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One key issue in our investigations and deliberations has been neglect and the new duty that is to be placed on the Crofters Commission to deal with it. How will the commission monitor neglect and absenteeism? How will that be resourced, and how long will it take the commission to deal with some of the issues of neglect?
The Crofters Commission talks about issues of misuse and neglect. It has provided an additional submission for us, which members have received today and which raises concerns. It says that there are 18,000 registered crofts, of which 14,000 are occupied and 8,000 to 10,000 are worked. It states:
We can always reflect on this. As I indicated, the fact is that the development function has been taken away from the commission and we have not reduced its budget or staff resources in any way as a result. That is an important point to note. Also, the absenteeism initiative, which is already under way in advance of the duty coming into play, may in and of itself throw up a number of cases of neglect. The duty will come into play only when the act comes into force, at which point we expect the commission to look seriously at its processes. It will need to look at how it can streamline things and ensure that its work can be done at a reasonable pace. We see no need for it to get additional resources at this stage, although I would never rule out the possibility that that might change. If it does, the Government of the day—whatever its colour—will have to consider the matter.
In the past three years, the commission has dealt with three cases. We are promulgating the possibility that there may be 8,000 to deal with. Would you care to put a figure on what you expect the commission to deal with, based on what is affordable and reasonable, on a year-by-year basis?
I am not in a position to do that today. First, we do not know how many cases of neglect there currently are. We would get that information directly from the commission, but it is clear that at the moment it does not know the figure. Secondly, the commission’s plan will set out its annual expectations. It will be able to report to us annually on whether it is meeting those expectations. The freedom and continuing flexibility that we give the commission to manage its internal processes will allow it to pace its activity in an entirely manageable way. If it finds that initially it sets its expectations too high or too low, we will look to it to adjust those expectations accordingly. Until the number of cases of neglect has been identified, it will be extremely difficult to say how long the process will take and how much it will cost to fix the problem.
You mentioned a couple of times that you are refocusing the work of the Crofters Commission, and that the development function has been transferred to Highlands and Islands Enterprise without any diminution in budget. Do you have an estimate for the cost to the Crofters Commission of the development function? In other words, how much of its budget was spent on development?
About £100,000. We gave £175,000 to HIE, so that is the figure that we are talking about in relation to the budget for staff et cetera.
So you anticipate that there will be some efficiency savings on top of the £175,000.
First, there are plenty of people who want to become crofters, so there is a demand that is not being met. At the moment, people cannot get crofts, even though there are crofts that are either tenanted by absentees or are not being worked. It is not the case that there is a load of crofts lying empty because no one wants them. Across all the crofting counties, there are people who want to become crofters.
No. Loads of people do not bother even to put themselves on to any waiting list, because they know that it is an almost pointless exercise.
If you look at specific reports from places such as Camuscross, you see the numbers of local people who want crofts. There are others from outside the crofting counties who want to get into crofting, and there are people who never bother to register with the commission. I do not know the exact number of people who are officially registered as trying to get a croft, but we know that we could add to that number.
As John Scott suggested, the motivations behind why people want to live in the crofting communities and take on a croft are many and varied. We have certainly picked up that there is unmet demand—although not to the extent that we can put a number on it—and some of the evidence has suggested that the motivation is in the blood.
LFASS is not entirely within my purview, as Liam McArthur probably realises. However, the Cabinet Secretary for Rural Affairs and the Environment has recently made announcements about refocusing it on areas that are considered to be fragile and peripheral. I know that there is a hill farms initiative; I suspect that a number of crofts would also come under that. I dare say that crofters would like more money.
I appreciate that some of what we are discussing may come under owner-occupier and tenant issues. I will leave things at that.
We already have a definition of using the croft, which talks about “purposeful use”. That phrase can encompass conservation use, of course. The officials might not be happy about it, but I have no great objection to saying that purposeful use may include conservation. However, we have to be careful because the moment we start listing things, lawyers tend to look at what has not been listed and say that it must be allowed if we have not listed it. We would have to be very careful about how any such amendment was framed.
