Official Report 360KB pdf
I welcome members of the public, the press and colleagues to the meeting. First, I remind people to switch off their mobile phones and BlackBerries and not to place them anywhere near the broadcasting system.
I am a member of the Scottish Crofting Foundation.
I, too, am a member of the Crofting Foundation.
Does Maureen Macmillan have an interest to declare?
No. I put my pen up because I wanted to get in first with a question.
You were queuing to get in. I thank colleagues for their declarations.
I am head of crofting policy at the Scottish Executive and I am here in that role.
Aileen Imrie and Ethel Burt are solicitors from the Scottish Executive Legal and Parliamentary Services team.
Thank you for the opportunity to give evidence to the committee and to open the session.
More than half of the committee members are queuing up to speak, so I shall work my way around the table, starting with Maureen Macmillan.
I want to kick off by asking about the Crofters Commission's vision for crofting. The bill is part of our land reform legislation. With other such legislation, such as the Land Reform (Scotland) Act 2003 and the Abolition of Feudal Tenure etc (Scotland) Act 2000, we all knew what we were focusing on. However, the Crofting Reform etc Bill, by its very nature, makes it difficult for us to focus on what we are trying to achieve for crofting, as much of it comprises a series of amendments to other legislation. As you know, a lot of concern has been raised that the bill does not address problems in the crofting community. Will you say more about what those problems are and why the commission has been reluctant to deal with them? People thought that you already had the powers to deal with problems such as absenteeism, but those problems have not been resolved. What will be different as a result of the bill?
One of the significant factors in the current legislation is that it applies in the same way to all crofting communities, regardless of their circumstances. Different crofting communities have different views of what crofting is, how it should function, what it is for and so on. However, the commission must take its lead from the legislation. There is limited latitude. The commission has a certain amount of discretion, but varying measures such as absentee action can be quite a tortured, resource-intensive process. You say that the commission has not used the powers that it has, but it has tackled absenteeism in a significant way. In the past nine years, it has experimented with engaging communities on how they would like absenteeism to be tackled. It is determined to tackle absenteeism and to persuade communities that it would be good to do that. However, some communities are more resistant to that approach than others. Only two years ago, there was an independent evaluation that suggested that the commission had not only tackled and resolved something like 1,400 cases of absenteeism, but had also through absentee action delivered about 600 new people to crofting communities. That is a significant increase in the population of remote communities.
How will you address that issue in the bill? Will there be a provision to ensure that there is some interaction between planning and crofting?
As I suggested in my opening statement, the interaction will be through the local policies mechanism. The proposal in the bill allows a number of things. It will allow the commission to work with communities to establish how they want crofting to be developed and used, how they want absenteeism to be tackled, how they want land to be released for development, what land they do not want to be released and so on. That is one of the significant propositions in the bill. The other is the proper occupier proposal.
You said that some communities are not willing to engage with the commission on absenteeism. Will they be willing to engage with it on planning procedures and the other areas that you mentioned? I can imagine that some communities will not want to do that. They might want to build as many houses as they can and get the money.
For the crofting community, the rights rest with the individuals. The community can influence how the land is released and worked. For the past year or so, the commission has been working with Highland Council on the local plan for Kyle of Lochalsh and Skye. That experience suggests that a third of crofting townships were willing to work with the commission to consider where land could and should be released for development. The others were less interested, but one third is not a bad level of engagement.
But that is a difficulty.
Indeed.
I have a question for Mike Watson. You are described on the agenda as the bill manager. I take it that that means that you oversee everything that is done in the Executive's name, as it were.
Yes. My main responsibility is for the logistics of seeing the bill through its parliamentary stages to ensure that the policy that is worked through meets the requirements of both the Parliament and ministers.
Are you satisfied that the consultation analysis document is a fair and, more important, an accurate reflection of the views that were expressed at public meetings?
I do not want to duck the question but, unfortunately, the consultation happened prior to my taking up my role as bill manager. I will ask Shane Rankin to answer the question.
Why would he be in a position to answer it?
He has been the bill leader from day one. I took over as bill manager on 17 January. The consultation analysis was done prior to that.
