Official Report 483KB pdf
Agenda item 4 is stage 2 of the Community Empowerment (Scotland) Bill. We will take evidence on the Government’s amendments on the crofting community right to buy. We are joined by a variety of stakeholders. I ask everyone to introduce themselves.
I am a retired crofting lawyer. Recently, I have been the co-administrator of what we call the crofting law sump, collecting the problems of crofting law and trying to find solutions through the crofting law group.
I am the land manager for the North Harris Trust.
I am an MSP for South Scotland and shadow minister for environment and climate change.
I am a solicitor in private practice on the Isle of Skye. I am here to represent the Law of Society of Scotland, and I sit on its rural affairs committee.
I am the MSP for Skye, Lochaber and Badenoch.
I am the MSP for Argyll and Bute.
I am the MSP for Galloway and West Dumfries, and crofting law is a complete mystery to me.
I do policy work for Community Land Scotland.
I am an MSP for South Scotland.
I am a crofter from Sutherland and the chairman of the Highlands and Islands committee of NFU Scotland.
I am the MSP for Falkirk East, which is well known for its lack of crofts.
For the time being.
I am the convener of the Crofting Commission, which is the regulator of crofting.
I am the MSP for Angus South.
I am convener of the committee and the MSP for Caithness, Sutherland and Ross, where there is a lot of crofting of various intensities and kinds.
Thank you for coming to this morning’s meeting. We have many questions, but we do not need everyone to answer every question in order to allow us to reach the core of the matters under debate.
Have stakeholders been consulted enough about what is proposed? Are you satisfied that the consultation has been sufficient in terms of the amendments?
We are very satisfied. We take the view that the matter goes back to a predecessor committee to the Rural Affairs, Climate Change and Environment Committee that commissioned independent research on the Land Reform (Scotland) Act 2003. Out of that came the issues around the need for change that are now being consulted on.
It would have been better if the amendments to part 3 of the 2003 act had been part of the original Community Empowerment (Scotland) Bill; that is not the case, but we are encouraged that the Government is trying to make the changes. I encourage the committee to be generally quite relaxed about the changes, because they are heading in the right direction.
Our members have been consulted by the Scottish Government through a written consultation and a series of meetings to which they were invited and at which they had the opportunity to have their say. In that sense, we are happy with what has happened.
I was involved in the post-legislative report, looking specifically at crofting matters. The matters that were raised are being dealt with.
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We have started with general approval for the level of consultation. Graeme Dey will ask about the amendments.
Just to tease this out a little bit, I want to be clear that the witnesses feel that the amendments fully and appropriately address the concerns that were raised during the consultation process. To what extent will the proposed changes allow more crofting communities to exercise their right to buy? Are further amendments needed—perhaps to create a mediation service, which has been mentioned?
What about the experience in North Harris? You got the right to buy and have applied it.
The North Harris Trust has been with the community since 2003. The purchase did not go through as a community right to buy; it was a voluntary effort.
We are, on the whole, happy with the amendments. We feel that they are fair and that the consultation has gone very well.
On the second point about mediation services, Community Land Scotland has been arguing for some time that it would be helpful to put it beyond doubt that Scottish ministers have the power to facilitate mediation between potential purchasers and owners. That is born of bitter experience of what has happened with a number of purchases. From conversations with some of the agencies that support community groups, we are aware that they feel that although they would like mediation to be facilitated, they do not have the legal power to do so. It is not clear to me whether Scottish ministers have that legal power, either. I hoped that the provisions would contain some simple power to enable ministers to facilitate mediation when it is requested by either party and both parties agree. That would be helpful because it would clarify the law.
We are anxious about the matter because we do not want communities to have to resort on every occasion to complex law. It would be much more satisfactory if there could be negotiated settlements around an aspiration to buy land. There is quite a lot of evidence supporting that approach, particularly in the Western Isles. We need a framework for that to happen. For a good number of months, our chairman has been involved in trying to resolve the Pairc situation by bringing the parties together at their request. Frankly, although that has been helpful in taking the process forward, we are not skilled in mediation techniques and it is too haphazard to leave it to chance that one individual will be acceptable to both parties. It would be far better to have some kind of clear power. That would help the whole situation.
On Graeme Dey’s first point about the scope of the amendments and whether there is anything else we want, I guess that there is always something else, but we are happy with what we have because it identifies the core issues. That said, once we get into the detail, the amendments contain quite a lot of implications that might be worth teasing out today. There is nothing specific that we are looking for at this stage, but there are fine details that we need to thrash out.