The commission will have to endorse the plan. People will not simply be able to decide unilaterally to do that without getting—
At present, owner-occupiers can access crofting agricultural grants, but they are subjected to a means test to which tenant crofters are not subjected. We propose to amend the crofting counties agricultural grant scheme—CCAGS—to treat them equally. That is a definite decision. Similarly, we propose to allow tenants of owner-occupiers on short leases to be treated in the same way as subtenants. We have already decided to do that, but that is in the context of CCAGS, rather than the bill.
If owner-occupiers currently have access and are means tested, what will change?
Yes. They will not be means tested.
Right. That is what I was trying to establish. Will the budget grow correspondingly, or will the increased pressures have to be met from within the existing budget?
That has been agreed.
I am not relaxed about absenteeism and neglect—
I know what you are trying to do, Mr Peacock. You are trying to put words into my mouth. I am being very careful in not allowing you to do that.
As the legal person, she is answerable—
Obviously, the matter is relevant to issues such as voting. What would happen if siblings inherited a croft but there was only one vote?
I remember that.
The problem is the issue of who is responsible for the various bits and pieces—
Heather Wortley’s point was that the existing legislation has not always been clear, from one act to another, about exactly what is meant. Whatever the outcome on voting, there will be only one vote. If you are talking about a sort of joint tenancy, that does not happen between husband and wife and, in my view, it will not happen between siblings. There will still be only one vote.
I think that the answer is yes.
I can provide some clarification. However, it has always been one individual who assumes the role of the crofter. We had a separate debate about the numbers of men and women. A lot of crofters will have been husbands and wives, among whom one chose to be the registered crofter.
We need to move on, and perhaps get some clarification on that.
In most of his evidence, Jim Hunter was being deliberately provocative and apocalyptic in his interpretation of the issues. Subletting happens now, and it is a useful tool in tackling absenteeism. I am not entirely sure why Jim Hunter should feel so strongly about it. Formally or informally, it is what happens in a lot of cases.
We have touched on the issues of absenteeism and neglect. In section 26, the bill sets out the procedures for terminating a tenancy where there is a failure to meet the residency or purposeful use requirements. It would be useful to know what your expectations are for that part of the bill, and whether the crofts that may become available through that procedure would be directed to new entrants to address the unmet demand for crofting tenancies that we discussed earlier.
On farming, we have established that whatever the demand from new entrants, they have not been able to go into it.
My mind is certainly not closed to that. I sound a note of slight caution about the situation that you described, in that people who are desperate to get their hands on croft land are not necessarily first-time crofters. I do not know the circumstances of specific cases, but if it was alleged that a landlord would not let to people who were strongly desirous of becoming crofters or having the land, I would need to know what was in the landlord’s head, because they might be excluding existing crofters from getting more land and favouring people who were not already crofters—I simply do not know. Such stories can be apocryphal. The evidence does not always turn out to be as accurate as people imagined that it was, when it is all mined out.
A related point that was made to us in Shetland was that it is often inby land, rather than common grazing land, that is zoned for housing. One reason that was suggested to us is that it is more energy efficient to build houses on areas of inby land because they are in better locations—they are south facing and get more sun. Those are, of course, exactly the same conditions that make them the better land for farming, so there is a tension. Some people suggested that there might be a presumption against development on inby land and crofts.
Simon Fraser noted difficulties with crofting and succession, which I will roughly explain. When a crofter leaves no will or leaves a will in which the bequest is technically invalid, the procedure is that an application must be made to the commission and intimated in the local press, even when the applicant is the surviving spouse. Mr Fraser considered that to be intrusive and rather unnecessary. Do you intend to address that in the bill?
Paragraph 2 of schedule 2 to the bill will amend the Succession (Scotland) Act 1964 to restrict the circumstances in which the commission’s consent is required to a transfer on intestacy, so the consent procedures and hence the notification procedures will no longer apply to all transfers on intestacy. The procedures will be restricted to what is in effect a relet and will not apply to a transfer to the spouse.
