the owner-occupier crofter decrofting issue and I am grateful indeed for the constructive and positive approach that all members have taken in the debate. There is general consensus on the need for action, irrespective of the detail, which we will go through at stage 2 and stage 3. It is also gratifying to note that there is broad agreement that the bill will deliver the necessary changes and ensure that owner-occupier crofters are treated equally to tenant crofters and crofting landlords.
I said earlier that crofting often inspires emotion in debate. Some may disagree on finer issues such as drafting, but I hope that that will not stand in the way of progress today. I am sure that all members will agree that it is important to deliver the focused intent of the bill and to remain committed to that common aim during its remaining stages.
Crofting plays a vital part in sustaining our rural communities and we can be thankful to our crofters for the wonderful sight and riches of the machair on our screens in the BBC’s “Hebrides: Islands on the Edge” programme, which Claire Baker referred to. It is therefore important that those involved in crofting know exactly where they stand.
The bill clarifies where owner-occupier crofters stand on decrofting. It removes the legal doubt on decrofting that a number of members mentioned. Irrespective of the merits of the cases that have been put forward by different lawyers—a number of whom we have seen in and outwith the committee—who have valid but differing views, the fact that there is that uncertainty and that so many eminent lawyers cannot agree, even on the need for the bill, shows the need to clarify and put to rest this issue, so that crofters can get on with their day-to-day lives.
I have listened with great interest to the points that members have made. It has been argued since February that new legislation to address the issue is unnecessary. That is not the view of the Scottish Government, nor, it would appear, of the Rural Affairs, Climate Change and Environment Committee. It has also been argued that the scope of the bill should be expanded to deal with matters other than owner-occupier decrofting, and I will try to use my time effectively to refer to as many of those matters as I can.
Other issues have been raised today and in the course of the evidence that was given to the committee. Brian Inkster has provided a shorter bill. However, length is not the only consideration, as I mentioned earlier. We need to ensure that the issue is fully addressed and in my and the Government’s opinion the bill will do that.
The form of drafting minimises the doubt about owner-occupiers having similar decrofting rights to tenants. I made the point in an intervention that, to my understanding, although the provisions for tenant crofters to decroft might not be perfect, they work reasonably effectively and there is a degree of clarity about how tenant crofters can decroft. That is being progressed administratively by the Crofting Commission in good order, to the best of my knowledge. Replicating those procedures for owner-occupiers might not be perfect—it might not be the neatest legislation in the world—but it gives a degree of clarity that both owner-occupiers and tenants will have the same rights.
The bill should address multiple owners of the same croft, as they cannot decroft. Many people have made the point and I have listened to that view. There is an issue relating to the definition of owner-occupier crofters, which is currently outwith the scope of the bill, although I am sure that we can look at it once the bill has been, I hope, enacted. As I said earlier, we intend to engage with stakeholders and take stock of the full range of problems. An 80:20 principle may be at play—probably 20 per cent of the issues that we could identify in existing legislation cause 80 per cent of the problems that we face daily. I hope that by prioritising we can work out which issues we need to take forward and then consider what the best approach to dealing with them is.
I heard members today mentioning issues such as codification and the need for consolidated legislation, or consolidated plus, to take amendments into account. We hope to engage with stakeholders, including the cross-party group on crofting, the Scottish Crofting Federation and the Crofting Commission, on those matters, to see what the most appropriate way of going forward is.
However, as I have made clear, the bill’s scope is deliberately narrow and focused to reflect the problem’s urgency. In my opening remarks, I committed to giving further consideration to other issues that have been raised during the committee’s consultation and will inform Parliament if any legislative steps are to be taken.
On specific points raised in the debate, Alex Fergusson highlighted the inability of multiple owners to decroft. The commission does issue decrofting directions in respect of crofts with multiple owners, but I am sure that the member is aware that, under the existing legislation, decrofting requires the unanimity of those on the croft to act collectively as a landlord. It might not be perfect but at least there is provision for people in that situation to decroft and, obviously, we can consider the issue in due course.
- Rob Gibson:
How many people are in this multiple owner situation and how many are caught up in these decrofting problems? Does that, too, conform to the 80:20 principle?
- Paul Wheelhouse:
Estimates of the numbers involved vary. To pick up Alex Fergusson’s earlier point, I believe that there are between 3,000 and 4,000 owner-occupier crofter crofts and know that the figure of 700 has been bandied about for crofts in multiple ownership. We believe that the actual figure might be slightly higher, at 808, but if it will assist, we can clarify the exact number for the committee and members as we move towards stage 2. The issue is another that falls outwith the scope of the bill but which we recognise needs to be addressed, and I hope that members whose constituents are affected will note that. The bill deliberately has a tight focus to address a key issue and our view is that, unfortunately, any deviation to cover such a substantive issue would not necessarily respect the expedited procedure that is being applied to the bill, on which there is clearly a consensus to address the existing decrofting issue.
I am certainly happy to consider Claudia Beamish’s point about decrofting directions in advance of stage 2 as she suggested. It is a good example of an area where we might be able to have on-going dialogue.
Rob Gibson and Claudia Beamish described the bill as unnecessarily complex. We have considered the drafting issues as closely as possible and think that, as a number of committee witnesses have verified, the bill as drafted achieves its purpose. We are committed to drafting the legislation as plainly and as accessibly as possible and recognise the complexities in dealing with crofting legislation. Nevertheless, I hope that I have clearly explained why this particular drafting has been used and that we want to be as clear as we can about giving parity of treatment to tenants and owner-occupiers.
