Official Report 522KB pdf
We can get into such details later on in our questioning.
I will have to be reminded of some of those headings.
Okay.
There is an assertion that Caithness is atypical as the crofts tend to be larger and as there have been employment opportunities here, so absenteeism is in single figures, which is a plus. There are challenges around ill-informed definitions of terms such as “absentee” and “neglect” when the subject is considered by people who do not have much information on or background in crofting.
I am sure that we will be able to address your other points later.
I express my appreciation for the fact that some of the more pernicious aspects of the original draft bill have been dropped. The two issues that predominantly concern me in the proposals that remain are the register of crofts and the proposed action on absenteeism, both of which are totally flawed. I have noted from the papers that have been circulated that the Government considered that it was inappropriate for it to bear the cost of the creation of the proposed new register. However, it seems perfectly content with the proposition that the crofting constituency should be requested to bear the cost. That cost is put at something in the order of £1.2 million over the timescale, together with something in excess of £300,000 for additional elements—possibly mapping, but I cannot recall precisely. It is a serious imposition to impose on a constituency that is disadvantaged in any case the cost of a register that seems unnecessary, given the current status of the Crofters Commission’s register and the ability to improve it using the integrated administration and control system as a basis.
We will come back to both of those points in detail.
John MacKenzie and I live on opposite sides of Sutherland—I come from east Sutherland—but I concur almost 100 per cent with what he said. I have already made a written submission on the problems that I see with the bill. Like John, I am concerned about the confusion—I do not know whether to call it that—between absenteeism and neglect. Neglect is a much bigger factor than absenteeism in the dereliction in the crofting counties. Perhaps the committee might consider moving the emphasis in the bill from dealing with absenteeism to dealing with dereliction. Like John, I know plenty examples in which absentee crofters have made arrangements under which their crofts are well worked and well looked after, but I also know other instances of crofters who are resident on their crofts, which—to be frank—are a mess because they are totally neglected.
I am here today wearing two hats: as an estate factor, as has been mentioned, and as a crofting tenant. I hope that what I say is focused more on crofting than on my individual circumstances.
I find the scenario somewhat synthetic. It is most unlikely, although clearly it is possible. I am concerned that absence seems to be equated with neglect. The question conveyed that impression. The picture that you paint is one of a significant number of croft tenants or owner-occupiers—
You may have misunderstood me. I am not suggesting that. I said that all 50 crofts are being worked by the three remaining crofters and that none of the crofts is neglected. I was not equating absence with neglect.
The problem with a hypothetical question is that you get a hypothetical answer.
In the area that I know, the question is hypothetical. I cannot see a situation in which that would happen. Crofters may be missing from their crofts but they are replaced by people who are resident in the community. That is how these communities are made up.
I will take that a little bit further. Where there is a long-term nostalgic attachment to the land—that is a very real feeling, which I recognise fully—if tenant-only status was recognised, the absentee crofter could maintain their connection with the land that they cherish by purchasing their croft, becoming a landlord and putting in a tenant with no right to buy.
Under that scenario, would the tenant have security of tenure?
If I understand you correctly, you are concerned with absenteeism only where the croft is not being properly maintained. Is that correct? I am speaking generally.
Yes.
The focus is on the wrong issue at the moment. Absenteeism per se is not the problem; neglect or dereliction is the problem. Every croft tenant or owner-occupier should be required to reach a minimum standard. If that minimum standard is being reached, whether the tenant is an absentee or otherwise, there does not seem to be a material issue. Examples can be cited ad nauseam of crofts that are neglected while in the hands of resident crofters, and of crofts that are well worked that are in the hands of absentees. I am happy to give a couple of examples, but I do not think that it would advance the debate in any way.
One of the definitions of absenteeism at the moment is living more than 16km away. Would you venture an opinion as to whether that distance should be increased? Could you put a figure on it? Should the specifying of a distance be abolished altogether?
I wondered whether that would be your view.
Do others on the panel share that view about increasing the distance or abolishing it altogether? Does John MacKenzie speak for everyone on that point?
If you accept the idea that there could be large numbers of empty houses and absentee crofters, you must also fundamentally disagree with Peter Peacock’s view that crofting is about ensuring that people actually live in the community.
Let me cite my own township in answer to that. There happen to be a number of absentees there. Two of them are currently the target of the commission’s new-found interest in identifying absentees. One of them is managing his croft well, although he is absent—he has a small flock of sheep and has built a house, which is evidence of his intent. A number of other houses are occupied by incomers—largely English—who make a contribution in the sense that there are lights on in houses that would otherwise be empty. Some of the papers before us express concern about second homes. I venture that I could be viewed as one of the culprits in that context, as I have built a self-catering chalet that is empty during the winter. However, most of the houses that have been taken out of crofting tenure and sold on are occupied throughout the year by people who are resident in our township and are, therefore, making a contribution.
However, those people would not be considered absentees. If they are not crofting, they are not crofting. If they are present all year, they are present all year.
Absolutely, but that is not as important as neglect. Neglect is the single biggest enemy of crofting—note that I say crofting, not crofters.
The situation is slightly different where I come from because, no matter how good you are at walking, the Minch will cause you a bit of difficulty. The situation in which people live outwith their croft is often not as serious as is made out when people talk about absenteeism. A tenant can quite easily fulfil their obligations, not just in looking after the croft but in supporting what happens in the township. If they do that, they are not interfering with life in the township, but when they are totally divorced from that, unless they can ensure that someone else performs that function, they can be classed as an absentee.
That is possible, but I repeat what I have already said: the trigger ought not to be absenteeism or absence per se; it ought to be neglect. How such a trigger would be operated remains to be considered, but I believe that the commission, with its staff and their expertise, would be well able to address that, perhaps on the basis of grazings committee or all of the grazings committees being asked to participate in the process of identifying such crofts.
I listened to the responses to Bill Wilson’s questions. Yesterday, during the visits, we discussed the impact of the changes during the 1970s relating to consolidation, which was incentivised. In agriculture generally, bigger units are being created to respond to the mechanisms for agricultural reform and the way in which subsidies are going. I take the point that the hypothetical situation that Bill Wilson described is not likely now, but is there a risk that removing absenteeism as a trigger would lead to greater consolidation, to the point that that hypothetical situation might come to pass? If so, would that be a problem? John MacKenzie said that if the land is being worked and people are moving into the community for other reasons and contributing in other ways, absenteeism is not an issue. Is that a likely trend?
That leads on to John Scott’s question.
We all know neglect when we see it, and we are in the business of seeking solutions to address it. If the panel has positive suggestions, we would like to hear them. I suggested the idea of grazings committees recording neglect. Being a farmer, I know neglect when I see it, just as a crofter does. Is there a way of seeing neglect and then recording it? If so, how should we take action? Should that be done by grazings committees submitting reports to the commission, which will be obliged in law to address the issue? Is that the way forward? I am not an expert in the field; you are. I am looking for views, and solutions.
The problem is that we have had evidence from quite a number of individual crofters who have identified areas of neglect but do not want to speak out because they fear that it would create ill feeling in their community and because, in future, they may have difficulty getting sublets, as tenants would say, “Oh, you were the person who reported X.”
In my area, the townships are dynamic and well worked, but there is no active grazings committee—the inspection agency carries out its work. It comes and inspects crofters’ premises for cross-compliance.
It is a matter of sorting out the current problems with subletting. As I understand it, a sublet can terminate at very short notice on the death of a tenant or a change in the tenancy. If that young person had the security of the sublet for, say, 10 years, he could apply for crofting grants and address that situation.
Yes, but his point is that he does not want to do that because the people who have the informal relationship with him would be reluctant to formalise it. It is convenient for them to have the land worked but to have no responsibility.
That would help his position.
Yes.
A couple of weeks ago, we took evidence on assessors and the role of grazings committees. I know that the Stornoway Trust was a bit disappointed that we did not address what has been seen as the local assessor system’s lack of effectiveness. Are there assessors in your communities? How are they selected or chosen? Will you comment on the activities of grazings committees? Evidence that we have received suggests that they could have a role in identifying neglected crofts, for example. Will you describe local situations with regard to assessors and grazings committees? Councillor McGillivray has already said that there is no grazings committee in his area.
But in the meantime she might well obtain the tenancy of a croft that became available for assignation.
But if she did not, what would you do? Would you take her off the croft and give it back to the original person?
Yes, because the sublet was taken on the basis that the tenancy might be terminated at the end of 20 years.
Me—and others.
Jim McPherson pointed out there were no candidate assessors, and the other Jim—Councillor McGillivray—said that he would not touch the role with a barge pole. The Stornoway Trust has expressed concerns about the assessor system. Is there something fundamentally wrong with the system that ought to be addressed?