We are trying to establish what the logic—if there was any—might have been, because that is not entirely clear. The answer might simply be that it was one of those times when people started a list on which something was inadvertently included.
That is when the commission became a tribunal or was referred to as a tribunal.
I am probing because we had an exchange last week about the importance and value of the hearings procedure that the commission operates. I understand that hearings take place under the tribunal status, so I am concerned that a threat to the tribunal status might threaten hearings or the status of decisions. I am concerned that the matter has arisen late and I am anxious about the implications.
I, too, am concerned that the issue has arisen late, but we are proactively examining it, having listened to Crispin Agnew’s evidence. We need to consider the original logic—if it existed—and whether it applies. We also need to consider the implications of removing the status. I am trying to say that we are not closed to removing it, but you are right that we must be careful not to take it away superficially and to avoid an unforeseen consequence.
The difference is that normally a landlord would own the building, whereas a crofter might have built his own home. Although the landlord had never had anything to do with the house, which was an improvement by the crofter, he could enter it and insist on inspecting it, even though he had no reasonable right over it whatever.
We have had one complaint. We can come back to the issue.
The issue has not been raised at any point during any of the consultations in respect of crofting legislation. If what Bill Wilson described is happening, I would need to know more about why and in what circumstances, and I would need to know whether there is serious concern about abuse before I made a definitive statement on what should be done.
l do not think that we had legal advice on the matter—I just wanted to correct that. We can discuss the issue further.
Item 2 is ministerial evidence on the Crofting Reform (Scotland) Bill. I welcome the Minister for Environment, Roseanna Cunningham, and her officials from the Scottish Government: Bruce Beveridge, deputy director of the rural communities division; Iain Dewar, bill team leader; and Heather Wortley, solicitor.
The committee’s difficulty is that the bill will impose a statutory duty on the commission. The commission said:
However, currently the commission can act only if there is a complaint, whereas the bill will place it under a statutory duty to deal with neglect whether or not there is a complaint. Under the bill:
There is certainly an issue—
That prompts the question, if we have no expectation of when neglect will be dealt with, why have the duty in primary legislation? Is there no timeframe for dealing with it? I accept that it will take a period of time to address neglect, probably even up to 10 years, but we have expectations about what should be achieved year on year so that we make crofting more attractive and tackle neglect.
With respect, the commission is in the process of dealing with 600 absenteeism cases, so clearly it already knows of a huge number of them. As I said, the absenteeism initiative is under way, so we expect that by the time the duty comes into force, a large part of the current absenteeism hangover will have been dealt with.
You may wave your hands around, but currently we are unable to assess whether we agree with the figure that has been given. I reiterate what I have said: we are not expecting the commission to deal with 4,000, 10,000 or however many cases—we do not know how many there are—within a year or two. Karen Gillon raised the issue of timescales. If I had said that we intended to impose a timescale on the commission, there would have been even more curious questioning about how on earth we would ever be in a position to ensure that the commission complied with it. We are giving the commission some leeway, flexibility and freedom to decide the pace at which and the manner in which it proceeds. It may work on an area-by-area basis.
Last week, I described the financial memorandum—perhaps jocularly—as either a black hole or a blank cheque. You are telling us that you cannot tell us how many cases of neglect you expect there to be and what it will cost to deal with them. I am surprised and dismayed that the issue is being handled in that way.
You obviously have not seen the supplementary evidence from the Crofters Commission. Section 23 of its submission, which provides estimates of the number of cases, is couched in very general terms, such as,
On a slightly different issue, you will be aware that Professor Jim Hunter gave evidence at an early stage, which contained some criticism of the bill. We asked him to come back and suggest alternatives for dealing with absenteeism, and he provided a written submission, in which he suggested that the issue could be tackled with the use of a financial penalty. He suggested, for example, that all crofts should be subject to an annual registration fee, which would be nominal for resident crofters but substantially greater—perhaps £1,200—for absentee crofters. Such a solution would, of course, still require us to define the term “absentee crofter”. What is your reaction to that way of dealing with absenteeism and neglect?
