Subordinate Legislation
Crofting Reform (Scotland) Act 2010 (Commencement No 3, Transitory, Transitional and Savings Provisions) Order 2012 [Draft]
Welcome to the 21st meeting in 2012 of the Rural Affairs, Climate Change and Environment Committee. Members and the public should turn off mobile phones and BlackBerrys; even leaving them in flight mode or on silent will affect the broadcasting system.
Agenda item 1 is consideration of subordinate legislation and will enable members to take evidence from the Minister for Environment and Climate Change on a Scottish statutory instrument that has been laid under affirmative procedure, which means that the Parliament must approve it before the provisions can come into force. Following evidence, the committee will be invited to consider the motion to approve the instrument under agenda item 2.
It is my great pleasure to welcome to the committee Paul Wheelhouse, our new Minister for Environment and Climate Change. I am sure that we will have long and engaging meetings, although I suppose that some people will not want them to last too long. For clarity, perhaps you could introduce us to your officials.
On my left, I have Michael Anderson, who is here to support me on the legal aspects of the order. On my right, I have Richard Frew, who is the Scottish Government’s policy adviser on crofting and who led the work on the Crofting Reform (Scotland) Bill. I am thankful that we have their support.
Would you like to make any introductory remarks?
Yes, I would, convener.
Thank you for the opportunity to address the committee on the Crofting Reform (Scotland) Act 2010 (Commencement No 3, Transitory, Transitional and Savings Provisions) Order 2012. The order will commence all remaining provisions in the 2010 act, primarily covering the new crofting register, which will provide legal certainty on the extent of, and interests in, croft land.
It is simply a commencement order. The time for debating the register was during the bill’s Parliamentary passage. Today, we are simply delivering the will of Parliament in commencing the provisions, so I urge the committee to support the order on that basis.
Commencement orders are not normally subject to any parliamentary procedure but, during the bill’s passage, it was accidentally made subject to affirmative procedure. At the time, business managers agreed that the order should be treated, as far as possible, just as any other commencement order would be, so I present the order on that basis. Nevertheless, it may be helpful for me to touch briefly on its contents.
The order will commence the remaining provisions in three stages. Article 3(1)(a) appoints 30 October 2012 as the commencement date for the provisions that are needed in preparation of the new registration process. Those include establishing the new crofting register and the powers to make subordinate legislation for the register, for example on rules and fees. That date is also appointed for commencing section 52 of the 2010 act, which is a technical order-making power that has been designed to make easier any future consolidation of crofting law. That does not represent a commitment to consolidation; rather, it means that provisions will be commenced whenever a draft bill that will consolidate crofting law is brought before Parliament.
Article 3(1)(b) appoints 30 November 2012 as the commencement date for voluntary registration of croft land. In order to ensure the register remains up to date, provisions requiring registration of subsequent events relating to voluntarily registered croft land will be brought into force on that date, too.
Article 3(1)(c) appoints 30 November 2013 as the date for the coming into force of the remaining provisions. Those require registration of croft land where certain events, such as a regulatory application or a transfer of ownership, occur.
The three stages will deliver the Government’s commitment to providing an opportunity to voluntarily register croft land in the first year of the register’s availability.
I also want to explain the effects of the transitory, transitional and savings provisions in article 4 and schedule 2. Paragraph 1 of schedule 2 details how the provisions that will be brought into force on 30 November 2012 should be interpreted before the requirement to register is introduced on 30 November 2013. That is necessary because it is not always possible to achieve a neat separation between provisions referring to voluntary and mandatory registration. The remainder of schedule 2 will ensure that any applications that are submitted before the mandatory provisions come into force will be allowed to be concluded under the law at the time when the application was received. That will provide fairness in the application process.
The key purpose of the provisions is to ensure the registration process works effectively. As I said, this is simply a commencement order, so I again urge the committee to recommend that the order be approved. I am happy to take any questions.
Thank you, minister.