I will explain a little further what I am thinking about. I accept that there will be some people in your position, Councillor McGillivray, but if more people become owner-occupiers because absolute equality makes it less likely that someone would remain a tenant, does not that represent a further step towards a free market in crofts and an encouragement of the very speculation that, to a large extent, the bill is designed to prevent?
Is that not the factor’s problem? Also, whether the landlord is benign sometimes comes into the equation, as does the type of landlord involved.
Jim McGillivray and Alistair Maciver want to come in, but we really must move on. They might be able to make their points under another heading.
I have suggested two alternative methods to the one that is proposed. One is the community mapping system, which has the attraction of utilising crofters’ community spirit. The other comes from a slightly different angle and involves using the commission to contact every registered crofter with a list of questions. If the crofter answered no to the questions, they would be asked at the end whether they were aware that it might be necessary to resort to the Scottish Land Court and an expensive, time-consuming legal process to establish the boundaries of their croft. Either system could be made to work reasonably well and reasonably quickly. Both would have the advantage of ensuring that communities or neighbouring crofters had to agree existing boundaries, using IACS maps in many cases.
There is a positive side to a ransom strip, from the point of view of a benevolent community landlord, such as the Embo Trust aspires to be.
If they had such a strange reason, it would be against the interests of the community trust.
So you would keep ransom strips and have no legislation.
But you are a witness and I am asking for your view on the matter.
Where someone was trying to develop a new township, ransom strips could be a particularly useful control over the behaviour of prospective tenants—or rather the behaviour of tenants once they are in tenure.
We have a maximum of about seven minutes left. Does Jim McPherson have a quick point to make?
Liam McArthur will ask quickly about the development of croft land.
The Highland Council submission states that the integrated administration and control system should be the basis of that register.
Yes to both. The election system should be extended to crofting assessors. That might deal with some of the points that have been made today with regard to assessors.
There is also the issue of candidates coming forward, which Jim McGillivray spoke about.
I am supportive of elections to the commission, but I have divided views on the Whitbread issue, simply because we used that decision to great effect—as Mr Flyn recognises—many years ago. Once we became landlords, it became a bit of a problem, and we wrestled with it.
I would say yes regarding Whitbread, but the jury is out regarding an elected commission. There are concerns over the proposed remit of the crofting commission. It is regrettable that the development function of the commission has been taken away. When I talk about development, I am referring not to building sheds, fences and dykes, but to building up a community. That remit is important, and it should be a very important function of the crofting commission to develop crofting. That function has been taken away, leaving us with commissioners who will not even have immunity, and they might have to work under difficult circumstances with budgets that they do not set but to which they must adhere. Some cases might have to be decided not on the basis of what is right or wrong but on the basis of when we can afford to fight and what we can afford to challenge. If the money runs out half way through a term, does that mean that everything in the crofting world stops until the next financial year? There are a whole host of issues around the remit of the commission.
I will make one more salient point. It is suggested in the bill that at least four different organisations will be responsible for crofting. Surely one organisation should be responsible for crofting. That was the case in the past—should that not continue? Why spread responsibility across four different organisations that, on many occasions, probably will not speak to one another?
We move to the public participation part of the meeting. All speakers are asked to keep their speeches to no longer than four minutes, in order to allow all those who wish to contribute to have their opportunity to do so and so that we do not cut into the time that is available for evidence from the Crofters Commission.
Thank you. The next speaker was to have been David Forbes, but unfortunately the weather has prevented him from getting here. He has asked me to read out the following statement on his behalf, for the Official Report:
Thank you very much. I call Sandy Murray.
I am a crofter from Dunbeath.
That is a problem for tenant farms, too, which reduces the number of new entrants. We have considered that in discussions on other issues that have come before the committee, so we are aware of the situation.
Certainly. We subscribe to a philosophy of endless improvement, so we are quite happy to be corrected and will take serious cognisance of any suggestions about how we can improve our performance.
Nick, do you want to add anything?
I want to look into that a bit more deeply. Other administrative action in the past year has given the commission’s development function to Highlands and Islands Enterprise. As I recall, the budget was very small; it was about £150,000 or thereabouts.
It would depend on how the new legislation develops, if it is passed. If we are to have elected representatives of the crofting communities, I would prefer them to have power over something that could contribute to the development of their community. That would attract a better type of candidate. If people are to be elected to a body that is purely a regulator, in effect they will be standing for election to operate arcane and complex legislation and to make decisions that could sustain appeals to the Scottish Land Court. This is simply my opinion, but if there were a broader remit, you might attract a different type of candidate.
No. I would have thought that they were complementary functions. We do not necessarily need to hark back to this, but one of the fundamental aspects of the Shucksmith report was that crofting development bodies should be set up to deal with that kind of thing. I would like crofters to be involved in that sort of thing one way or the other.
It is interesting that you raised that point, because we had a conversation this morning about the potential role of mediation in resolving local conflicts or disputes or preventing them from brewing. What is that role and is it part of the regulatory process or of some wider community development process?
Another concern that was raised with us is that most of the people who register are men rather than women. If that is the case, there could be an equalities issue. Earlier evidence suggested that only those who are on the electoral register and eligible to vote should be eligible to stand, as is the case with the election of councillors, MSPs and everybody else. Is there an equalities issue, in your view?
We have some figures on that. We looked at some 14,500 crofters. I have to say that we do not know the gender of about 500 of them because the figures are based on searches, and if someone is a doctor or whatever, we do not know their gender. However, we know the gender of the vast majority, and the overall balance is 2.1 men to 1 woman, so about a third of registered tenants are women.
The demographic is quite narrow because the average age of crofters is in the 60s.
I suppose that that is up to the Parliament.
I am trying to be nice here.
It does not trouble me tremendously much. For interest, most of the current commissioners are crofters, but one of them is a small farmer who owns some tenanted croft land, so we have a croft landlord among the current commissioners. It is not absolutely clear to me what would be achieved by your proposal given that commissioners are required to interpret the law and make decisions commensurate with it. Commissioners are not there to represent crofters or landlords, nor do I think that it is reasonable for them to do so. If commissioners attempted to make decisions on that basis, I fancy that they would be struck down on appeal fairly briskly.
I agree with that and would add that the public interest, plus the emphasis on skills and experience, might be what should guide ministers the most in deciding whom to appoint. In other words, the minister may want to see who has been elected and, to a certain extent, use the appointment process to fill any obvious gaps in experience, knowledge and skill sets. For example, an appointment can fill the gap if none of the elected people can speak Gaelic. If we start to fetter the process, we may find that ministers appoint on the basis of interest when they should be looking at least as much, if not more so, at skills, experience and knowledge.
I would make the convener a ministerial appointment. The minister could appoint the convener from either outwith or within the people who are elected—I make no comment on that—but I think that the proper mechanism would be to make the link through the Parliament, as Peter Peacock said.
I will move on to the question that I was going to ask. One of the controversial proposals in the bill is to give the commission, for the first time, powers to charge for its services. If you are a crofter who applies for a decrofting, apportionment or whatever, you might end up paying anything up to £3,000 for the transaction. Given that Parliament has imposed on crofting the need for crofters to apply to the commission for decrofting, apportionment and assignment, is there any justification for the crofter having to pay for that?
We have heard arguments that there should be additional statutory provision for assessors, including a requirement that they be elected. We heard in evidence on 10 February that, in some areas, some assessors are elected. We heard today that it can be difficult to attract people to stand as assessors because, to paraphrase, they might be seen as the community snitch. How are assessors formally appointed at present and what is their role? Should there be statutory provision for the election of assessors?
I would qualify that slightly by saying that the issue is how much can be done within a certain timeframe. Eventually, it can all be done, but it might involve a big peak of work at the beginning followed by things tailing off. It will need to be managed very carefully.
Again, that comes back to the plan. In a sense, the issue is how much effort the Government and the crofting communities want us to put into each case. We have heard about absentees today; I will leave aside the debate about occupancy versus usage. We have sent out 600 or 700-odd letters to people who we think have been absent for 10 years or more, and we have started to get letters back, which give a huge range of reasons for and explanations of what has happened, what is happening or what will happen. It is hugely time consuming to go through each of those cases in great detail.
We heard some evidence that people would not consider standing as an assessor because there would always be a suspicion that they had somehow favoured one part of the community over another.
You do not think that your work would decrease.
You heard the concerns that were expressed earlier that the bill as drafted means that there will be an incremental process whereby certain neighbour crofters will only find out about the allocation of a boundary when it has already been set. As a result of today’s evidence, the committee has been taken with the notion of a community-based mapping exercise, partly, I suppose, because some of the mediation that you mentioned earlier in response to Peter Peacock’s question might come through that process. Would a community-based mapping process make your life easier?