Have you got a number for how many people want to become crofters?
A lot of people want to live in crofting areas, but do lots of people actually want to work crofts? That is the distinction that we need to make: we need to establish whether there are 8,000 to 10,000 people—or the number commensurate with reducing neglect—who want to work those crofts.
Crispin Agnew suggested that an external body such as Scottish Natural Heritage should approve the approach.
I presume that SNH would have to be involved: the minute somebody saw something that they genuinely thought was a rare butterfly for example, SNH would be extremely interested in knowing about it. SNH would be able to identify more clearly what might or might not be on the croft and advise whether we were talking about something that was genuinely rare and required conservation.
Andrew Thin was a bit concerned about the resource implications for SNH if it was required to approve a crofter’s plan for conservation. He suggested something not dissimilar to what you describe, but perhaps his suggestion makes the situation clearer. He proposed that the bill should require crofters to put their crofts to purposeful use and that it should place a statutory duty on the crofting commission to publish and keep up to date guidelines on what it considered to be purposeful use. Would that be a helpful amendment to make it clear that there was no loophole?
It could be in the form of guidance rather than in the bill.
It could be. There would be nothing to prevent us from doing that. The loophole has existed that allowed people to wander off and say that they were doing so for conservation reasons without any requirement for them to give evidence that that was really what was going on. We are now saying that the commission will have to endorse that approach as being legitimate and that, if a crofter wants to do that with their croft, the onus will be on them to establish for the commission that there is a case for conservation. I guess that going around with a book of British butterflies will not be sufficient.
The minister said—I think that these were her words—that a kind of plan would be necessary. Andrew Thin definitely thought that there would need to be a management plan, and any agricultural scheme in which I have ever been involved has required some sort of plan to be approved by the department of agriculture, or whatever it is called nowadays. I am still unclear as to how the Government will make certain that the current loophole is closed.
We have covered that issue sufficiently. We move to owner-occupier crofters.
No—owner-occupiers will be means tested.
So, there are other components of the changes that we propose to CCAGS, in addition to equalising access for tenants and owner-occupiers.
The pragmatic argument is that a number of people have remained tenants because of the system of access to grants, and if the system changes there will be a greater incentive to become an owner-occupier. The underlying concern is that the approach might lead to the free market in crofts to which many people in many parts of the Highlands and Islands are very much opposed. Part of the policy intent of the bill would therefore be defeated. That is the argument.
I want to be clear about your policy position. Are you quite relaxed about movement from a tenancy-based system to more owner occupation, if that is a consequence of the bill?
That was not the question—
The right to buy was brought in by a Labour Government some 35 years ago. That is the legislation that exists in respect of whether crofters can choose to buy. We have decided that we will not interfere with the right-to-buy legislation.
Let us imagine a situation in which the commission is pursuing vigorously an absentee and the individual tries to delay the process by saying, “I want to see if I can get £30,000”—or £40,000 or £50,000—“for this croft.” We may reduce the risk of speculation if we enable the commission to say, “No. You have only a short period of time. After that, we will ensure that the croft is taken over by a tenant.” On the other hand, if the individual can hold up the process indefinitely—
It refers to a “person”.
You are referring to existing legislation.
During the discussions on the Marine (Scotland) Bill, I referred to a statutory instrument that indicated that the singular includes the plural and vice versa, and the masculine includes the feminine and vice versa.
Is the issue of leaving the croft to siblings one that needs to be clarified at a later date? I suspect that you will be unable to give me a quick answer to that.
I think that it is an appropriate tool in tackling absenteeism.
I can see the logic of the proposal, but is there a risk that we could have an individual on rolling, 10-year, short-term leases and none of the long-term security that we expect from crofting tenure?
In the case of a tenant crofter, the commission would make an order terminating the tenancy and declaring the croft vacant. The landowner would then be invited to submit a letting proposal, and it would be for the landowner to decide who was potentially an appropriate tenant. In a sense, the same approach would be taken to owner-occupiers. The commission would declare the croft vacant and invite the owner-occupier to submit a letting proposal. Failure to submit a proposal would result in the commission proactively chasing a letting proposal.