Mr Rankin, is the consultation analysis document a fair and, more important, an accurate reflection of what crofters, practitioners and others said at the various meetings throughout the crofting counties?
It does not purport to be a collection of everything that was said at every public meeting.
I did not ask whether it was that. Is it an accurate reflection? It is not a minute or a verbatim report, but does it accurately reflect the views that were expressed by crofters and others?
The consultation as a whole, yes.
In that case, the Scottish Crofting Foundation has got it wrong.
In what respect?
It believes that the consultation analysis does not accurately reflect what was brought out in the public meetings.
I do not wish to play with words, but the public meetings were an effort to engage the public in considering what was in the draft bill. The meetings were not an attempt to elicit opinion on the bill. The bill is a complex document. It is unlikely that one would get considered views on its contents on the basis of a half-hour presentation and a couple of hours of debate and discussion. The analysis is an accurate reflection of the consultation. The public meetings were an effort to encourage reaction to the bill and substantial responses were made in writing after the public meetings.
I put it on the record that I do not accept the veracity of much of the report. Frankly, it does not reflect the views that were expressed by people who represent the Scottish Crofting Foundation.
Discourage.
I meant discourage, sorry.
In my response to Maureen Macmillan's question a few moments ago, I explained that there are occasions on which absentees seek to ensure that they profit from the croft before their tenancy is terminated. The proper occupier proposal creates a mechanism to avoid that.
In what way?
It ensures that, if the owner of the croft does not live on or near the croft or work it, they can be challenged at an early stage by the commission.
Another fundamental matter that has been the subject of much comment is that of assignations being sold. Can you assure me, and more important, the people I represent, that if the bill were to be passed in its current form, crofts would not change hands for £86,000 or £96,000 as opposed to £6,000?
At the moment, some crofts are exchanged for a few thousand pounds whereas others are exchanged for substantially more. Crofts vary hugely in terms of the quality of the land and even the assets that are on those crofts—houses are associated with the most expensive crofts. It has been possible to sell croft tenancies for many years and the bill does not set out to prevent that.
I have a final question about Mr Rankin's role. I know that this might be unfair, but these evidence-taking sessions are not meant to be about fairness. You are head of crofting policy as well as chief executive of the Crofters Commission.
Yes. I even volunteered to do this.
Are the roles compatible?
Yes, entirely compatible. Current legislation requires that the Crofters Commission provides advice to ministers. It is therefore entirely reasonable that the chief executive of the Crofters Commission is an adviser to ministers.
And heading the bill team?
I take the senior civil service lead on the bill. What is more important about my role is that a senior civil servant with considerable knowledge of crofting law and regulation is involved in developing the bill. The bill would be disadvantaged without that knowledge and experience. It is probably fair to say that that applies elsewhere in the senior civil service.
I follow on from some of Alasdair Morrison's latter points. You have been in charge of the Crofters Commission's activities in recent years and now you are making suggestions about how its powers should be enhanced. How did the commission tackle the transition from what was an agriculture-based activity in the 1960s and 1970s to the multiple uses of crofts today?
I am not sure that I follow the question—did you ask how the commission tackled the period in the 1960s and 1970s?
How are you tackling today the issues that arise for crofters of the many more potential uses for their crofts compared to those available in the 1970s?
In terms of what the bill proposes?
It has to be in terms of what the bill proposes.
Okay. The bill makes it clear that other uses for crofts are legitimate, reasonable and acceptable and provides support for those uses. It recognises the reality in crofting communities that many other economic activities need to be undertaken and that crofters have a fundamental asset in their land that can be used by them in an economic way. In that sense, the bill liberalises the situation.
You stated in your opening remarks that the opinions of people in townships are important to the creation of an appropriate policy for today. Why, when the submissions were received, did you ignore the calls for crofters in the crofting areas to be given the right to decide on township plans and the creation of area policy, for example?
I think that I said that the proposal to delegate regulation to local townships, which had been in the white paper, was dropped from the draft bill. In their responses, crofters did not show that they wanted that power or responsibility.