One of the concerns that was raised yesterday, when we visited crofters in Caithness, was that the current arrangement is working fine—it is pragmatic and solutions are reached—and that the process of mapping a register could flush out new antagonisms.
I agree with Drew Ratter. There must not be duplication. If the register goes ahead, it behoves the Registers of Scotland and the commission to ensure that there is no duplication—that is a no-brainer. The keeper of the records is an expert in what he does and it seems perfectly sensible for him to keep the register. If he wants to send us some of his fees, I will not say no to that.
The problem is that not everyone’s land is mapped for IACS. Only 5,000 out of the 15,000 crofters are IACS mapped. Nevertheless, that could be a starting point.
Can that really be right?
I believe so. That is what we are told.
We are not there.
Crofts, as opposed to crofters.
So if we were to go to a community-based register, starting from the community rather than using trigger points, a community would have to be able to sit down with the landlord’s maps, the IACS forms, the land registers and all the other maps so that it gets some commonality and a map of the area that will be used by all. If you say that you have maps for your purposes but the community has agreed a map for its township or whatever, that still means that different bodies are using a proliferation of maps. Surely that is not the purpose of a register of crofts. For example, you have been tasked with creating a register of crofts, and presumably you have some outline of croft boundaries. Would the Crofters Commission, through the local assessor or whatever, be prepared to give its information to the community so that that could be one of the starting points for getting the register together?
Of course, and of course it would be available. That information is available to anyone who is trying to put it together. I hope that everyone who holds information will make it available. The final outcome would have to be something that had a thumbprint on it and could be accepted by all.
Bill Wilson has a particular point about ransom strips.
Sometimes I get the feeling that the committee finds a new set of maps at every evidence session.
I do not feel qualified to comment on that, I am afraid.
We would only be able to do that if we had additional resources, but there is no reason in principle why we could not do it. We already have some of the expertise and we are on the brink of putting the register of crofts online anyway. I suppose it depends on what the register is for. There is a certain logic in its going to the keeper if it is used in the same way as other records that are kept by the keeper. If it used as the basis of proving where the boundary of a property is, there is a certain neatness in all the information being with the same person.
We should bear it in mind that there is a huge difference between compiling the register and keeping it. To keep such a thing just requires us to have a computer server that enables it to be searched online and a technician who maintains the computers and sees that they do not break down. Keeping the register and permitting free access to it by people who need it would not be difficult for us to do.
I want to move on to where crofters live relative to their crofts. You heard some of the earlier debate about that. To be frank, from my point of view—I probably speak on behalf of some other members of the committee, if not all of them—one of the most intractable issues that we have encountered is the question whether the problem is absenteeism or neglect. I suppose that the answer depends on what we regard as the central purpose of crofting. Is it about providing housing and a place to live in remote communities and about sustaining those communities or is it essentially about agriculture? What are your views on the 16km limit in the bill? Also, is the issue absenteeism, neglect, or both? Where do you stand on that?
Rather than your having to wait for a complaint about neglect, would it be better for the commission to have a duty to inspect or to make arrangements to inspect land from time to time, so that the community did not necessarily have the burden of having to complain?
But would it assist your ability to tackle the issue of neglect, about which people are clearly concerned, if you were under a duty to inspect?
You said earlier, Drew, that crofters often do not tell you about changes for the current register. Under the new proposals, including the 16km limit, there would be a duty to seek the new commission’s consent to be absent. How would you check whether people had done that? Have you thought about that at all?
I am conscious that time is marching on. Questions and replies should be as brief as possible. Bill Wilson has a quick question.
You would say that it was neglect.
If they were not refraining from activity as part of a recognised scheme, it should be defined as neglect.
I agree with you.
In simple terms, you would want to say, “You can’t get planning permission for anything until you have decrofted.”
Yes. I would.
The proposals in the bill will allow you to refuse to decroft, even if there is planning consent. As you have said, you are a key agency, and that will develop over time. It has been put to us on occasion—it has certainly been put to me over the years—that it would be helpful if the commission had a power to comment on any individual planning application; perhaps it should be a duty—perhaps the commission should be a statutory consultee. I concede that that would be difficult for every planning application—it would be a lot of work. On the other hand, given that you are a key agency in the development of the local plan, if you were a statutory consultee on any application that was contrary to the local plan, would that assist the commission in protecting crofting land, which has been the topic of much debate in the past?
Succession can be complex. Our basic premise is that as croft land that is let by a landlord is bare hillside, all improvements are improvements by a crofting tenant and their predecessors. Therefore, there has to be a mechanism to allow crofters to pass that to whomever they choose. If they are intestate and an heir is identified, that is a legal matter and it is not really for me to comment.
In paragraph 10 of schedule 2 to the Crofters (Scotland) Act 1993, on the statutory conditions, it states:
I do not recall a case where that has happened. It seems a bit harsh, I have to say.
Within a year.
That is a totally different question. I was not really trying to comment on what happens when a tenancy is valued as an asset. This is a very specific situation in which the landlord can dissolve the tenancy because the tenant has been declared bankrupt. I guess that that is when the tenancy has not been valued as an asset; it is just sitting there and the landlord takes the opportunity to boot the tenant out. They are two different scenarios.
As members have asked all their questions, I thank the witnesses for their—
Good afternoon, ladies and gentlemen. I welcome everybody to the committee’s fourth meeting of the year. The committee is delighted to be in Caithness and to meet in Thurso for the first time. I ask everyone to ensure that their mobile phones and BlackBerrys are switched off, as they impact on the broadcasting system. We have received apologies from Alasdair Morgan and Karen Gillon, who are committee members. The meeting clashes with other parliamentary appointments that they have.
We may question you further on the issue in a few minutes.
We move on to the issues that you have identified. We will start with absenteeism.
After I have asked about absenteeism, one of my colleagues will ask about neglect. I will try to tease out particular issues relating to absenteeism. Some of your opening statements might be interpreted as suggesting that it does not matter if someone is not present on a croft, as long as the croft is being worked and maintained. I offer you a hypothetical scenario, to see how far that goes. If there were 47 absentees in a community of 50 crofts, but all the crofts were being worked by the three remaining crofters, would that be a problem for you, or would it be fine? My question is addressed to all members of the panel.
No right to buy, but security—
The absentee is still the landlord. The connection remains.
Generally, yes.
As far as I am concerned, absenteeism is not the predominant issue.
Yes.
I want to press John MacKenzie and perhaps Iain Maciver on that point—others should feel free to comment. On the contention that 16km is irrelevant now, I gather that that distance was set in the early 1900s, so it was probably more to do with walking distances. If we consider the commentary on crofting over the past number of decades and if we ask what crofting has contributed to the Highlands and Islands that is particular and distinctive, a great many people will say that it has allowed people to live in very remote communities, to populate them and to keep them alive. It has given people who are hefted to the land some sense of continued belonging to the land as they contribute to food production.
I would replace that trigger with another trigger: that of the effective use and management of the land, within certain parameters. In other words, I do not believe that any radius or distance should be the trigger, in any sense, in the modern age. Neglect and misuse are far more important issues.
All I am saying to you is that the pursuit of so-called absentee crofters in order to make houses or opportunities available to incomers is not necessarily founded on the notion that a croft has to go along with it.
I concur with John MacKenzie. The question is more about crofting than crofters. Confusion around those two things has existed for a long time. Which is more important: the support of people whom we might call crofters or the support of crofting as a system? It seems to me that pursuing absenteeism to the nth degree rather than pursuing neglect is the wrong approach. The point has already been well made that your hypothetical situation is most unlikely to happen.
What do you think of the proposal that people would have to apply to the commission for consent to be absent from their crofts?
We will come back to that point.
It is already a trend. We must not try to turn the clock back.
You mentioned in passing the question whether neglect should be addressed by regulation or by providing support. I said in my written submission and repeat here that support is not an issue for the committee; I understand that it is not part of the committee’s remit. However, crofting support is one of the key means of reviving crofting. Over the years, especially the past 20 years, such support has decreased rapidly and to a tremendous extent: any study of support schemes over the period would prove that conclusively. Support is one of the keys to improving the situation of crofting.
I think that John Scott’s question is, who would trigger the investigation? Somebody would have to say that they thought a croft was neglected. Would that be a grazings committee?
No. However, I think that an assessor is in a particularly difficult position in any crofting community, and I would certainly never aspire to having that post.
That was said by a councillor.
That is a particularly important issue. As things stand, it is perfectly permissible for an absent tenant to put in a sub-tenant for a specified period. That should certainly be considered as a way forward.
Yes. The point is that there would have to be an assurance that the tenant, as opposed to the sub-tenant, had a genuine desire to return to the croft. The tenant should have to make a commitment before using a sub-tenancy.