Tavish Scott fairly asked whether the point should have been picked up in 2010. Obviously, I agree with him, but we are where we are. As Alex Fergusson said, the matter is probably a good indication and measure of the complexity of crofting law. The Scottish Government introduced legislation to address the issue as soon as we possibly could and I welcome the support of members across the chamber for the approach that we have taken.
- Graeme Dey:
We are all driven by the need to address the problem as quickly as possible and allow the lives of these 44 crofters to move forward. Will the minister tell us what work the commission is doing to ensure that it is ready to hit the ground running if and when the bill is enacted, so that the 44 crofters can emerge from their current limbo?
- Paul Wheelhouse:
I am happy to do so. The original estimate of 50 fell to 44 after we requested the commission to do as much as it could to process the applications that it had in hand, short of approving them. In the course of that work, the commission identified that six of the applications did not fit the description of an owner-occupier decrofting application and they are now being processed under a different stream. Applications are at various stages of development; some will be able to go forward almost immediately once the bill is passed while others might take up to eight weeks after royal assent is given, but I hope that the whole backlog will be cleared over the summer. A further 31 applications have been made and returned to the applicants at this stage—we hope that the commission will be able to start on them quickly once royal assent is received. I hope that that clarifies the matter for the member.
Tavish Scott mentioned the case of the crofting couple in Shetland. I am sorry to hear of their difficulties and that the Land Court indicated that they cannot appeal through it against the policy of the commission. As we do not have all the facts of that particular case and it is a live case, I cannot comment on it too much, but I highlight the fact that the 1993 act contains a wide range of appeal opportunities, some of which may apply in their case.
Rhoda Grant mentioned that crofters cannot cultivate crofts with their families as a result of the duty on crofters in the 2010 act. There is nothing in theory to prevent a crofter’s family from assisting the crofter by working the croft, but the crofter must be responsible for ensuring that the duty to cultivate the croft is met. I hope that there may be more scope there than perhaps the member indicates, but if she is willing to write to me about a particular case, I can always undertake to have a look at it.
It is also open to a crofter to apply to the commission to sublet a croft and, since 2011, it has also been open to an owner-occupier to apply to the commission for a short-term let of a croft of up to 10 years.
Nigel Don very fairly raised a point about the transitory provisions in the bill. I reassure him that full consideration was given to the effect of those transitory provisions when developing the proposed legislation. We will continue to consider any points as they arise during the bill process, but I take on board the concern that the member raised and I will ensure that I will take a personal view of that.
Jamie McGrigor commented that further amendments may be required to the bill, with particular reference to Sir Crispin Agnew and Brian Inkster’s comments. We are aware of the drafting concerns, but I hope that in addressing the points that were raised earlier about the particular form of the drafting, I clarified that we picked a form that replicates the provision for tenant crofters and that, therefore, we believe is relatively stable and appears to work in processing applications. We cannot guarantee that there will not be a problem, but in seeking to do it this way, we hope that we have minimised the risk of a problem arising in relation to owner-occupier crofters. However, of course, I will consider any detailed comments that the member has on that.
- The Deputy Presiding Officer:
Minister, I will stop you for a moment. There is an awful lot of chattering going on in the chamber. Could we have some order, please, for the minister, who is making the closing speech of the debate?
- Paul Wheelhouse:
Thank you, Presiding Officer.
- Jamie McGrigor:
The minister was referring to my earlier comments. The point that I made was that his response on bringing forward a consolidation of crofting acts included the minister wanting to see everything working as intended. How will he know when everything is working as intended?
- Paul Wheelhouse:
Certainly, we have taken the approach of trying to minimise the risk in the first place by taking something that is relatively well understood in relation to tenant crofters, but I will of course keep any problems under review.
On speculation, which I think I mentioned earlier, we do not anticipate any additional problems from owner-occupiers using the legislation for speculative purposes—any more so than there would be in relation to tenant crofters—but we will of course keep the matter under review.
Claire Baker, Angus MacDonald and Dave Thompson made some good points around the infrastructure issues—indeed, the issues were noted by Tavish Scott as well when he referred to Angus MacDonald’s point. There are clear differences between the crofting counties and sometimes within the crofting counties and I will certainly bear that in mind during my tenure as minister with responsibility for crofting.
A good point was made about CAP reform and it is clear that not only pillar 1 but pillar 2 are important streams of funding for our crofting communities. Clearly we are, as a Government, making the strongest possible case for a fairer allocation of funding within Europe—and within the United Kingdom.
I am conscious of time, Presiding Officer. I committed in my opening remarks to considering further some of the points that have been raised by members today and by the committee. We must also consider whether there are further unidentified issues that must be resolved, and the options that are available to address those. I will arrange for my officials to progress that work.
I once again thank the committee for the work that it put in at stage 1 to inform the debate. It would appear that the technicalities of crofting are never straightforward, and I know that a number of committee members have been taken aback by the subject’s complexity. I add my name to that list as the new minister with responsibility for crofting.
I thank the stakeholders who have contributed so positively to the process. I reiterate that I have listened to the comments that have been made today, and I will reflect on them before stage 2.
However, I remain convinced that the bill will deliver what is intended. I have no doubt that we all want the issue to be addressed effectively and as quickly as possible. I therefore invite members to support me in agreeing to the principles of the Crofting (Amendment) (Scotland) Bill, so that we can keep on track and move to a detailed consideration of the bill at stage 2 next week.