Accepting the fact that people feel uncomfortable about taking decisions about what happens to their neighbours, what is the future role for decision making that fits the needs of wider areas such as Shetland or west Lochaber? Let us think about the potential in those wider areas. In their submissions, people suggested that that might be the appropriate level at which policy should be developed. I do not see anything in the bill about that, however.
The bill proposals allow for local policies to be made at the level of the individual township—I think that it is either one or two townships—and by a greater number of townships. Local policies can be made at whatever level people consider is the most appropriate; for example, at the level of the Isle of Lewis, the Western Isles or Lochaber. The policy is not intended to be driven by the demands of one township.
What measures does the bill contain to enable crofters to make and agree those policies at an area level?
The bill proposes the creation of local panels to consider crofting issues. I suspect that those panels will be the force that will drive the level at which local policies will be determined across the crofting counties.
And the panel will be appointed by headquarters.
Yes. The panel will be appointed by the Crofters Commission.
So it will not necessarily be representative of the opinion in the area.
At the moment, the commission has a network of assessors—I think that there are about 80 of them—who represent all the crofting areas. Certainly, the assessors see themselves as representative of the crofting areas in a significant way. Many of them have been with us for years; some of them for decades. I suspect that anyone who was willing to come forward and work on a panel and be representative of their community would be a strong advocate of that community.
But you are talking about people being appointed, not elected. Such a proposal is not about the creation of a force from below to take forward decisions on crofting in an area; it is about appointments coming from the commission.
Yes, but bear it in mind that the commission and the bill seek to balance a number of interests and not simply to respond to those who are particularly active in crofting. Other issues are at stake.
You said that the Crofters Commission takes its lead from legislation, but I presume that you have quite a lot of discretion in how you discharge your responsibilities.
We have some discretion.
From whom do you take advice on how to exercise your responsibilities?
Advice comes from the commission's board, from local assessors to a degree and from the Scottish Executive, in the sense that the commission operates schemes as an agent of the Scottish Executive. In future, the commission will determine its own grant schemes and will take its own counsel on how to focus and target such pieces of work.
How does that happen? Do you hold public meetings?
We have a series of development managers throughout the crofting counties who are actively involved with crofting communities in a variety of ways—through grazings committees, initiative at the edge, contact with local enterprise companies and local agricultural offices.
What direct feedback have you had from the various players on how you interpret the provisions on assignations?
They are content that the right to assign should remain in play and remain a fundamental right for crofters.
Have you considered a directly elected commission?
That was suggested in the consultation on the draft bill but was not developed, for a variety of practical reasons.
Will you explain them?
The commission is a relatively small organisation. Under current legislation, the board has executive responsibilities that are not in keeping with those of a modern quango, in which a board's role is predominantly to scrutinise and oversee the actions of the management and the organisation. The election of board members would create several practical issues. Would the board have to be significantly larger? Would the board have sufficient business to undertake? What would be the cost? Who would elect the board?
Given that the commission is for crofters, I would have thought that crofters would be the electors.
Which ones?
I have a further question. The bill creates a proper occupier condition—it says that crofters must put the land to "purposeful use". What is the definition of that? Does it mean quad biking or keeping a pony in a field?
I am trying to remember the precise definition; perhaps one of the lawyers could remind me of it. The term concerns the use of land purposefully.
Is that equivalent to land-based enterprises?
Yes, it could be.
It could be.
Yes. I am reluctant to give you a definition because I know that there is one in the bill, but I cannot quote it off the top of my head. We can send the definition to the committee.
We are keen to have it. The issue is a key one, which will be brought up at stage 2 rather than at stage 1. It is important that we have the definition on the record so that when we take evidence from other witnesses everybody knows what a proper occupier would be and how that would be defined.
Would Ethel Burt like to comment?
Yes. I can read the definition from the bill.
Where are you reading from in the bill?
Section 11(2). The section amends the statutory conditions in the 1993 act.
Does the section define "purposeful use"? It refers to a croft being put
Further down the page, proposed new paragraph 3A of schedule 2 to the 1993 act states:
So as long as the land is fit for cultivation any use is acceptable.
That seems to be right, but the definition is not specific—it is general.