But if they had to make such a commitment, that would imply that absenteeism was a problem to some degree, because that would introduce a commitment for the tenant to return to the croft.
I am not trying to trap you or pin you down; I am just trying to find a solution.
I am well aware of that. [Laughter.]
Despite having never been in this area before, I can cast my eye over several crofts and, based on my experience as a farmer, tell you immediately which ones are neglected, just as an agricultural lands officer would do. Are you suggesting that, as lands officers travel around the crofting counties, the responsibility should lie with them to notify the commission of areas that they see as being neglected?
Yes. I am suggesting that mechanism. I would hope that the lands officer would first want to talk to the individual crofter, ascertain the reasons for the neglect and discuss what would be, in his estimation, land in a neglected condition. He would want to know why the neglect was happening, what the crofter’s aspirations were and what the crofter was going to do about the neglect. The lands officer could also tell the crofter which options were open to him.
You might be aware of the Camuscross report—a grass-roots report from a crofting township on the state of its area. Jim McPherson has been an assessor. Do you think that such reports could serve a useful purpose in other areas? What would the role of the assessor be?
The role of the assessor is an interesting one. Councillor McGillivray has just said that he would not be one. At the last round of elections for assessors, there were no candidates in Caithness. That might have an effect on the answer to your question. Although the Camuscross report is good, it is good only for Camuscross. There is no fit one, fit all solution. Caithness is so different from Camuscross—they are like chalk and cheese. We have one or two grazings committees in Caithness but they are not very active, and some assessors agreed to stay on, but apart from that there is no possibility of doing a Camuscross in Caithness.
Yes. That is why it is a concern. You hear the assessor network being praised—usually by assessors—but many crofters do not know who their assessor is. There is no mechanism to ensure that an assessor is fit for purpose. If the development of crofting was very much part of an assessor’s remit—rather than their being assigned to adjudicate over whether a person is suitable for this or unsuitable for that—assessors would have a far healthier status in a community; they would not be perceived as the person who told on the neighbour. There is always the perception that someone did not get something because the assessor put in a bad report about them. Whether or not that is true, that is the perception, and it is an unhealthy one that is discouraging people from taking on the post. That is probably why there are difficulties getting assessors.
Before we move on, I want to pick up one other point about the specific provisions in the bill to equalise the duties on owner-occupiers and the duties on tenants. When we took evidence from Government officials three or four weeks ago, they indicated that ministers would consider equalising access to the grants system. I should make it clear that they have not yet decided to do that, but the logic behind such a decision would be that, if people have equal burdens, they should also have equal access to the opportunities that are provided by the grants system. Do you have any views on owner-occupiers being regulated in exactly the same way as tenants are?
It is not that long since someone who wanted to purchase a croft had to receive a letter of comfort from the commission, which was issued only after they had assured an officer of the department that they were competent and knowledgeable enough to work the croft as a crofter, so there is nothing new in treating owner-occupiers and crofters similarly.
There seems to be general assent on that point.
I take a different view. I am a tenant and would prefer to remain a tenant. I would like a certain empathy for the status of tenant, particularly with regard to the issue of tenant-only crofts for new entrants into the crofting system.
As a community landowner, I have strong views on owner occupancy because with the croft comes outrun and the need, in many townships, for people to work together as a crofting community with regard to communal activities such as stock management or tree planting and other environmental measures. In a township that is full of individual owner-occupiers, the cohesiveness that exists when everyone is a tenant under the same system and has an incentive to come together for the common good begins to be eroded.
Okay.
The factor has many problems, but that is not one of them. It would be the grazings clerk’s problem, because the development of the grazings would come through the grazings committee and the clerk. It is the clerk who would be responsible and who, in trying to initiate development in the township, would be burdened with having to contact all the necessary parties. It would not be the factor.
Would you go so far as to argue against the bill and its intention that tenants and owner-occupiers be treated equally?
There is a lot to be said for a community mapping system. If we stick to the process that is envisaged in the bill, the first time a neighbour will get to know that his croft boundary has been fixed will be when the commission notifies him that his croft boundary is now in register and that, if he does not like it, he has six months in which to object.
How would you legislate to ensure that positive side? With the best will in the world, you can imagine that the tenant might not feel that you are as benevolent as you feel you are—of course, I do not mean to imply anything by that. How would you legislate? You could grant a right of access, but how else would you do it?
I am not suggesting otherwise, but let us assume that you have a future tenant who, for some strange reason, does not hold that view.
The Highland Council submission illustrates a closer correlation between the commission and the council’s planning service.
The point has been reinforced in the past. There have been cases in which crofts have been bought and planning permission has been sought from, and granted by, the local authority for the purpose of providing a house on a piece of land. The Crofters Commission has attempted to oppose decrofting applications for the pieces of land in question, the cases have gone to the Land Court, the commission’s objections have been overruled and decrofting directions have been granted. I gather that there are suggestions for addressing that in the bill. That is an important point.
I have two questions for all the witnesses. Are you for or against elections to the proposed crofting commission, and do you think that the Whitbread judgment should be overturned?
Thank you for this opportunity to speak to the committee. I am a full-time crofter in Strath Halladale, where I work crofts that have been handed down through five generations.
Good afternoon. My wife and I are active crofters at Oldshoremore, Kinlochbervie. My wife acquired the croft tenancy 15 years ago. She did not inherit the croft as a result of the blood, sweat and tears of her forebears—we are first-generation crofters by choice. By our own personal efforts, we have restored a totally derelict croft and built up a good flock of north country Cheviot sheep.
The point is well made and we will certainly consider it in relation to the bill. You are concerned about an estate taking land back into the main farm.
Hello. I am from Forss, which is just a wee bit down the road from Thurso. I have not read much of the bill—I just saw an article in The Press and Journal on Saturday about today’s meeting and I was interested in coming along.
You have made an interesting point—thank you.
We have a question.
I want to pick up on your point about the town and country planning system. Would you support the commission, which is one factor in the process, being a statutory consultee for every planning application, or at least for applications that are contrary to the local plan, given that it would be involved in helping to develop the local plan? Do you have a particular view on that?
I thank everyone who has contributed in the public participation session. What has been said will appear in the Official Report of the meeting, which we will use when we draw up our stage 1 report.
Before I ask my question, it is only fair that I should declare that, although I know some of the people who were on the previous panel, and some of those who spoke from the floor earlier, I know these two individuals very well indeed. I have known Drew Ratter for many years; we were councillors in the Highlands and Islands for an overlapping period and worked together on joint committees a number of times. I have also spent time on Drew’s croft trying to learn something about crofting. Nick Reiter was a senior official at Highland Council when I was the leader of the council, so I have also had many dealings with Nick and know him very well.
I was just going to say that I do not think that you will be less hard on them—maybe the opposite—so carry on.
I have not lost my critical faculties because of all that.
Another task for the new strengthening crofting team, which is still in development, is to do with our new status as a key agency under new planning legislation. That is still very much in its infancy. We are still discussing with the relevant local authorities how it will work, and it has some bearing on the point that Councillor Rowantree made about the interface between crofting and planning decisions.
Having been a councillor, I know that we are used to having to press the buttons on our microphones ourselves, but here you get it done for you—just leave them alone.
Between the development and the regulatory functions?
Yes.
You will be aware of the proposal for members of the crofting commission to be elected. I will not ask you to define how that process should work, but there has been some concern about who should be eligible to stand for election and who should be eligible to vote. Do you have any advice that you wish to offer on that?
You were talking about who should be eligible to vote: it is one vote per crofter. If a crofter has three registrations, they would still have only the one vote—they would not have three votes.
It depends where you put the border.
It would not be out of the question to give people who have three crofts three votes if Parliament so chose. It is up to you.
No, it is okay.
Will you clarify one point? You mentioned public interest and what is almost the minister’s duty in the appointments process. Were you implying that the convener of the commission should always be appointed by the minister?
Is that because of the minister’s accountability to Parliament and the need to have a connection to the convener?
That is my view.
Okay.
Sorry to interrupt, but we had some debate about that point in the earlier evidence session. Do you believe that the appointment should not be on the recommendation of the commissioners for ministerial sanction?
That is interesting. I hope that you can send us details of the scenarios that you have worked out—I fully accept that those may not emerge, but it would be interesting to see that work.
One complaint that we constantly pick up about the commission is that it takes for ever to do things now. If the new crofting commission takes for ever plus for ever, that will not bring it into great repute early in its life.
You mentioned that there are around 700 cases of absenteeism. Is that figure not slightly low, given the level of absenteeism that we have heard about and discussed today and the fact that there are 15,000 crofters? Is it not more likely that the case load involves several thousand cases rather than several hundred?