Do you envisage obstacles for new entrants? An issue that has cropped up is financing and viability. The croft entrant scheme was closed to new applications a couple of years ago and Highlands and Islands Enterprise has suggested that it would be beneficial to kick-start the process, perhaps through SRDP funding. Have you considered such ideas, or are you prepared to do so?
The issue of new entrants to crofting—as with new entrants to farming—is of constant concern and we are trying to seek the means to address it as effectively as we can do, although the middle of an economic recession is not the time that we would choose to do so.
It is worth remembering that someone may apply for planning permission to develop on land that they do not own. The simple fact of getting planning permission does not of necessity mean that the development will ever take place.
That is one thing that I would expect the commission to discuss proactively with local authorities and that I would want to discuss when I have everyone around the table. We should be doing what we can to protect the more valuable croft land and ensure that any development that is considered by everybody to be appropriate—depending on what it is, the provision of extra housing can be considered to be extremely important—should take place on non-croft or lower-quality land. Again, that will need to be part of the commission’s proactivity with local authorities and part of the discussion that I have with it about how it proceeds.
I appreciate Simon Fraser’s attempt to use the bill to fix his individual problems. We are considering tidying small aspects, but I am not sure whether the bill will fix the bigger intestacy issue that he raises. I ask Heather Wortley to talk about the technical stuff.
Having heard Crispin Agnew’s evidence, we are considering the position. We will examine that aspect, because what he said was compelling.
Are you referring to the Crofters (Scotland) Act 1955? The status dates from that time.
Let me be clear. Are you saying that you are considering the issue not necessarily with a view to doing away with tribunal status but with a view to establishing whether tribunal status needs to be maintained?
As I said, we must first establish what the logic was to start with.
Are the powers in section 32 to make preconsolidation modifications to enactments on crofting appropriate, given that they appear to allow substantive changes to be made to crofting law in future without full parliamentary scrutiny? The Government has agreed to remove similar powers from the Interpretation and Legislative Reform (Scotland) Bill.
We think that a special case can be made in respect of crofting. Crofting legislation is complex and cumbersome, as we know, and, where appropriate, it should be dealt with in the fashion that is proposed. That view was reiterated during the consultation. I am content that what is proposed is appropriate, given the circumstances of crofting.
That is the current position. If the committee thinks that it is not appropriate, it can make a recommendation in that regard. However, we should be careful, because there might be valid reasons why a landlord required to inspect the house from time to time. For example, the landlord might be worried about an activity that was taking place within the four walls.
I think that I am right in saying that statutory condition 11 provides for a right to enter the croft. I am not sure that that includes houses.
In the case that Bill Wilson mentioned, the issue might be whether it was legitimate for the landlord to require entry to the croft house. He might have done it, but was he entitled to do it?
Apparently he was—that is the legal advice that we have had.
The first thing to do is point out that absenteeism and neglect are linked but not necessarily the same thing. We discussed that issue last week.
I have not had the opportunity to read the commission’s additional paper, so it is a little difficult for me to comment directly on what it said.
I can say a couple of things about that. First, the newly elected commissioners will play a part in identifying areas, because they are most likely to be the people to whom cases of neglect and misuse are reported in the first instance.
Therefore, there is an issue for the committee, in that the commission tells us that there is a problem. The commission’s submission has come late in the day, but it clearly identifies an issue on which it would be worth reflecting.
I return to the costs of neglect, which Karen Gillon raised eloquently. I am concerned to note that in the financial memorandum, under “Costs to the Scottish Government”, the commission has already cost the Government around £3.8 million. A further £100,000 was allocated in 2009 to deal with the problems of absenteeism and neglect. As Karen Gillon said, the information that there may be up to 8,000 cases of neglect to deal with, at £563 a head, came to us late in the day. We can argue about the figure—if there are 8,000 cases, that is £4 million; if there are 4,000, it is £2 million—but nowhere in the financial memorandum is allowance made for a figure on that scale. The committee was surprised to receive that information now, but the Government cannot have been surprised when preparing the bill and the financial memorandum to learn that there might be such costs to deal with. How has a potential cost of £4 million crept up on us and skelped us in the ears?