I support what Peter Peacock said on mediation. We need somebody who is able to mediate because in the long run it will save us from a lot of arguments.
I also agree that quite a few details in the amendments need to be teased out.
Should the remit of the Scottish mediation service be looked at with regard to agricultural matters, or would that be too formalised a process?
I am not familiar with that service. However, as it happens, on Friday I met somebody in Edinburgh who is involved with what appears to be a kind of marketplace for mediation services. There are people who are highly skilled in that sort of thing.
If ministers had the power to facilitate mediation, they could bring in whatever services were appropriate. If bringing mediation skills to bear on a situation requires changing the terms or remit of an existing statutory mediation system, so be it.
You have made a good point. It is clear that mediation skills exist, but does the knowledge base to mediate in the crofting sphere exist?
It is said that only three people understand crofting law—one is mad, one is dead and nobody can remember who the third one is. Actually, to be fair, that was said of local government finance.
I am not sure about crofting mediation skills, but in any situation where there is a dispute between two parties, mediators can bring to bear their skills irrespective of the technical detail that is associated with the subject. No doubt, however, technical expertise could be brought in. I know that in the Pairc case there is a huge amount of technical detail and people have had to bring in lawyers and others to help with that. However, the key thing is actually to get the parties together and talking in order to resolve difficulties and create a satisfactory outcome.
The witnesses will know this, but for the record I point out that at present a crofting community body must be a company limited by guarantee. The amendment to section 71 of the Land Reform (Scotland) Act 2003 will broaden the base of legal organisations to include Scottish charitable incorporated organisations and community benefit companies, or bencoms, and any other body “as may be prescribed”, subject to certain requirements.
The explanatory note on the amendments states that part 3 of the 2003 act will be brought
“into alignment with proposed amendments to Part 2 (community right-to-buy)”
and with proposed new part 3A, which is on the right to buy abandoned or neglected land without a willing seller. We are certainly getting into the detail here, but it is important to do so.
Do the amendments to the crofting community bodies section in the 2003 act—section 71—provide enough protection against personal liability for the trustees of such bodies? Will they provide reassurance for those who enter contracts with those bodies? More broadly, will the amendments provide flexibility for the situations that a crofting community body might experience?
I have experience of being a member of a community trust that went through a registration of interest under part 2 of the 2003 act. The added flexibility will be useful. Different kinds of bodies are being created, such as community interest companies. It can take quite a long time to set up an SCIO, and a body cannot officially become one until the Office of the Scottish Charity Regulator has approved and registered it . Therefore, it is good to have that flexibility. Any director who takes on a position with a community trust must understand their responsibilities, but there is a good support system through, for example, Highlands and Islands Enterprise’s land unit, which advises people on their responsibilities. I think that the proposals look robust and have flexibility.
I agree that the proposals look fairly robust. We must ensure that, whatever type of bodies are set up, we maintain a majority of crofters’ representatives on the boards of those organisations.
There are no further points on that, I hope. If there are, the witnesses should speak up now.
Are we on the specifics of SCIOs and bencoms? There is a point of detail that arises, so perhaps I could come on to that.
Please do.
There is an issue in the amendments about which crofters will count in all this related to whether they are on the crofting register.
We will come on to that.
Fine. I will leave that for now.
Proposed new section 71(3)(c) of the 2003 act, which will be inserted by one of the stage 2 amendments, will repeal the requirement for crofting community bodies to audit their accounts formally, but the explanatory note on the amendment says that they will still be required to
“make proper arrangements for ... financial management”.
Do the witnesses welcome the removal of the requirement for accounts to be audited?
Witnesses indicated agreement.
I see Peter Peacock, Susan Walker and Gordon Cumming nodding, Jim, so we should take that as read.
That is absolutely fine. As I have said, the explanatory note also makes it clear that bodies will be required to
“make proper arrangements for ... financial management”.
I would be interested to find out how the witnesses think that transparency can be developed to ensure that any investment is being made properly and that there are adequate safeguards in that respect.
Again, from the point of view of a body that was set up to be compliant with part 2 of the 2003 act, I point out that that act requires us to have our accounts independently scrutinised. Moreover, all registered charities must produce annual accounts. It seems, therefore, that it would be inconsistent to treat part 3 bodies differently from part 2 bodies; whatever is required for part 2 bodies should also be required for part 3 bodies. In that respect, I think that the amendment to which Jim Hume referred will equalise things.
Okay.
Thank you very much for that. Alex Fergusson has some questions about amending the definition of “crofting community”.