We need to go through a few years of history first. When work started in 2002 on what became the 2007 act, the Crofters Commission was told that it should cease to be active in the communities. The act says that the commission “may appoint” a panel of assessors—it is one of those “mays”. Since the area commissioner function was abolished, the panel of assessors was systematically run down on the basis that something new would be introduced.
As I tried to say earlier, that is inevitable when an assessor gives their views. It is an aspect of crofting regulation in general. One of the Crofters Commission’s functions is to be a body with which people can get angry. When a decision is made, someone gets what they want and someone else does not. If an assessor is involved, there will therefore be somebody who thinks that the assessor is a good guy and somebody who does not. That is inevitable. However, I repeat that the panel of assessors for the crofting counties is more or less complete. There is a small number of vacancies, and they are mainly in areas where there are low levels of activity. The proof of the pudding lies in the fact that we have assessors.
Okay.
May I add one more thing about that? It is something that nobody appears to have noticed. Almost all public organisations that I can think of would give their eye teeth for an expert volunteer network. That is something that exists in very few places, and we have it in exemplary form in the network of assessors.
The Crofters Commission’s role as a Government adviser on crofting matters is clearly stated in the Crofters (Scotland) Act 1993. The bill removes that role from the list of the commission’s functions and its function to act as an adviser would not be explicitly stated. It would have a duty to publish an annual report, which would be laid before the Scottish Parliament. What advice has the Crofters Commission given the Scottish Government on that? How does the Crofters Commission see its advisory role in future?
We have heard various opinions about the map-based register. Yesterday, there seemed to be a bit of a question mark over whether we should bother with it. Today, as you will have heard, the first panel seemed to accept the value of a map-based register, although the witnesses had deep reservations about how the bill proposes to implement it. What is your view of the short, medium or long-term benefits of such a register?
As was said earlier, in the past the register was maintained as a working tool for an organisation and, broadly speaking, while nothing is perfect, it has been capable of carrying out its functions. There is complex mapping technology, which did not exist a few years ago, that allows a vast amount of information to be stored in map-based form. I am sure that having something of that type will have value.
Is that an administrative value, or do you see value in it for individual crofters and crofting communities?
As far as I can recall, the original reason for setting up a map-based register was to create a register of leases so that crofters could use their leases as collateral when they were borrowing. I can see that that is a very good reason for having an exceptionally accurate map-based register.
We have a geographic information system at the Crofters Commission and we have produced quite a lot of mapping, which we regard as a good extension to the existing toolkit.
Mapping would probably be difficult. If you look down on a crofting township from a high place, you will usually see that, although the dykes originally followed contours or went around the stones, at some point a fence was driven straight through the middle of the zigzags. I am not sure how that sort of thing could be dealt with except through some kind of community mapping exercise. That is an interesting idea.
Mapping will take time and, while it is being done, we will still need to deal with applications. We will still need to use the basic information on a registered croft, which is normally only about acreage, ownership, tenancy and any other matters that we require to know about in order to process an application. For an apportionment, we need a certain amount of detail; however, for some applications we do not need a map at all.
We are talking about boundaries that are defined by streams and burns, which move all the time. I had somebody trying to define something according to where a peat bank was although, during its life, the peat bank had moved by 2ft or 3ft every year. Bear that kind of thing in mind.
Which mapping system would you prefer? You say that you require only an indicative mapping structure. Would you prefer to base your map on IACS, or would you use the 1911 inland revenue maps or the 1886 maps? Where would you start? Would you combine all three and, where there were no discrepancies, use that as an agreed base?
That is Shetland, though.
They do not get any money if they do not submit an IACS application. [Laughter.] I am confused.
There are about 18,000 crofts.
There are more than 12,000 crofters, I think.
Some crofters have more than one tenancy.
Our register is publicly available, so we certainly are prepared to do that. However, in most cases, it is a written description of the croft, rather than a map. It does not delineate the croft, it describes it.
But it would be very useful as a tool.
So you think that ransom strips are a problem. Does that apply to you, Mr Reiter?
That is helpful.
For neglect, the trigger point is that the commission must receive a complaint. Speaking from memory, I think that the complaint can come from a landlord or a grazings committee or neighbouring crofters. Since that was established under the 2007 act, I think that we have had three complaints about neglect. Of those, two were certainly attempts to settle grudges.
Removing the onus that is on communities, neighbours or grazings committees to make complaints would help. The current system is not workable, for reasons that we have heard. I agree with the view that we need to separate the issue of absenteeism from that of misuse and neglect, because on the whole the two issues are not intimately linked. People sometimes tend to think of them as one issue, but they are separate issues, for sure. I agree with Drew Ratter’s point, although whether the main public interest is in promoting crofting for occupancy or in doing so merely for the productive use of the land is ultimately a political decision rather than one for someone like me. Personally, though, I think that the public interest is served by both aspects. However, occupancy has made a big difference over the years in many communities, including my own.
Ultimately, the register of crofts will still be the central source of information in determining who is or appears to be absent and cross-referencing to see whether someone has applied to be absent. As somebody put it the other day, the we-know-where-you-don’t-live approach is not one that we will have to pursue with great vigour. We will have to use the information that we have and, to an extent, rely on people to look after their own interest. For many absentees, it may well be in their interest to apply for consent. I submit that before doing that they will look carefully at the commission’s plan, which presumably will give them some indication of the sorts of ground on which they might expect to get consent.
I will be brief, convener. Over the past five years, how many absentee crofters has the commission told that it will give their tenancy to somebody who lives locally?
We have discussed most aspects of neglect. What is your view on the proposed exception to the definition of neglect when a crofter refrains from activity because they are conserving flora and fauna on their croft? How can that be monitored and enforced? I appreciate what has been said about whether it is an issue for SGRPID.
I would resist the proposal unless somebody was involved in a recognised scheme with recognised objectives. The issue is a serious one for agriculturalists in the Highlands and Islands, most of whom have entered into contracts with the Government to conserve and improve biodiversity. That seems to have been completely disregarded, particularly in the Pack report. The matter is quite simple: if someone was participating in a scheme that had measurable objectives, that would be fine; if they were just doing it on their own, it would have to be regarded as neglect.
So, provided that they quoted the scheme number—
Especially if the fences were falling down.
Thank you. I am taken by your belief that the proposals will not impose a huge burden on SGRPID. If only 5,000 out of 18,000 crofters are in receipt of IACS payments, I suspect that there are 13,000 crofts that are not subject to the GAEC regime and that are, therefore, not being inspected. You have suggested that SGRPID should carry out the inspections—that is fine, but that will impose a cost burden on SGRPID, as that is almost as many inspections as it would carry out for the whole of Scottish agriculture.
Indeed. I have heard about the number of crofters who submit IACS applications and the number of crofters who do not, but I have never seen that set down by someone who swears that it has been audited and is absolutely correct.
One of our recent witnesses noticed that there is some difficulty with succession in cases in which either a crofter has left no will or there are technical difficulties with the will. Are you satisfied with the way in which the law on succession works, or have you come across problems?
If the croft is defined as an asset, that is a totally different story. It does seem a bit harsh that the landlord has such an option when the tenant could subsequently be discharged from bankruptcy.
Yes.
Can I make one brief point?
Yes.
I am glad that Nick got that in. The current situation of making appeals through stated cases is an utter nightmare, and it puts the Crofters Commission in a position where it is almost acting as defence counsel against itself.
I thank you very much for your attendance. If there are any issues and evidence that you need to give us as a result of this meeting, please share it with us as soon as possible so that it can inform our future evidence-taking sessions.
One of the problems with the bill lies with the proposed register of crofters. Every crofter will, at some stage, be faced with registering his croft. The problem is that the bill concentrates on the map, and it fudges the costs. The only cost that has been specified so far is £80 for going to the register. The map is a graphical representation of what is important—of what is on the title sheet, which sets out the crofter’s rights on the croft. The title sheet must state precisely where the boundaries are. The scale of mapping is such that the boundaries can be fudged. If the croft bounds a stream, for instance, it is important that the boundary is not taken to be the management fence alongside the stream; if it is at the centre of the stream, then that is the boundary. Similarly, if a croft bounds a highway, it is important to note that the boundary of the croft abuts the verge, not the management fence. In the future, if someone who looks at the register wants to get a picture of whether there is any possibility of a ransom strip, they will see that there is no such possibility if it is quite clear that someone is on the croft once they come across the highway and across the verge.
Does the bill as it stands address any of those issues, or does it not define them well enough?
My area around Dornoch is a successful crofting area. As Jim McPherson says, there is plenty of employment, which means that there is adequate income—people have disposable income to build their crofts. However, it is virtually impossible for a new generation of crofters to come into what is a very staid system.
Sorry, I have been talking for too long.