We have not seen the information to which you refer.
You introduced the bill.
With the greatest respect, this would be an interesting conversation to have if the commission had not existed before and we were setting it up on a blank sheet of paper. However, the commission exists, has processes, has staff and has resources to do the regulatory work on which it is to focus. We have removed the development function specifically so that it will be able to focus its resources entirely on the regulation of crofting; that is what it is being asked to do.
No, and that is evidence of the need to refocus the commission’s work on some of those concerns. Neglect is a big problem, and if it is not identified and addressed it becomes part and parcel of the long-term decline of crofting.
There is an expectation that there will be efficiency savings across the entire Government, as everybody is well aware.
That might be phenomenally difficult to administer. We are trying to focus more on reducing absenteeism so that only those who have a good reason to be absent are absent. If someone has a valid reason for their absence, and they have agreed that with the commission, they will not be penalised. We hope that there will be no absentees at all. We want absenteeism to be managed out of the system by the commission through the absenteeism initiative.
As we have dealt with absenteeism in a fairly substantial way, I want to address neglect.
It is just that you were very definite about there being a lot of people, so I thought that you might have a number.
Where do you draw the line between an occupied croft and a worked croft? The Crofters Commission is definite about it, and there is an important distinction to be made. Some 14,000 of the 18,000 crofts are occupied—which means that 4,000 are not—but that is different from those crofts being worked.
Of course it is.
Working the land means that the crofter or their family works or makes arrangements—with hard labour if that is considered appropriate—so that the croft is either cultivated or put to some other purposeful use. In the crofting counties, you can see crofts being put to all sorts of uses that would not necessarily have been in people’s minds 50 or, much less, 100 years ago. I have spoken to a crofter who has turned his croft into what is, in effect, a small tree nursery, and there are crofters with polytunnels. Those are examples of crofts being put to purposeful use, which does not always mean that the person who is doing the work resides on the croft. Crofts being put to purposeful use is important, and it is important that people can sublet in order to achieve that.
My point was specifically about the SRDP. When we had discussions during the budget process, the figures on SRDP expenditure that the cabinet secretary was able to roll out looked impressive, but when we scratched beneath them, it was clear that a number of big allocations had been made to sizeable projects. Those allocations were doubtless very beneficial, but they have meant that there was less money to go into smaller projects.
I can understand that. That issue is part and parcel of the on-going debate about the uses to which SRDP money is put and whether it would be better focused if it were parcelled out in smaller amounts to smaller ventures more widely across Scotland. However, I cannot debate that in discussing the Crofting Reform (Scotland) Bill; it is a much bigger issue that needs to be dealt with elsewhere.
I refer the minister to section 20, in part 3 of the bill. On page 15, it is proposed that section 5B of the Crofters (Scotland) Act 1993 be substituted. Proposed new section 5B(4) states:
If any crofter saw a rare butterfly on their croft, they would need to contact the commission and talk to it about how the matter would be handled. It would not be enough for a crofter to pop up and say, “No, this isn’t neglect. It’s just me allowing what is happening for conservation purposes.” They would have to show a planned conservation process and that they were not simply turning their back on other activities. The commission would need to be satisfied that what it saw was planned and managed.
I clarify that it is possible for a crofter to refrain from activity at the moment if it is for the purpose of conservation or to preserve the landscape of an area, but there is no requirement to demonstrate that that is planned and managed activity. That is the loophole that exists. In the bill, we tighten up the requirement so that a crofter cannot simply say that they are not doing anything on the croft because they are preserving a certain butterfly’s natural habitat or the landscape; they will have to demonstrate that it is planned and managed activity. If they are able to demonstrate that, the commission will not pursue it any further.