I must apologise for interrupting Peter Peacock in full flow earlier, but I have spent two days trying to get my head round this question and I did not want my moment of glory to be taken away from me.
We will find out now how well you have managed to get your head round it.
You would have thought that to a mere lowlander like me the definition of a crofting community would be quite a simple matter. Clearly, however, it is not. My understanding—I think that this was the point that Peter Peacock was referring to—is that proposed new section 71(7) of the 2003 act will amend the definition to capture more crofters who are excluded from the existing legislation, and that it is recognised that the existing definition of “crofting community” might not include all those who consider themselves to be part of that community. I therefore understand the desire to amend the definition to bring in more people.
However, as Peter Peacock pointed out—and, again, as I understand it—some owner-occupier crofters are registered on Registers of Scotland’s crofting register and the amendment will not cover those on the Crofting Commission’s register of crofts. I do not want to get into the question of why on earth there are two registers, but various people have in evidence to the committee highlighted the difficulties that might be created in trying to bring the registers together or simplifying the terminology. My question for anyone who wishes to comment is whether you foresee problems arising from the sole use of Registers of Scotland’s crofting register and, if so, how they might be remedied.
Derek Flyn?
Thank you. [Laughter.]
The term “crofting community” poses a number of problems. For a start, real conflict has emerged from its being defined differently in two pieces of legislation. We must look to resolve that situation, but I do not think that such a resolution will be found either in this bill or in the Crofters (Scotland) Act 1993.
The point that owner-occupier crofters are covered only if they have been entered in the crofting register but not in the register of crofts is, I think, false. Those who are on the register of crofts should also be covered, because in order to become an owner-occupier crofter one must intimate one’s position to the Crofting Commission. Having done so, a person would, in fact, be entered in the commission’s register of crofts as an owner-occupier crofter. The problem, however, is that the legislation does not actually say that.
Under the Crofters (Scotland) Act 1993, to become an owner-occupier crofter the person has to tell the Crofting Commission, which holds that information, and the one place that it would hold the information is in the register of crofts, so the bill should make reference not only to the crofting register but to the register of crofts.
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So you believe that a combination of registers is the right way to approach the issue, rather than the sole use of one register?
Yes, because putting something into the crofting register is still an unnecessary hurdle, and it would produce an unnecessary distinction between one set of owner-occupier crofters and another.
Can I clarify something? Presumably, because we are moving to a map-based register, the Crofting Commission register as it is at the moment, which is just a list, will eventually become redundant.
I look forward to that. [Laughter.]
Just for clarity.
We would strongly support the general point that Derek Flyn made. It does not seem clear at all why owner-occupiers who are in the register of crofts should not be counted for that purpose. There is probably some deep technicality here, because the implication in the explanatory notes is that ministers are taking a regulatory power and might change things in due course. Perhaps they can explain that. The outcome ought to be that both registers, for both tenants and owner-occupiers, ought to be in play.
The Crofters (Scotland) Act 1993 says that the commission has a duty to keep a register of crofts, but it states that we have only to list tenants. No duty to keep a register of owner-occupier crofters has been added. As Derek Flyn said, those crofters have a duty to tell us, and we certainly do register them in the register of crofts. There are something like 800 crofters listed on the crofting register, but we have over 13,000 crofters, so if you used only the crofting register, you would be severely limiting the number of owner-occupier crofters who would ever be registered as crofters.
My recollection is that, when those matters were dealt with in the last crofting act, it was estimated that it could take up to 80 years for the crofting register to be complete. That is why you need the register of crofts as well.
Hence Derek Flyn’s helpful remark. Alex Fergusson may continue.
That is me. I am exhausted.
All right. We move on to the lovely subject of croft land mapping.
Before we move on, I have another point on the definition of the crofting community. The proposals appear to have removed the residency requirement and I wonder why that is the case and whether there could be situations in which absentee crofters influence the outcomes for their community, despite the fact that they do not live there. I do not understand well enough how the ballot works. Is there a ballot of all crofters, or do all crofters have to comply with the residency requirement that is general upon the whole community? If there is a ballot of all crofters, absentee crofters could influence the outcome for a community.
Indeed. In the Crofting Commission’s submission to the consultation, you raised the question of the 32km rule. Are there particular words that you think should be amended in the Community Empowerment (Scotland) Bill to clarify that point about absentees?
The 2003 act referred to a distance of more than 16km, but that was changed by the 2010 act. I wondered why that had been removed. As I say, I do not understand enough about the ballot arrangements, but if the arrangement is that all crofters are balloted, it is important that that element be reintroduced.