That is the point. The fact that crofters are absentees equates neither to neglect nor to resident crofters working the crofts. In some cases, that would be the best arrangement, but it should be reached locally, perhaps with the involvement of the grazings committee. In the hypothetical scenario that you suggested, it is highly unlikely that three resident crofters would be managing or working 47 crofts that are held by absentees out of 50 crofts. I am trying to convey that crofts that are in the hands of absentees are not necessarily subject to neglect nor to being worked by other resident crofters, although that may be a solution.
The example was hypothetical: it could have been 25 worked and 25 not worked. The number is not particularly important to me, I am simply trying to establish whether absenteeism is an issue for you. If a large number of crofts in a community are not being lived in—by which I mean that the people are far away; they are not part of the community—but the crofts are not being neglected, is that a problem for the community?
Yes, indeed.
No right to buy.
How would you define absenteeism? When would a set of circumstances be the trigger for you to say, “There is a problem here with absenteeism”?
As I indicated, we will come on to the subject of neglect, but I am asking about absenteeism as a first stage.
In my view it should be abolished altogether.
It is a false criterion that cuts across many of the issues that Iain Maciver referred to regarding nostalgic attachment and so on. For instance, an absentee might seek to benefit from the market value of a site on the inby of the croft. There should be a presumption against such a course of action.
Yes. The distance of 16km is no longer relevant in the modern world.
My view is that it is not all that important at all, at all, at all. In the modern age, a 16km radius is inept in the extreme.
Leaving aside the distance of 16km, I have some sympathy with your view, but at one level all it does is create a trigger—whether it is 16km, 32km, 56km or 105km—for somebody to ask, in the interests of sustaining the population, whether it is a problem that the person is absent.
From other areas, we have had evidence of extremely high levels of absenteeism.
I want to follow up what Iain Maciver has just said with a couple of examples.
Crofting should not be seen as a substitute for a competent housing policy. There is a flavour of an idea that putting someone into a croft house as the croft tenant solves the housing problem, but it does not solve the problem of neglect—in a way, it creates a resident absentee. We have heard that the real problem is not absenteeism but neglect. If we want someone to be in a house, we should provide a house; if there is demand for a croft, we should let the croft tenancy be taken up by a potential crofter.
You would not be removing the trigger—the trigger would be neglect. Defining neglect is an issue. As generations progress through a croft, an older person may ease off and there may be a bit of what might be perceived as neglect, because the place is not worked as well as it was worked before. When a younger generation comes in, the croft is worked and the neglect disappears. I define neglect as a situation that a bit of effort would put right. The real problem is dereliction, where not only effort but a capital injection is needed. The trigger would be the point at which neglect became dereliction. It would take a cleverer man than me to sort that out.
John MacKenzie spoke about a requirement to maintain crofts. That may be more feasible if a croft is handed to someone who is already working other crofts and can build them into a larger unit. Is that trend likely in the crofting communities? If so, would it be a problem?
Supposedly, we have not been discussing neglect, but we will now do so. Much of what needs to be said about the issue has already been said; if we go over that again, we will be here until 8 o’clock, given all the other issues that we need to discuss. I was going to ask whether there are neglected crofts in your communities, but given the evidence that we have seen and what you have said, there obviously are. Is that a fair comment? Members of the panel are nodding. What causes neglect? Would the issue be resolved best by regulation or by incentive? Are you content with the way in which neglect is defined in the bill? If so, what should be done about it? How should neglect be reported and addressed? You touched on the suggestion that grazings committees should keep a register of neglected crofts. I invite you to discuss that a little more.
Thank you. Do other panel members have a view on neglect and the questions I put?
Neglect occurs when a crofter mismanages his stock and grazing and allows the croft to fall into a state of disrepair that affects his neighbours’ ability to croft—I refer to a lack of drainage, fencing and weed control, any of which is a sign of neglect and which impacts adversely on others who are trying to croft, farm or make good use of neighbouring land. In such cases, the neighbours tend to give up because there is no mechanism to address the issues. A lot of good land has come out of active crofting use for that reason.
Okay.
Both absenteeism and neglect were dealt with in the Highland Council submission, but with no great solution. I subscribe to what has just been said, but we have no marvellous solution. Neglect must tie in with cross-compliance and maintaining the land in good agricultural and environmental condition as defined by the Scottish Government rural payments and inspections directorate.
Do you not think that the first approach should be to investigate the cause of the neglect? The economics of a croft are like those described by Mr Micawber: if the income is £1 and the outgoings are 20/6, the thing to do is stop. A crofter is a wealth creator, really. In crofting as a whole, sheep and cattle turn a mass of high-volume, low feed-value forage into low-volume, high feed-value protein. That is the wealth creation. If a crofter is rewarded for that, they will go on crofting; if it starts to cost money, a sensible man will stop. You must find out how to square that circle.
I was just going to answer that. It would be dangerous to go down the grazings committee route because, if those who neglect crofts outnumber active crofters, the grazings committee could be made up of defaulters. The affected person should trigger action. If a crofter was prevented from doing what he or she wanted to do because of inactivity and neglect around them, they should have recourse to the commission and their own grazings committee. However, the grazings committee has a remit to look after only what is held in common. An individual crofter could make it known that he or she could not croft because of their neighbours’ inactivity.
If neglect is as obvious as has been stated, I hope that, given the bill’s proposed remit for the commission, the commissioners and the agents who work for the commission will be well aware of it or able to spot it. Through one system or the other, we could begin to address neglect.
I will briefly say something about neglect before addressing grazings committees and assessors.
To follow through on what we said earlier, if it was a choice for the tenant between allowing that young person to apply for a grant to improve his croft or being subject to action for neglect, I know which route I would want take.
I second Councillor McGillivray’s comment. All but one township in the whole of our estate has a grazings committee that is active or otherwise. We have a local area assessor, and there is a process for their nomination, but nobody ever goes near him. The commission uses him. If there is an issue, the commission seeks the area assessor’s opinion and advice.
We could end up with large numbers of crofters crofting with 10-year sub-leases and basically having no long-term security of tenure. I understood that part of the original idea was to give crofters security of tenure. If there were large numbers of 10-year sub-leases, would there be a risk of reversing the security of tenure of the people who do the crofting?
No, I am saying that that could be a trigger to ensure that the croft was worked in the meantime. For example, if I were an absentee crofter who worked in Glasgow, and I was unlikely to retire and return to the croft for 20 years, how should that be dealt with? Should regulations prevent me giving a commitment that, God willing and good health be given, I would return to the croft when I retired in 20 years? Would it not be sensible to say that I was giving a commitment to the commission, and that I had a local neighbour to take on the croft in the meantime to establish a base in the locality in the hope that he or she would get their own croft eventually, as a means of retaining that talent and interest in crofting in the locality?
To turn that around, if the neighbour could not get her own croft 20 years down the line, she could lose her croft when the owner came back, so in reality she would have no security of tenure. She might croft there for 20 years, but she would lose the croft when the other person, who had not been there for 20 years, returned.
I have a final question for Mr MacKenzie on how we can work towards a solution and get rid of neglect. If neglect is not to be noted by grazings committees and individuals do not want to raise it with the crofting commission or local assessors, and notwithstanding Councillor McGillivray’s suggestion that the department of agriculture would note whether someone was not GAEC compliant, how is the crofting commission to become aware of neglect? Not everyone claims support through IACS payments—5,000 people have not claimed out of 12,000 or 13,000 crofters. How then will the commission become aware of neglect, taking into account all the sensibilities that we have discussed? The commission has to become aware of neglect in the first place before it can do something about it.
I am not an IACS claimant, so I am one of the 5,000 people to whom you referred.
You will not trap me on that question.
I am conscious that time is moving on rapidly. I invite Peter Peacock to lead the questioning on the register of crofts, which is an important issue. If we have time, we will come back to the issue that we have been discussing.
I support that view entirely.
It is difficult to see why anyone would want to. I have two crofts. One—the original family croft—is tenanted; the other, which I acquired many years ago, is owner-occupied. I changed the status of the second one because I decided, for better or for worse, to indulge in a salmon farming venture and wanted to establish sea access and a shore base at the foot of the croft. Frankly, there was an element of sentimentality in my decision to retain the tenancy status of the original family croft, but I also recognised that a tenant crofter is in a more satisfactory situation in terms of support than an owner-occupier is. However, if that situation changed and the conditions were exactly the same, I cannot see that there would be any merit in individuals remaining as tenants; it would simply be an intrinsic thing in the mind of the individual concerned.
I come from a farming background and take issue with that suggestion. Where I live, there are owner-occupiers and tenants, and they all work together. I do not accept that people are less likely to work together where there are fewer tenants and more owner-occupiers. I would be happy to hear your justification for your assertion.