Welcome to your new post, minister. I was interested to note the provision for group registration when 10 or more applications are submitted from the same township. That is helpful, given that the idea is to facilitate voluntary registration in the first year of the system. Do you anticipate actively promoting group registration? I am sure that it will be financially attractive for a crofter to be part of a group registration.
You are quite right. There is a financial incentive in the form of a lower registration fee. The Government intends that there will be a discount for groups of 10 or more applicants.
Another advantage is that group applicants from a township will have the opportunity to resolve boundary issues among themselves, without recourse to formal procedure. Of course, the applicants’ crofts might be dispersed, with boundaries that are not contiguous, but where boundaries are contiguous, group applicants will be able to agree on the extent of their crofts before applying collectively, which will reduce the likelihood of appeals against registrations. There are procedural as well as financial advantages.
You asked whether we will promote group registration. If the order is approved by Parliament, the Government will publicise the issue and we will do everything that we can do to ensure that crofters are aware that they can benefit from a discounted fee, and to encourage them to take part while the process is voluntary.
I was interested to see that there will be a voluntary approach in the first year of the system. Has anticipated take-up been estimated? That is an important carrot to get mapping properly under way, which I think everyone wants.
As the committee probably knows, we have allocated £100,000 for discounted fees, which allows for a certain volume of activity. At this stage, it is difficult to predict how many crofters will come forward. We will work with the Scottish Crofting Federation to deliver its community registration project, which will help to publicise the facility for group registration. We intend to do everything that we can do to encourage crofters to take advantage of voluntary registration in the first year.
It is for crofters to ensure that they take advantage of Government investment, on a first come, first served basis. I hope that by making crofters aware that a finite amount of money is available for discounted registration fees, we will encourage them to take advantage of the opportunity early, rather than leave registration until later.
You clarified that the £100,000 is a finite amount for discounted registration and that a first come, first served approach will be taken. Has the Government estimated the best-case and worst-case scenarios in relation to costs? What costs might individual crofters face either if they have managed to get some of that money or if they miss out on it?
Jim Hume is correct to raise that matter. I know that an indicative range of anything between £80 and £130 for the fees that might be levied has been given previously. We are working on the assumption that the amount will be £100 or less; that is the latest position and we are confident that we can bring it down to that sort of level. Obviously, there is potentially a 20 per cent discount through the sums that are available for discounted fees. That may not be a large discount on the fee in absolute terms, but it is proportionately quite substantial. We think that that is a reasonable level, but we still have to finalise the figure.
Do you envisage further fees in years to come for people to state after land has been registered that they still own it or have access to it? Will there be a one-off payment unless the croft changes hands in the future?
Exactly. There is an opportunity for the crofter to get a legal security in the new register and to resolve any potential disputes about their croft’s boundary. Unless there is any change to the croft through a new registration or a new application that affects its registration, there will be no need to charge additional fees in the future to renew the registration, for example. It is a one-off cost. If nothing changes on the croft, there will be no reason to seek a further charge from the crofter.
You mentioned resolving any disputes. Do you envisage cases in which disputes may come to the fore because of divisions and lines?
No. The new register offers an opportunity for definitive registration of where croft land is. Obviously, there will be a period of nine months in which a third party could appeal after a croft is registered. There is potential for a dispute over the registration at that point, but assuming that no appeal is made during that period, the land will be registered to the crofter, who will therefore have a degree of certainty about the land for which they have responsibility.
It is worth stating that we have worked closely with the Registers of Scotland to ensure that the cost is kept to a minimum. That is why we are confident that the figure will be lower than was originally suggested.
Obviously, there is the potential for boundary disputes in the future, but we encourage crofters to work together before an application is submitted, where that is possible. As I have said, another advantage of the group application process is that it can eliminate any potential neighbour disputes about croft boundaries.
I hope that that helps.
I welcome Paul Wheelhouse to his new post and wish him well in it.
I want to ask a brief question about the implications for Registers of Scotland. A number of recent constituency issues suggest that there is a considerable backlog in Registers of Scotland. I have one case involving a fairly simple piece of documentation that relates to land transfer, which has taken more than six years and still has not been finished. I know that it falls to Registers of Scotland to establish and maintain the register. Does the Government envisage that extra staff and resources will be needed in Registers of Scotland? If not, what impact is there likely to be on what appears to be an existing backlog in its workload?