The point is that absentees should not control what is happening on the land and we should bring the land reform measurement of 16km into line with the previous act’s limit of 32km.
We can ask the minister about that and clarify the point.
We move on to the proposed amendments to section 73 of the 2003 act, on croft land mapping. Do you agree that the suggested removal of the detailed mapping requirements will make mapping simpler? There is a problem in balancing the mapping requirements with facilitating the crofting community right to buy. It is proposed to repeal the requirement to map dykes, ditches and that sort of thing.
The way I look at it is that, at the point at which someone is trying to buy something, we are talking about a cadastral map and not about the detailed map that is required for gaining ownership. Can we find a way to explain why only a simplified form of mapping is required in the first instance?
The transfer of ownership of a Highland crofting estate is a massive problem because it tends to be a jigsaw puzzle with lots of pieces removed. Under the sasine system, it was merely a transfer of a bundle of writs, but now it is all to be mapped. No Highland estate would transfer to another landlord showing every pipe, every dyke and so on, so it is quite improper that a community should be asked to map those things.
The requirement should be at the level required by Registers of Scotland to change ownership from one person to another. At that stage, it has to check that the sasines title is good enough to go on to the land register. If we can get a plan to that quality, it seems that that would be sufficient for a crofting community buyout.
I support what Derek Flyn said. To have an overcomplicated map and to have to work out in the first instance where all the dykes, watercourses and things were would be cumbersome for the community.
This is the single biggest prize of the proposed changes. We know from experience that the process is tortuous. It is virtually impossible to meet, and it leaves open all sorts of opportunities for challenge on fine technical detail, such as that someone did not get a dyke or a sewer exactly right, or whatever. The removal of the requirement is important and it is welcome. It will help to simplify matters.
However, other matters are proposed to be introduced to section 73, and you might want to move on to discuss those. There are other, equally onerous requirements in the form that has to be filled in.
The submission from Scottish Land & Estates suggests that it is not unduly onerous to detail things such as pipes. I say for the record that, unfortunately, Scottish Land & Estates could not be with us on the panel today, but it believes that the provision should remain the same. It seems to me that the evidence from people here is that, at the stage of applying—
I do not know this, but I suspect that, originally, this was picked up from the set of arrangements for compulsory purchase that would apply to urban areas. If we are talking about a site that is the size of this room, it would be possible to identify sewers, drains and so on, but if we are talking about a 40,000 acre crofting estate where there is dispute that goes back for generations about where boundaries between crofts are and the topography has changed around dykes and so on, the requirements become virtually impossible to meet.
If we want to make progress, it is essential that we remove the requirements, and I am glad that that is what the Government is proposing.
We need requirements to be set out in regulations in a way that ensures that a fair balance is struck between the rights of landowners and the rights of the crofting communities. On that basis, do you want to develop the other point that you made? I will then bring in Mike Russell.
I was referring to evidence that was submitted by John Randall from the Pairc Trust, who is the only human being who has been through all of this, so he understands it. He pointed to the requirement about sewers, pipes, drains and so on, which we have just discussed, but he also pointed out that the applicant has to fill in a prescribed form.
That form requires other things, such as the inclusion of a list of all postcodes within Ordnance Survey 1km grid squares and a full list of all those eligible to vote in the ballot, including distance from relevant townships and so on. That is contained in the regulation. I know that that is not strictly speaking a subject for your committee’s consideration, but if we are going to simplify this, we need to address those things in the regulation.
We mentioned that issue in our stage 1 report. That is one thing that we have picked up already.
I want to echo a point that Derek Flyn made, because it is something that we need to reflect on and use more widely across the consideration of the bill. There is a danger in the bill of constantly reinventing the wheel—of creating another way of doing things. If it is suitable for the registers to have the definition and mapping of the croft in such a way that the title can be transferred, we should not invent another way of doing it, because the two will be incompatible. It may produce great work for lawyers at various stages, but it will be incompatible with the ease with which we allow land to be transferred, which is what the bill is about. It is extremely important that we have a single standard, and if a standard exists then that is the standard by which we should continue to operate, unless there is a problem with it.
I have been involved in this issue over a long period and I remember a dispute in Benbecula, which is probably still going on, which originated from the fact that a line on the map was drawn with a pen that was too thick. Derek Flyn remembers the case, I can see; there are probably others. It is really important that we have simplicity in this.
We have no other comments at the moment. Peter Peacock, do go on.