Will that happen by word of mouth? Will somebody go to the commission and say, “This is what I am doing,” or will they have to produce—
The commission will make a decision about how to deal with that aspect of what we are asking it to do. The commission might ask for evidence that something is rare or that there is outstanding natural beauty, and it might ask the person to say how they will look after the area for that purpose. The commission will have to make up its mind about the most appropriate way for a crofter to justify the decision. We are not telling the commission that it must take a certain approach. The commission will develop for itself what it thinks is the most appropriate way of handling the matter. That might or might not include a reference by the commission to SNH, or the commission might ask the crofter to say what information he has had from SNH. The commission can choose which way to do it. However, the commission will be required to satisfy itself that the process is planned and managed. It will not simply turn its back and walk away.
The bill proposes to equalise the responsibilities of owner-occupier crofters with those of tenant crofters. When your officials gave evidence, they indicated that consideration is being given to the potential for equalising rights, so that, for example, access to grants would be equalised. Has that consideration been concluded? Is it the intention to equalise access to grants for owner-occupiers and tenants, or has that still to be resolved?
That is helpful, but will you clarify whether everybody will be means tested?
Owner-occupiers are means tested at present, but tenants are not. The proposal is to treat them equally.
Owner-occupiers will be treated equally with tenant crofters and will not be means tested.
As the minister said, the CCAGS budget is underspent, so there is capacity in it. On the other proposed changes to CCAGS, the Government’s response to the Shucksmith inquiry indicated that it would provide an uplift for new entrants into crofting. If memory serves me right, it is a 10 per cent uplift for new entrants.
That is helpful. I have a question on the principle of equalisation between tenants and owner-occupiers. It is widely, although not universally, held that people currently remain as tenants because of the preferential access to the grant scheme. If that access is to be equalised, there will be less reason for people to remain tenants. That causes concern. For example, the Aiginis grazings committee said:
That might have been a reasonable argument at the time when the right to buy was introduced, but to be honest I am not sure that it is an overwhelming argument for maintaining the distinction. We regard owner-occupiers, as well as tenants, as crofters. All tenants can choose to become owner-occupiers at any time. We were set on that road as soon as the right to buy was introduced.
Let me turn your argument on its head. In my view, if we were trying to maintain tenancies as opposed to owner-occupied crofts we would have to reconsider the whole set-up around the right to buy. I know that some people want the right to buy to be brought to an end, but I am not sure that ending the right to buy would be more popular than any other decision about crofting that we might make.
But, with respect, that was not my question. I think that you said earlier—
No. I am not trying to do that. I think that you already said those words. I simply want to ensure that I have got them clear. You said earlier that the prime concern of the Government was not more people moving from tenancy to owner occupation—
They are exercising the right to buy that a Labour Government gave them and that we have chosen not to interfere with.
Concern about the right to buy relates in part to speculation. The concern is that if more people can buy their crofts, they may be more inclined to speculate on the value of the croft. A more vigorous pursuit of absenteeism may reduce the risk of speculation, but that will depend on how absentees are pursued. What are your thoughts on that? I hope that I have made clear my question.
I am not quite sure where you are coming from.
Let us not forget that the potential for financial reward is what drove some people into owner occupation in the past. People speculated to see what they could get out of a croft. Another part of the bill deals with speculation. It will strengthen the commission’s position in terms of the planning process and decrofting. There is also our intent to deal with the Whitbread loophole. In effect, there is another side of the coin, which may disincentivise those who intend to use owner occupation to realise what has hitherto been seen as a possibility, which is to make a considerable amount of money from the sale of a croft.
The bill proposes pursuing absentee owner-occupiers as well as absentee tenants. For as long as the land remains under crofting tenure, the simple exercise of the right to buy will not absolve someone of their responsibilities; it does not automatically remove the land from crofting tenure. The land remains under that tenure along with the responsibilities that are associated with such tenure. The land is removed from crofting tenure only when it is subsequently decrofted or resumed.
The definition of an “owner-occupier crofter” in the bill suggests that it is intended that that would be an individual, but one can imagine circumstances in which a croft is left to siblings—in other words, the inheritor would not be an individual. I refer to proposed new section 19B(1)(b)(ii) on page 16—don’t you just love these references?