Individual farmers control what they rent or own. When a croft goes into owner occupancy, it is difficult to follow who the owner is. Land in a township could be in somebody’s ownership, and a croft may have a share in the grazings. If the grazings clerk has to phone or write all over the world to find the landlord and the tenant and ask them to consent to a development, that is a huge burden and a huge disincentive. That is where I am coming from.
No. Where there have historically been owner-occupiers, it is only right that they are treated in the same way. However, owner occupancy came from the Crofting Reform (Scotland) Act 1976, which failed to address the real problem of landlords not allowing crofters to do what they wanted to do. The idea was that they could opt out by taking ownership. It is not a question of dealing with the landowners. Owner occupancy was the only way out. The situation was further compounded by the right to buy, which again led people to opt out of crofting and go down their own route rather than working with the community for its benefit.
The point that has been missed is that owner occupancy applies simply to the inby land. Shares in common grazings remain in a tenancy. Quite simply, owner occupancy has no impact whatsoever on the outrun shares in common grazings.
Jim McGillivray is a councillor, so he is good at getting his point in. [Laughter.]
Several witnesses have raised the issue of ransom strips. For the record, a ransom strip is a thin strip of land that might be used to deny a crofter access to all or part of his croft. Is that a reasonable definition? Might the problem of ransom strips arise? If so, could it be solved simply by legislating to prohibit people from unreasonably denying someone access to their croft, or is something else needed?
I do not think that anything else is needed. It would be perfectly reasonable to ensure that each crofter had a right of access to their croft.
Our prospective tenants are firmly of the opinion that we are benevolent.
That is your decision.
The Stornoway Trust tries to encourage land use and land settlement by selling land at below-market-value rates. In doing so, we are obliged to grant reasonable access to each and every interest that comes for title—although a crofting development would not come for title. Access is granted for the purpose for which the land is given. If people come along at a future date and want to develop land for something that goes way beyond what the land was sold for, it is only reasonable that the trust can recover some of the value for the benefit of the community by granting additional access. Surrendering complete access to all dispositions would certainly impact on a body such as the trust or other benevolent landowners.
But how would you write the legislation? Some landowners might not be benevolent. If they could deny access, is there not a risk that they could misuse that power?
If a community landowner abuses their powers, the community has the power to get rid of them. A title has to show access. If someone wants access where none exists, they have to apply to the landlord.
Even in areas where ransom strips do not exist, there are Land Court cases in which estates are actively trying to show that they do exist and to enforce their rights over them.
The question that Peter Peacock did not ask was whether there should be a register. I take it from the responses to subsequent questions that there seems to be some merit in having a register if it is compiled in the right way. Is that a fair assumption? I see lots of nodding from the witnesses.
It would be helpful for the committee to hear how much development is occurring on croft land and whether there are specific examples of where development is causing problems or tensions in crofting communities.
It is possible to overcome Whitbread. Instead of going from a period of five years to one of 10 years as far as clawback is concerned, the clawback could be made zero years, and that would take care of the whole thing.
As far as Highland Council is concerned, any election process becomes a burden on the ratepayer.
Okay—we will take that point on board when we question the minister.
Next we will hear from Duncan Munro, who wants to make a point on estate management.
I would like to read out a statement to the committee.
Yes.
I hate that.
Hello. I have a smallholding and a non-croft holding at Castletown. I also have crofts in Ardnamurchan. I am—obviously—an absentee; we run sheep down there.
Finally, we will hear from Councillor Robbie Rowantree.
I thank my colleagues who gave evidence in the first part of the session. Several things that I will say will basically reinforce or nuance points that they made in their submissions.
As things stand, community councils are statutory consultees for most planning developments. There is capacity to ensure the involvement of the local assessor, the grazings committee or the commission in some form. I am not particularly fussy about how that is done, but a mechanism needs to be found to ensure that the crofting interest in communities is represented in the planning decision that is made and that the current system, which means that decrofting is guaranteed if a person can get through the planning system, is removed. The process should be more nuanced than it is at the moment.
No. I was going to say something about why we pursue absentees, but presumably we will come on to that.
It has made a significant difference. The type of organisation that the Crofters Commission is means that more or less its entire budget is for staffing. We have very few resources apart from hours that we can apply to tasks. The fact that the Government permitted us to retain most of our staff resource means that we have been able to free up enough time to set up a specific section that we refer to as the strengthening crofting section. Currently, it is made up of people who are involved in what we call the occupancy initiative. After a great deal of thought, analysis, argument and debate, I am firmly of the view that the most important thing about crofting is occupancy. The key is to have people living in remote and fragile communities, and I am quite happy to defend that position. That is why I am committed to pursuing the current initiative.
I have a question for Drew Ratter. Peter Peacock asked about the development function and the regulatory function working together. Would there not be conflicts of interests in that?
We have not really defined what we mean by development. At one end you could talk about something like the croft entrant scheme, which is in effect a grant scheme, which we used to run with HIE money as well as local authority money and our own money. There is a role somewhere between the development function and the regulatory function, which has perhaps fallen between two stools, which we might call the mediation function. In some cases, that can be time-consuming, but when you manage to broker some sort of agreement that sits well with the community, you can avoid the need for regulatory action and possible appeals and so on. There is a resource issue there. The mantra of every chief executive is, “If you gave us more resources we could do more.” There is perhaps a lacuna—perhaps something has gone missing. There are staff in the commission who used to do quite a bit of that work who cannot do it now because there is no time. Perhaps that needs to be thought about.
It can be either or both. The system of local plans could be considered a form of mediation in that the aim is to get the community—including crofters, landlords and others—to agree about which bits of land in a crofting area are suitable for new housing and which bits should be protected because they have more agricultural value. However, there are also more localised cases that are not addressed by planning. For example, there can be disputes about common grazings or what happens when a croft is decrofted or part decrofted or there are apportionments or whatever. In such cases, it can be helpful to have discussions before somebody makes an application on a matter and somebody else objects. It might well be possible to bring people together—I will not use the phrase “ to knock heads together”—in a way that avoids regulation and possible appeals to the Land Court. I could give any number of cases as examples.
We could discuss what system we would have in a perfect world, but in general terms, the election of a regulator is an unusual phenomenon in this country. In America, police chiefs, sheriffs and so on are elected, but in this country the sheriff court is not elected. An elected regulator and tribunal would be a new departure for this country.
Yes, with reference to your recommendation.
Does Bill Wilson have a small point to make?
We have had evidence to suggest that the interaction between the community right to buy in the Land Reform (Scotland) Act 2003 and the rights of crofters under crofting law is not reflected in the bill as well as it might be. Sir Crispin Agnew suggested that, although it does not appear to have been considered in the drafting of this bill, one measure that could be introduced would be to make one of the appointments to the Crofters Commission a representative of crofting landlords, presumably a community landlord. If we had had more time, we might have been able to put the question to the previous panel. It would be helpful to hear your views on Sir Crispin Agnew’s point that crofting law does not take into account the role of community landlords under the 2003 act.
Law in general does not distinguish between one type of landlord and another. A landlord is a landlord is a landlord. I am neither a parliamentary draftsman nor a lawyer, but to try to find a mechanism to distinguish between good and bad landlords sounds pretty tricky.
Just tricky?
You do not see a value in having in the bill a requirement that one of the appointees to the commission be a community landlord representative.
The argument that Scottish Government officials put to us earlier in the process on why a certain proportion should be elected and appointed was precisely to secure a particular representative mix of skills, experience and so on. That seems to run slightly contrary to what you say.
Not entirely. It is true that interests have to be represented when we are dealing with crofting, but the reason why I think that an appointed element should remain is there is a significant public interest, for which the minister is responsible, that requires to be represented. I think that that is slightly different from representing a sectoral interest.
It may be worth looking at how we got to where we are. In the early days of the Crofters Commission, there were significant landowners on it. The first commissioner for Orkney and Shetland I can remember was Robert Bruce, who was the owner of one of Shetland’s largest crofting estates and actually a very good commissioner. The position shifted entirely from that mix due to pressure from the Scottish Crofters Union, when it was a serious organisation in the late 1980s. It ran a massive campaign to get more crofters on to the commission, which it did with enormous success, to the point at which pretty much everybody who has been a commissioner over the past decade has also been a crofter.
Yes, I believe that they should. I think that I can say that without speaking from interest because, obviously, I will be gone by the time that such a decision is made. I am not looking to bolster my own position, but I believe that the minister should make that appointment.
I can see both points of view. At the moment, there is no power to charge, so it is not something that we have had to consider. Some regulatory applications and decisions create an asset of considerable value for the person who has applied and gained from whatever the regulatory outcome is. I can see that an argument could easily be made to say that, having made a significant benefit from that, such people should repay the public purse for the process that has got them that benefit. It will not be a popular argument, but I try to be as fair minded as I can.