New requirements are being added, as well as deletions being made. Proposed section 73(5ZA) of the 2003 act will require the identification of
“the owner of the land ... any creditor in a standard security over the land ... the tenant of any tenancy of land over which the tenant has an interest”
and
“the person entitled to any sporting interests”.
That is a very onerous requirement and there is a real danger that although the bill will remove onerous requirements on mapping it will introduce others of a different kind. It is not clear to me why that requirement is needed. I do not think that it would be required in a private sale, so it is not clear to me why it should be required in a sale to a crofting community body. I want to flag that up to the committee.
This morning I received a couple of emails from members of Community Land Scotland who are in crofting communities and they reckon that the requirement would be very difficult to meet. I will pass those on to the committee so that you have that concern in writing. In several respects, we think that the requirement is very onerous and I wanted to alert the committee to that. We would rather not see that requirement; it is not clear why it is required now when it was not before.
Obviously, we need to explore ministerial discretion or the exact reason why that requirement is there.
Can I pursue that issue with other witnesses, to get further clarity on it? Peter Peacock’s point is very important: if it is not possible for those attempting a buy-out to identify a creditor in a standard security over the land, which I suspect could be difficult, or everybody who has sporting interests in the land, then the burden falls on those attempting the buy-out, as opposed to those who are selling. What are witnesses’ views on that? It seems to be a major obstacle and one that could derail potential purchases.
This is knowledge that should be in the hands of the owner of the land. Identifying the owner of the land is one of the requirements, but in a normal system would you expect a purchaser to find out all about creditors and tenants? You would expect that information to be provided. At worst, you should leave the purchaser to find out only what is available on public registers.
Could the burden not be put on the owner of the land to provide that information? That seems perfectly feasible.
That seems perfectly normal.
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One of our members has this morning given me an example of a situation in which it was not possible to identify the owner to try to get that information. In the example that I have been given, four owners were listed but three of them were fictitious. It turned out that it was a front for a company laundering money, or something to that effect—they were unsavoury characters, if I can put it that way. You would fall at the first hurdle, because you could not identify the owner, let alone meet the other criteria.
We should not underestimate how difficult it is to meet the requirement. It could be made clear that, if the requirement were to remain that a community use their best endeavours to try to identify them, it should not prevent an application from proceeding if it could not find them. It is important to tease this out.
So the provision requires amendment, either to put the burden on the owner and/or to create circumstances in which the best endeavour of the purchaser would be required, but there is acknowledgement that there might be circumstances in which it would not be possible to find the information. Is that what we are saying?
I think so.
You do not want to go with “best endeavours”; you want only “reasonable endeavours”. You may want to further refine the provision so that after
“the owner of the land ... any creditor in a standard security over the land”
it continues “as may be disclosed in either the register of sasines or the land register of Scotland”, in order to lock down who should be within the public knowledge and avoid the fraudsters.
I am always delighted to get free legal advice. That is splendid; thank you very much.
That point has been well made.
I have an additional point. I agree with everything that has been said, and our submission says that the provision should be “reasonable endeavours” and that it should cover only those things already on the public record. It is important not to underestimate the extent to which the requirement could create a loophole for a landlord, as they could set up a private arrangement with a relative and it could then be said that, as the community had failed to list that person in their application, their application should fail.
I will make one strong point. Crofting is different and crofting law is different. It is an area in which landlords do not have to do anything. Putting the duty on the landlord to produce information would mean that we would make no progress at all. We have to consider that the landlord might be a company registered in Andorra that never replies to any correspondence. If there is to be a duty to provide information, it can be only that which can be reasonably acquired and it must be from public registers. Those who have rights that are listed should have them registered somewhere. Otherwise, they cannot be identified.
So, what Duncan Burd said about “reasonable endeavours” applies to what is on the public register. I think that that point is clear.
Angus MacDonald has questions on public notice of application, which is an interesting issue on the ground.
I will briefly explore section 73 of the 2003 act on the public notice of application. The proposed new section 73(4) replaces the requirement to advertise an application in the Edinburgh Gazette and a local newspaper in the area. The explanatory note states that the
“amendment provides greater flexibility and allows more appropriate forms of advertisement to be used according to the individual circumstances of the case.”
I presume that the provision is welcome, given the burden that—as we have already heard—exists on crofters with regard to various public notices. Is everyone content with the amendment? I see that you are all nodding.
Let us move on to the identification of owner, tenants and certain creditors. Mike Russell has a question.
Sorry. I have just asked my question.
I think that we have probably covered the issue.
Yes—I think that we have covered it.
It is the same point.