Yes. What happens if a crofter’s successor in title is not an individual but siblings? Which owner-occupier crofter is subject to the duties? Does the owner-occupier have to be a “person”?
Heather Wortley might like to answer that, minister.
My advice is that the legal person does not have to be a human being. [Laughter.] I am being a little cautious in what I say.
So it could be your favourite form of sheep.
No; this is a slightly different issue.
Please explain, Heather.
The legislation is not entirely clear or consistent on when the reference is to one natural legal person and when it is not. We are looking at that. There are instances in which the legislation refers specifically to “a” natural legal person—
Yes. We are looking at the matter in advance of stage 2.
To finish off on that point, I would have thought that partnerships or entities would also need to be accommodated. Groups of people may well take a tenancy.
So you think that the new power is a good idea.
That is not the intention. If that began to emerge, we would probably be slightly concerned. The scenario of rolling 10-year leases is not the intention.
We move on to the reletting of crofts.
They cannot get on the ladder. I am not sure that the situation in crofting is quite as bad as that. There is considerable demand, notwithstanding people’s knowledge of the current circumstances. I would be concerned if I thought that people were being deliberately excluded because they would be new crofters. We must remember that many potential new crofters are people who already live in the crofting communities and want to take over an empty croft. Such people are well aware of the circumstances of crofting.
When we took evidence in Caithness and Sutherland, we heard that appearing desperate to get one’s hands on croft land is the most likely way of being excluded from doing so by landlords who go to some lengths to ensure that vacant tenancies are passed on to someone else. Are you prepared to consider a system in which a list of potential tenants would include new entrants?
We will move on to regulating development on croft land.
Minister, in an answer to Bill Wilson you referred to a proposal to reinstate what was thought to be the law, before the Land Court made a contrary decision, to allow the crofting commission to refuse to decroft land for which planning permission has been granted. It has been suggested to us that there is a slight tension there, because the planning committee, which grants such permission, is democratically elected—the commission will be only partly democratic.
No, we are not really considering that. As is obvious, inadvertent intestacy is not confined to crofters—it is a bigger legal issue. The most important piece of advice for anyone is to ensure that they have made appropriate plans. In such circumstances, it is best to seek legal advice, to ensure that the right thing is done.
If I recall correctly, the point was that although advertising is unnecessary under agricultural law, the relevant crofting law is slightly different from that for other land ownership situations. Tidying some aspects would not be difficult.
Sir Crispin Agnew raised an issue about the commission’s tribunal status, to which the minister referred in last week’s evidence. As I understand it, he argued that because Crown immunity will be removed from the commission, it will no longer be appropriate for the commission to have tribunal status. That raises two questions. Why is Crown immunity being removed? What is the policy logic behind that?
That may be—the legal arguments are intricate. I presume that there was a reason for the commission to have Crown immunity and to be a tribunal. That must have some logic. Do you intend to consider removing that status or will it be kept?
That was helpful.
Schedule 2 to the 1993 act contains a set of standard conditions of croft tenancy. Condition 11 provides a right for landlords to enter crofts to inspect improvements, including buildings, which might include the crofter’s dwelling-place. The crofter might have built their own house, which would have nothing to do with the landlord, but the landlord could insist on their right to enter and inspect the crofter’s home. That seems intrusive. Are you considering exempting the dwelling-place from the right of inspection by landlords?
All landlords pretty much have the right of entry, whether we are talking about crofting or not. I might be wrong about that, and it is a long time since I studied that aspect of law, but my recollection is that most tenancies, crofting or otherwise, include such a clause. How often the right is exercised is a separate matter entirely.
We know of at least one case in which a crofter strongly objected to the landlord entering their house but nonetheless had to leave the house and allow the landlord to enter it.
We have had no communication of any such abuses or complaints. The issue was not raised during the Shucksmith inquiry or the consultation in respect of the bill. I would be concerned to have evidence that it is an issue about which people are genuinely unhappy. No such concern appears to have been expressed.
Really?
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