An issue that emerged in the consultation was the impression that had been created that a purposeful use other than agriculture would in itself be enough to satisfy the statutory conditions. That gave the impression that the rest of the croft did not have to be cultivated or maintained, which was not the intention of the proposal in the draft bill. Therefore, it has been made clear in the bill that although a purposeful use other than agriculture on a part of the croft would be acceptable, the rest of the croft either has to be used for agriculture or has to be capable of being used for agriculture. It has been made clear in the bill that has been introduced that it is not a matter of discouraging agriculture by allowing a "purposeful use" on a little corner of the croft.
Section 11(2)(i) adds to paragraph 13 of schedule 2 to the 1993 act the provision that
As "purposeful use" is being defined by what it is not rather than by what it is, the scope for what it could be is wide.
Yes.
I think that members want examples of what the uses could be.
We want a sense of how the definition would apply in practice and examples of what it would mean in given circumstances.
The uses could include management of the environment, use by quad bikes, the establishment of a tourist attraction or forestry. It could be use for a business activity that might involve structures being put in place on part of the croft. Essentially, it could be anything that uses the land in a productive way.
Proposed new paragraph 3A of schedule 2 to the 1993 act states:
The rest of the land would have to be fit for cultivation.
So only a bit of it would have to be used for that purpose.
All or part of it.
I have a real dilemma in respect of the bill, because I have heard so many conflicting views on what it is intended to achieve, not least from ministers. Rhona Brankin is on record as saying that it contains no new freedoms in relation to buying or selling crofts, but her boss Ross Finnie says that the Executive has no right to interfere in a free market of crofting land and that crofters should be allowed to cash in on their assets—I think that I quote him correctly. Who is right? Is crofting land held in custodianship, or is it the property of the individual, to do with as he or she wishes?
There are two questions. Both ministers are right. For many years, crofters have been entitled to sell on their assignation, if they wish. That was encouraged in the early 1960s as a mechanism for encouraging older crofters to give up their crofts to ensure that they got a reasonable return from their effort and had some incentive to release their crofts. There is no conflict between the ministers' comments. There is no new free market in crofting.
How can there be a free market when people acquire their crofts at a rock-bottom price and, some five years later, can sell them for the kind of sums that Alasdair Morrison described? Surely that is a skewed market.
What you say about buying the croft and selling it on is different from what Alasdair Morrison talked about. He was referring to the tenancies that are being sold. That has happened for decades—there is a right to assign the tenancy. However, the market cannot be free if there are restrictions on the transfer and if there are obligations that the outgoing and incoming tenant must fulfil. There is a market, but it is restricted. There is a degree of regulation, although the accusation is that regulation is not sufficient.
In recent times, the Crofters Commission has taken to arguing that its powers are inadequate and that it cannot be held responsible for the erosion of crofting communities through the transfer of tenancies to non-crofting hands. Should not the bill seek to address the powers that you have and, perhaps, to improve them? Should it not at least test whether you have those powers? Would not that be better than saying that you do not have the powers, throwing up your hands and saying, "Let things rip," as you appear to be doing?
The bill addresses the powers that the commission has and should have. The Executive and the commission are not throwing up their hands. We could take a different approach, be totally draconian and say that there is no discretion in anything. We could take the approach of saying that an absentee is an absentee and that assignations should not be sold. However, for whatever reason, we are where we are with the legislation and the crofter's right to buy exists. Crofters value that right, more in some communities than in others. There is only 1 per cent owner occupation in the Western Isles and 30 per cent owner occupation in Shetland. The overall figure is heading towards 30 per cent. There are different expectations and uses of the rights, which exist first and foremost to protect crofters against awkward or difficult landlords. That is why they are there and need to remain.
I want to move on to a different aspect of the bill: the creation of new crofts, particularly outwith the crofting counties. The bill states that new crofts may be created in an area that is specified by an order. What sort of area is that likely to be? Is it likely to be a county or the area within a local authority's boundaries? The wording is imprecise.
It is a loose term. The aspect of the bill that you mention was a reaction to the strength of opinion that was shown in Arran during the consultation. There was also a reaction by members who represent north Perthshire and Aberdeenshire when the Deputy Minister for Environment and Rural Development gave evidence to the committee. They thought that there was scope to use crofting as a device to encourage rural development in their communities. The bill allows for the extension of crofting tenure to places in respect of which an argument for extension can justifiably be made and does not put limits on what an area can be. Arran is an obvious self-contained area that might be one of the first areas to come forward.