If we are happy that there are no other aspects that we should ask about, we will move on to the ballot procedure. Sarah Boyack has some questions.
I will explore the issues around section 75. The section lets ministers make regulations in relation to the conduct of the ballot, which it is anticipated will be undertaken by the crofting community body. The explanatory note sets out how that might work and includes the suggestion that
“the crofting community body ... is liable for the cost of the ballot, and that ... in certain circumstances”
it might
“seek reimbursement of the cost of conducting the ballot”
from ministers, who will be given quite a degree of flexibility in the procedures. I have looked at responses to what is proposed and found a number of different views about the requirement to have a ballot: some are quite happy about it, but others are not. Is it strictly necessary to require a ballot? Malcolm Combe suggested in his evidence that it is not, given the “property” provision of the European convention on human rights. He suggests that that point was confirmed by Lord President Gill in the recent Pairc case. So, there is a question about the requirement to have a ballot. Malcolm Combe believes that the requirement for a ballot would make the act more bureaucratic and therefore make it harder for a community to benefit from the act’s provisions and he suggests that we should consider that point “very carefully”. I am keen to get the witnesses’ views on that.
Further, should the ballot provisions be different for other community groups that want to buy land? Is there a reason why the provisions need to be different and we need to have different legislation? I am really keen to get witnesses’ views on that, because we have had quite a range of views on the issue.
I will take first the question whether the ballot is necessary. We think that ballots are an important part of the process because they confirm that there is community assent to a proposition. Perhaps Malcolm Combe’s point is on whether a ballot is required legally. Pragmatically, it would be very difficult for a community not to have a ballot. How could they otherwise prove that there was assent to the proposition to purchase land? We think that the ballot is a necessary and important part of establishing that there is such assent.
Requiring a ballot means that there will have to be dialogue within a community to persuade people that the arguments for purchase are strong, the business case is strong and so on. We think that the ballot is an important aspect that we would not wish to see removed. That said, it is not clear to us why what is proposed in part 2, whereby the Scottish Government would now take responsibility for organising the ballot and paying for it, does not exist in part 3. It is not clear why there should be that distinction.
I accept that what the Scottish Government is proposing by way of allowing a crofting community to apply to have its costs met is a helpful flexibility compared with where we are at present, so to that extent I welcome what is proposed. However, that does not overtake the rather fundamental question why crofting communities should be different from others in that respect.
When we are getting into a part 3 purchase, we are talking about the potential of expropriating land against the wishes of the seller. It seems to me that in those circumstances it must be very clear that the conduct of any ballot that might help precipitate that action is seen to be above board. It therefore seems to me that the Government taking responsibility for organising that instead of the community would help to remove any potential dispute around the ballot not being conducted properly. I think that it is a question of conduct and propriety, and assuring people that the conduct is appropriate. However, there is also the question why part 2 would have a different set of arrangements from part 3—that does not seem right to me.
I fully support what Peter Peacock says. We, too, suggest that the ballot provision is brought into line with that for the community right to buy. A ballot shows that support is there for a buy-out when there is not a willing seller.
f
Are there any further points?
I want to tease things out a bit more. I accept that holding a ballot is a good, clear principle to demonstrate that there is genuine community support. However, I wonder why crofting communities would have to pay to conduct a ballot. The proposed amendment specifies that the crofting community group might seek reimbursement in some circumstances, and I am trying to think what those circumstances would be. It would be much clearer just to have the provision that a ballot should be properly conducted so that everyone would know that a standard and a good principle were being applied—I can see the point about propriety.
If the ministers do not want to change the amendment, I would like to tease out what the circumstances would be that would allow the ballot to be paid for for some groups but not for others. A new set of tests seems to be being introduced, and I cannot see why that would be done.
I agree with all that. It is not clear to me why people would be treated differently. When we are coming to some sort of democratic expression, it is important that the rules are applied consistently. Given that the Government is accepting responsibility for the ballots under part 2, I think that it should apply that responsibility equally to part 3. That would seem to me to have everything to commend it.
That will be one of our questions for the minister next week, without a doubt.
We move on to the right to buy by only one crofting community body. Has there been conflict in crofting communities between more than one body so far?
Not in our experience.
There has been in our experience.
If there has been, has conflict been widespread?
I believe that it was in Melness, or somewhere around that area; one body applied to buy and then another body came in with an overlapping application.
It has happened, so perhaps somebody in the Government is alert to the potential that it could happen elsewhere.
Dave Thompson has a question on reference to the Land Court.