We will certainly review uptake of registration. The advantage of the voluntary opportunities in the first year is that we will be given the chance to see what numbers come forward. We propose to monitor the numbers at regular intervals of six and nine months and thereafter to take account of what is happening.
We will charge a fee to reflect the additional costs that Registers of Scotland faces in adapting to take on the additional responsibility. I know that there has been commentary on charging a fee at all, but it reflects the costs to Registers of Scotland. We have worked with it to keep the fee down, and we are negotiating with it on the level of resource that will be needed. It has certainly indicated that it is able to keep the register with its existing staff complement, but obviously we will keep that under review and, if there are any resource implications, we will reflect on them.
10:30
With respect, I understand that, but will you undertake to ensure that Registers of Scotland will be able to do that without any impact on its existing workload that might delay it even further?
Registers of Scotland tells us that it is confident that it can cope with the work without its having any impact on staffing, but we will come back to the committee, if need be, with a more definitive statement. We will continue to monitor the situation.
From my previous life as a conveyancing lawyer, I know that cases in which registration takes years are very much the exception, and usually have to do with particular circumstances such as difficulties with the Ordnance Survey map. There is not necessarily a direct correlation, because whatever is going on at Registers of Scotland, there will always be the odd application for registration that will take years because of the particular circumstances to do with that case.
The relevance of my question still applies, convener, but I am grateful for that useful advice.
That is helpful.
Good morning, minister. To pick up on Annabelle Ewing’s earlier point about group registrations, would there be any scope for reducing the figure of 10 in certain exceptions, given that there may be townships of fewer than 10 with crofts that may wish to make a group registration?
I will bring in Richard Frew to answer that.
Richard Frew (Scottish Government)
That point was considered by officials and key stakeholders at an early stage, when the draft bill was produced. We are currently preparing the subordinate legislation that will cover registration.
It is a matter of scale. I take the point that smaller communities may wish to register, but the whole purpose of group registration is to set it at a level at which it would benefit a number of crofters. It may well disadvantage smaller communities to an extent, but there is nothing to prevent them from working together, although I appreciate that they might not get the fee reduction.
Can you remind the committee about the pilot study that was undertaken at Badrallach and Little Loch Broom? It might be useful, so that people realise how the process has been effected. I understand that it was done with the help of a facilitator.
Again, I will ask Richard Frew to address that.
I am aware of the Badrallach case, and I look forward to that particular group submitting collective registration in order to gain the benefits that the minister has outlined.
It really is for communities themselves to engage in the process. The issue of mediation—which is what I think you are getting at—was raised with us by the SCF.
We think that the £100,000 that the Government is putting in can best be spent on directly benefiting crofters rather than on a mediation service. That is not to say that we do not recognise the benefits of such a service, but we are trying, through the policy, to encourage crofters to work together for the benefit of crofting in the longer term.
Thank you. To put that in a wider context, it is clear that we are talking about costs that are lower than the price of a television licence, and I think that many members will welcome that.
Are there any further questions?
I notice that the 2010 act provides for registration of common grazings, and that the Government has provided an additional £100,000 towards that.
Are there any plans to have a register for smallholdings? I know that I am going off on a tangent here.
There are no plans at present that I am aware of. That is not covered by the commencement order, but Parliament could make representations on it.
We will end the questions. I thank the minister and his officials.
Agenda item 2 is consideration of motion S4M-04276.
Motion moved,
That the Rural Affairs, Climate Change and Environment Committee recommends that the Crofting Reform (Scotland) Act 2010 (Commencement No. 3, Transitory, Transitional and Savings Provisions) Order 2012 [draft] be approved.—[Paul Wheelhouse.]
Motion agreed to.
I thank the minister, and we look forward to seeing him again soon.
10:36
Meeting suspended.
10:42
On resuming—