Do you envisage an area, for example in the north-east, being a county or local authority area? Could Aberdeenshire or Moray be an area?
I suspect that an area will be smaller than that. It could be Strathdon or an area in which there is an issue. It is more likely that an area will be somewhere where there is an opportunity, a pressure or a willing landlord to work with people. Land for which Government ministers are responsible could be a target. I suspect that it is a question of opportunity.
I would be interested in having an indication of the benefits and disbenefits of having a crofting tenure as opposed to having small landholder status. Might the lawyers with you like to expand on that?
It is probably not so much a legal question as a policy question. People in Arran certainly perceive there to be an opportunity to be connected with the right to buy and to access housing and other grant schemes that are available to crofters but are not available elsewhere. Those are the fundamental attractions.
So there are attractions for tenants and landholders, but are there disbenefits for landowners?
Landowners may see a disadvantage in part of their estate being taken away, but the bill makes provision for a compensation device for landowners who are affected by anything that might emerge under that provision. Therefore, the disadvantages should not be significant.
The commission will have the final say about whether an application will be accepted. Would one of the criteria it considers be the effect on, for example, an estate or surrounding landholdings?
The general approach is for the commission to consider the interests of the individual, the landlord and the community. That will continue.
So we must watch this space.
Yes.
I would like to explore one or two issues that have arisen from what has been said so far. I am interested in the whole issue around why the proper occupier proposals were made later in the process. In particular, I am interested in going back to the question that Maureen Macmillan asked at the beginning of the session. What is your vision for the crofting system under the legislation? Is it to be a free market or will it be more regulated and go back to the basics of crofting law, which were to give a family security of tenure at a reasonable rent?
As I said in my opening remarks, crofting has been very valuable over many years and has sustained the population of many of the remotest communities in Scotland. It has also sustained agricultural activity and environmental biodiversity. Those things are and will go on being very valuable.
You seemed to indicate that the right to buy is an issue. If I am right, you said that we are where we are with it. Could you have changed that with this legislation if you had wanted to? Can you change it? Do we have to be where we are?
By that I meant that the right to buy a croft has existed since the 1970s and the right to assign has existed since the 1960s.
If you saw the right to buy as causing any problems with what you are trying to achieve, you could have revisited the issue through the legislation.
Theoretically, the right to buy could have been removed, but that would not be welcomed nor would it be successful. It would put the power back into the hands of landlords to the disadvantage of many crofting communities.
You cannot just say that we are where we are, because you could have revisited the issue if you had wanted to.
We cannot force the 30 per cent of owners back into the system, if you like, other than by beginning to apply the same types of condition that apply to croft tenants. That is what we are doing through our proposed mechanism.
I have another couple of questions I would like to ask you, although I would have liked to explore that issue a bit further.
The question is whether the Crofting Commission can go on vetoing assignations. In the current circumstances, one challenge is that croft tenancies have attracted much more interest in the past few years than they have for many years previously. The level of interest varies from community to community and it has varied for a long time.
That is what I am asking. Surely that is why the commission has a power of veto.
The bill does not specify what the perfect candidate might be. Should it be the person who will use the land agriculturally or the one who will live on the croft? Should it be the person who already has 10 crofts or the one who has no crofts? How should the criteria be balanced, given the opportunities and rights that belong to crofters in such situations?
Convener, I have one last question, but I think that Alasdair Morrison wants to ask a supplementary question on the power of veto.
The problem is that our evidence session has already gone on for an hour. I sense that all members would like to ask supplementary questions.
Convener, I just want to make an observation—
I will allow a point of clarification, but I do not want any supplementary points.
I point out that the issue of the veto, which Elaine Smith raised, and the issue of the commission's composition, which Mark Ruskell raised, demonstrate the absurdity of Mr Rankin's role—
That is not a point of clarification. You have already made that point pretty effectively.