It is a small point concerning what the Law Society’s submission said about the list of persons who have a right to refer a question to the Land Court. The suggested amendments cover three of those persons: the owner entitled to sporting interests, the tenant and any other person entitled to sporting interests. The Law Society suggested that a
“creditor in a standard security”
in relation to the land should also have the right of reference.
When we took evidence from Malcolm Combe, he suggested that that might not always be a good thing. I am not sure when the Law Society made its submission, so I seek a bit of clarity from Duncan Burd on whether the society still feels strongly that creditors should have the right of reference. Everyone else seems to agree with the amendments, so I would appreciate hearing that point of view.
The Law Society is of the view that giving creditors the right of reference keeps the bill in accordance with other legislation in which the creditor in a standard security is notified of litigation and has the ability to enter appearance.
You may be familiar with the situation in which a couple are divorcing and there is an argument over the house. The heritable creditor must be told about the action. From a practical point of view, the creditor will never enter appearance, but the legislation states that they should be told about it because they have a perceived financial interest in the outcome of the case.
On a more technical basis, the suggestion ties in with proposed section 73(5ZA), which lists the same four categories that the society identified. Again, it brings continuity to the legislation.
Sarah Boyack has a question about valuation.
It is about the extension from six weeks to eight weeks. Scottish Land & Estates expressed concern in evidence that the process is already difficult, and that just adding another couple of weeks is not likely to help matters. Indeed, it could make the process more problematic when landlords are reluctant to sell and may be deliberately delaying.
11:45
We are generally in favour of extending such things to give that little bit more time. Whether two weeks would make a material difference is arguable—make it 12 weeks, if you wish. The general point is that it is moving in the right direction; rather than making the process more restrictive, it is making it more flexible. Ministers can further extend that time if it is required or shown to be necessary. We do not have a problem with the proposal.
We felt that there was no problem with the extension. Again, if we are creating a system in which people can keep extending the period, that could create problems but, at the end of the day, if that administrative time is required, it is sensible for it to be available.
Scottish Land & Estates took the opposite view, but I shall not make a judgment on that. The longer the delay, the greater the detriment in terms of finance and the relationship between the owner and the crofting community body. However, the balance of opinion seems to favour the opposite view.
I will go off piste here. As you know, I act in the Pairc case. The difficulty that the landlord had was in ensuring that information that he released to the valuer would be kept confidential if the buy-out did not go ahead. That has been a fundamental difficulty for valuers; they approach landlords who are not willing to release information. The Law Society would prefer 12 weeks, but from a personal perspective, it is clear to me that the valuers need that time. When you have been dealing with the Pairc case for 12 years, what is 12 weeks?
That point is well made.
Graeme Dey has a question on compensation.
Scottish Land & Estates and NFUS have questioned whether it is appropriate for ministers to assess compensation levels, and SLE suggested that advice from experienced valuers should come into the process. Do the panel members have any concerns about the objectivity of ministers and their ability to determine appropriate levels of compensation in such cases?
Be careful how you answer that question—it refers to any minister.
Ministers are estimable people of the highest quality and therefore their judgment should be trusted absolutely. [Laughter.]
Seriously, at the end of the day someone has to make a decision and, in a democracy, ministers have to take that responsibility. They will be given good advice by their officials and there is a valuation process behind it all, so I do not think that there is an issue.
In that case, we move on to the appeal to the Land Court.
Section 92 of the 2003 act allows the Land Court four weeks from the hearing date to give its reasons in respect of a valuation appeal. The proposed amendment will extend that period to eight weeks. Should that extended timescale not be sufficient, the Land Court is to notify all parties of the date on which it will provide a written decision. The explanatory note states that
“this will provide assurance to all parties of when the decision will be received.”
Initially, the call for evidence suggested repealing the provision requiring the Land Court to provide its reasons in writing, and the majority of respondents focused on this amendment.
Is the panel content with the amendment as it stands? Does the Land Court have the flexibility to take a number of weeks before it rules on an appeal?
After 30 years of appearing before the Land Court, I would hesitate to fix time limits at all. It seems to me that it is for the court to decide on such limits and perhaps they should be contained in the rules of court. What sanction is available to parties if the Land Court does not do as instructed in the legislation? No sanction is included. If there is no result within the eight-week period and no information about when the written statement will be produced, should my friend the new chairman of the Land Court, Lord Minginish, be hung, drawn and quartered?
It seems highly inappropriate that the crofting community right to buy should be a preferred use of the Land Court. That is my personal opinion after 30 years as a practitioner appearing before the court. The court is always in control of what it does. Being told to do something in 28 days requires a punishment if it is not done within that time, so what is the sanction if the court does not abide by the eight-week limit?