An underlying concern that I have picked up about the proposed charging regime relates not just to the individual cost to crofters but to the possibility that the Government might effectively freeze its grant-in-aid contribution, which is also part of the proposal, and allow charges to be increased so that the budget can be balanced. That concerns me for two reasons. First, I was very surprised to find that the financial information that you gave to the Finance Committee contained not one pound sign. After all, as Nick Reiter said earlier, it is almost the bounden duty of chief executives to plead for more money.
Whereas the ethos behind the previous bill was to reduce and streamline regulation and make things more efficient, the fundamental basis of this bill is the belief that crofting requires more regulation. Given that the Crofters Commission budget is made up entirely of staff and labour costs, having to carry out any extra work will obviously cost more. Nick Reiter will probably be able to furnish members with more detail, but we have certainly modelled various scenarios in that respect.
The only number that we can work with is in the teens of hundreds. We have sent letters out to absentees of more than 10 years’ standing whom we know about. As I keep emphasising, we can only know what we know. We can operate only on information that we receive one way or the other. It is certainly possible that the number of absentees exceeds 700. As things stand, if an application that relates to any of the regulatory aspects comes in, we have no choice but to process it. We also have limited choice as to how we process it because, as Peter Peacock said, people say that things take an endless amount of time. Many of the lawyers I know think that decrofting is eye watering. All the time spent on it is time that the Scottish Parliament inserted into legislation. There are statutory periods for X and statutory periods for Y. It is difficult to telescope any of this kind of activity.
I start from the realistic point that, over the next few years, new resources are going to be very hard to come by. As a result, the real choice facing the crofting commission is not how we get more resources but what we do with our existing resources. That will be largely determined by two factors. First, some of our actions will be purely reactive. With regard to the duty on the new crofting commission to make a determination within 28 days on all applications for consent to be absent, I have to say that, if we received 700 applications in the first year, we would not be doing much else but dealing with those—unless the plan that the new commission had drafted, had consulted on and then had agreed by the minister stated that such applications would be dealt with by giving three years’ grace, except in terrible cases. In other words, the plan could mitigate any effects and ensure that certain decisions could be taken very quickly.
The Crofters Commission responded to various requests for information during the development of the bill. I see its role as being to give dispassionate advice rather than to be responsible for the development of legislation. I would regret it if the Crofters Commission was not the adviser on the year-round, normal operation of crofting, because it is the body that is most intimately involved with crofters and it has a body of expertise and knowledge that does not exist elsewhere.
We are a particularly strange organisation, in some ways. I am in a strange position because I am a civil servant and I am also chief executive of the Crofters Commission. I am answerable to my sponsoring division as regards the organisation’s finances and staff management ahead of also being answerable to our convener and commissioners on those aspects, so there is a dual role in that respect.
Okay. Liam, do you want to move on to talk about the register of crofts?
If the new register as proposed in the bill goes ahead, we will still need to do pretty much everything that we do at the moment.
No, a map-based register will not reduce our workload because we still have to have the information. As the casework comes in and we deal with it, we will still need the information. We could gather additional information if necessary. We could do the first stages of processing for the Registers of Scotland, as proposed in the bill. How much extra work that would be would depend—the devil is in the detail of how much checking of discrepancies we would need to do and all the rest of it. What we do at the moment is largely what we need to do to be able to process our applications. We have started doing quite a lot of mapping. We are using digital mapping, and it is building up as we go along. However, unlike what we do at the moment, digital mapping has no status in law. It cannot prove where the boundaries of so and so’s croft are; it is just to allow commissioners to make decisions on applications.
I have a final question. It is perhaps unfair, but I have not visited your croft, as Peter Peacock has, so I feel under no obligation to be fair. Another concern that was raised yesterday was about where the register will reside, however it is arrived at. The concern is that, were it to reside with the Registers of Scotland, it would either duplicate the information that the Crofters Commission already has, or be taken out of the crofting counties, where it would be far more appropriate for it to be retained and managed by the Crofters Commission. Do you have any view on that?
Online access to the digitised information on the map is the key issue. I would not care where the register was held as long as people had free access to it. As a crofter, I would be aggrieved if I discovered that I had to pay to gain access to it. I would like to be able to go online and look at it whenever I felt like it.
You have better broadband links than many of my constituents.
I am completely satisfied with the IACS maps of the land that we have on my unit at home. They show the land that I think that I have—I have no argument with them. That is only my personal opinion, but IACS seems a fairly good base from which to start that kind of mapping.
I do not know any crofters in Shetland who do not submit an IACS application form.
We have been told that about 10,000 crofters are not mapped because only 5,000 are, and Nick Reiter said that there are about 15,000 crofters or thereabouts, so it follows that 10,000 are not mapped.
There are 18,000 crofts?
I have heard Derek Flyn give a very good description of the potential problem with ransom strips, and what he said could be true. I talked earlier about how boundaries wiggle around and are then straightened out. Conceivably, areas could be missed out and the landlord could discover that they own land that is not croft land and, if they were a very bad landlord, they might use that as leverage to achieve some aim. I had not thought about it before, but when Derek described that at the meeting in Inverness I was convinced by his reasoning.
I have one small query. I want to be clear that you are being non-territorial when you say that it does not matter where the register is. It could be kept by the keeper, but the problem with that is that the keeper has to be self-financing by law, and therefore fees have to be charged somewhere. The Crofters Commission is not in that unfortunate position. If you were asked to keep a map-based register using all the sources, whether or not it was community based, would you be able to do that?
You have opened up another point. From your point of view, having a map-based register would be of assistance purely as a means of regulation. That would be its only function.
Again, we would need to assess whether there was going to be parity with all other agricultural units. In fact, that process exists at the moment in so far as SGRPID does periodic whole-farm inspections, which fall on crofters and farmers equally. That process of inspection is nothing to do with the Crofters Commission, though.
I have thought a lot about the 16km limit. A trigger point or event of some kind is necessary, and I would just leave the proposed limit alone. It simply triggers a look at or a discretionary consideration of something. It does not trigger action. If you do away with it, what would you replace it with? Would it be the greatest distance that someone can fly in a day in a helicopter, or 50 miles? It is extremely difficult to come up with something that is unarguable and will not just be seen as arbitrary, so I would leave it at 16km, with the background that it does not trigger action; it simply triggers attention.
I hear what you say, but I just want to be clear about that. You are not against taking action on neglect, but your position is that you would give primacy to maintaining population, which is affected in some way by absenteeism. Might land use provide the test of whether an absence was significant?
The 2007 act sort of defined positive use of the land, and the bill will provide a broader definition. I certainly feel that land use is fundamental to crofting activity, but land use can be of many different kinds.
We have. I do not think that we are going to become a private detective agency, going around inspecting 18,000 crofts at regular intervals. That would have massive resource implications for a start. On my watch, the commission will not become an agency that endlessly peeps in at people’s windows to check up on them, if I can help it. To an extent, we will have to continue to be dependent on people giving us information when it is their duty to do so or when they look at the register online and say “Oh, that’s not right. I must tell the commission.” I hope that more of that kind of thing happens.
A considerable number. I do not have that information in my head, but we can get it for you.
That is probably something that the committee needs to find out.
I think that you should get the audited figures from somebody. They just do not sound right to me.
Let us move on to the regulation of development on croft land.
The bill will provide additional grounds on which the commission can refuse a decrofting application. How will that affect your decision making? Should you be a statutory consultee on all planning applications for croft land? Should there be a presumption against development on croft inby land?
We should use the existing system better. We are now a key agency, although the Government has not so far told us what a key agency is. The Planning etc (Scotland) Act 2006 requires a high level of consultation, and crofters, crofters’ organisations and grazings committees must engage in that process. We can support them in their considerations, but they must identify locally important land and be on the record as at least trying to get that land zoned as land that must not be built on. That is the key in the beginning.
I believe that it would because if the local plan was developed according to how I have outlined, people would have had their say and the areas that they had mentioned would have been been zoned. It would be extremely reasonable and helpful if we could comment on specific cases in which planning was being granted on land that had previously been zoned for no development. I would value that power.
Bill Wilson has a question on succession.
It seems a very harsh punishment for a particular sector when others would not suffer the same. It is inconsistent.
Are you saying that the value of a tenancy, if it has a value, should not be taken into account?
Several witnesses, including Sir Crispin Agnew, recommended that the bill could look at simplifying the appeals process. The Crofters Commission would support that whole-heartedly. It would make the process easier for the appellant, the Crofters Commission and the public purse.
I hope that that does not mean that we have not quizzed you hard enough.
No, I would not say that.
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