You put that on the table for us. Does anyone else want to comment?
I suppose that we would generally rather have a tighter timescale because we are trying to focus minds but, to be honest, whether it is four or eight weeks is not of the greatest importance, so we are happy to live with the amendment even though we think that it is headed in the wrong direction. As Derek Flyn says, the court is free not to meet the eight-week deadline, so the question is whether the time limit really matters.
The appeal relates to valuation, which is a fairly important part of the overall process, so it keeps certainty for the parties. If the Land Court overruns its eight-week limit and has not put its hand up for an extension, does that mean that the status quo applies and the entire procedure collapses? That might be a question for Lord Gill in the first appeal.
By adding a time limit, we put something in the law that is perhaps not required.
We have had recent experience of time difficulties. The Land Court issued a judgment just before Christmas on a Crofting Commission case and the commission had 28 days to appeal but there was no time over the Christmas period for it to do much about that. Its first meeting was after the 28-day period.
If the chairman of the Land Court and two members are off on a hearing in South Uist for four weeks, who will respond to an appeal? Should one of the clerks in the office get back and say that it will be done later? It is really strange to me to include a time limit in a bill requiring the court to do something.
We are generally of the view that there should be some time limit in the bill, but there should be an ability to apply for an extension to it. The important point is that the parties be kept aware of when the decision will be made.
So, in a sense, it is an advisory limit that makes the point that a reasonable time needs to be taken. Can we have a section in the bill that sets a time limit without the additions that have been mentioned?
That problem appears in the crofters act where the Crofting Commission is told that it has to do certain things whereas there is a policy plan that has to be approved. That is where such matters should be laid. Likewise, how the Land Court goes about its business should be in its rules and regulations. If it is in the bill, nothing will be able to be done about it if it goes wrong. It will just cause a legal problem that will go into the courts and stay there.
Sandy Murray suggests that, to put it in other words, the limit is to try to focus minds. We would assume that the Land Court would try to focus but, if it is in South Uist, how will it focus on a valuation appeal?
It will not focus.
We will have to ask the minister about that as well.
I have two points about process and outcomes. We have had a short timescale in which to deal with the amendments but, because there has been a general consensus that they move in the right direction, we have been able to cope with that, although we wish that they had been consulted on at the beginning of the process.
I thank the witnesses for the efforts that they have made and the clarity that has been brought to the matters, which will enable us to pin down the minister on one or two points with the general recognition that, for once, “simplification” and “crofting” are two words that can be spoken in the same sentence. Is it likely that the amendments will encourage crofting communities to seek the right to buy and point more people in the direction of taking such action?
I distinctly hope so. I suggest that all the buy-outs that have taken place in the Western Isles have taken place because of the existence of the Land Reform (Scotland) Act 2003—it was only the coming into existence of that act that enabled that progress to be made. In our little township, we have managed to negotiate the purchase of a very small area of land for a community hub by virtue of the existence of the 2003 act. I think that it is an extremely important piece of legislation, and everyone should welcome any improvement that is made to it.
I would like to add something to that and to make a point about process.
If the amendments to part 3 of the 2003 act are agreed to—in general, we hope that they will be—proposed part 3A will have to be amended in line with those amendments, because it was drafted on the basis of the current part 3. That is a technical point, but I wanted to flag it up, because if that does not happen, we will end up with another anomaly.
I completely support what Susan Walker said about the proposed amendments encouraging people. It is very important that the law is credible. If it is believed to be credible by all parties, that will encourage more people to talk to one another in the way that people have been doing in the Western Isles. The proposed changes could make the law more credible in the eyes of communities, because currently the folklore surrounding part 3 is that it is impossible to use, so people should not even try to do so. That discourages communities. The amendments will make the process that bit easier, so communities will be prepared to think about using part 3, if necessary. In turn, that will encourage more discussion between communities and owners of the sort that is taking place regularly in the Western Isles.
I thank the witnesses very much for their participation in what has been a comprehensive session on an area in which there is a wide degree of agreement.
The committee has another couple of items that we have to consider in private, so although it would be nice to talk to you all about the price of lamb in Harris et cetera, it would be a good idea if we could clear the room quickly.
The next meeting will be on 25 February, when we will hear from the Minister for Environment, Climate Change and Land Reform on the Community Empowerment (Scotland) Bill. We will also take further evidence on the Government’s wild fisheries review from stakeholders.
11:57 Meeting continued in private until 12:52.