My final question concerns the Scottish Crofting Foundation's submission to the committee. The submission states:
I am not sure that that is correct. The SCF's submission contained 23 points, which have been reduced to something like 11 for its submission to the committee. We took up a number of the SCF's suggestions.
I quoted from the SCF's submission to the committee. Perhaps we can clarify the issue with the SCF.
I want to ask about planning, which is also mentioned in the Scottish Crofting Foundation submission. There seems to be a fundamental relationship between crofting legislation and planning legislation, given the huge pressures for housing that are driving up prices. If there is to be a free market, should people who want a house in a crofting area need to be a crofter or should they be able to buy croft land merely to occupy the house, with the result that local people who want to croft have no access to affordable housing?
The question is whether planning or crofting legislation is predominant. In the context of determining where development should take place, planning legislation rather than crofting legislation is predominant.
Surely the Taynuilt decision flags up the issue of the kind of housing that should be built.
I do not quite follow the question.
In that area, affordable housing was not seen as relevant, so luxury housing was built. The connection with crofting was not seen as relevant at all. The two systems seemed to be totally different, with no link between them.
Yes, but under the bill the Crofters Commission will be responsible for regulating and developing the crofting system and the use of crofting land. It will not determine affordable housing or planning policy, although it will be able to contribute to those aspects through local policies. Indeed, the commission's work over the past year or two has demonstrated that ability.
Should you be a statutory consultee on planning applications to ensure that you can make such an input?
That proposal has been explored with Rhona Brankin and Malcolm Chisholm and I am sure that it will be explored further by Mr Chisholm as consideration of the Planning etc (Scotland) Bill progresses. However, I gather that the issue of who will be consulted will be worked through in secondary legislation, not set out in the bill itself.
Those of us considering the Crofting Reform etc Bill feel that the whole system links together. Indeed, one key point that has been raised with us is that, because the price of crofts has increased so much, people who live in crofting communities cannot afford them. I am trying to tease out the links between all these crofting, affordable housing and planning issues; who is responsible for which element; and the opportunities that the bill provides to let people live in rural areas that will otherwise become depopulated.
The difficulty with the housing and planning elements arises partly because, in many communities, crofting land is often the only land that planning authorities consider to be suitable for development. Because no other land is available, there is pressure to ensure that that land is released for housing. Planning authorities are invariably liberal in their approach to new housing because they want new people in these communities. Indeed, one might say that, at Taynuilt, the authority took a liberal approach when it supported a planning application for new housing on croft land.
Eleanor Scott has not yet asked a question.
Thank you for giving me the opportunity to ask questions, convener. You have already asked one of my questions, so I will be quite brief.
As members can see, the commission is very close to the Executive at the moment. Its scope for varying its approach to grant schemes and so on is negligible. The Executive operates significant grant schemes for crofters, including housing schemes, agricultural schemes and cattle schemes, but the rules and focus of those schemes are determined by the Executive and have a one-size-fits-all approach throughout all crofting areas. There are many other ways in which crofting could be encouraged to develop. The commission has been close to the croft entrant scheme for many years. That scheme is funded by Highlands and Islands Enterprise and increasingly by some of the local authorities and it has had a significant impact. A more independent commission than we have at the moment could come with creative schemes of that type.
Do you mean independent of the Executive?
I mean independent of direct, day-to-day control and influence by the Executive over those major sources of funding.
And no less independent of the body of crofters than it is at present. We have heard that you are not proposing direct elections. At present, it is possible for a crofter to become a commissioner, but will they be able to take up whatever position will exist when the commission is a non-departmental public body?
A board member.
Yes.
I am trying to figure out how many of the board members are or have been crofters. The answer is quite a few of them, if not most of them. One would expect board members of the new commission to have a strong crofting connection or to be crofters themselves. I would be amazed if crofters did not come forward to become board members.
How much say will the board members have about the direction of the body?
The role of the board in an NDPB is to consider strategy and direction and oversee the organisation. The board considers whether the organisation is going in the right direction and doing the right things. The new board will have much more latitude to do that than exists at the moment.
What about the accountability of the board and the body?
The management and the organisation are accountable to the board. What invariably happens with an NDPB is that ministers provide strategic guidance to the board. Annually—or periodically—ministers say, "We want you to do these big things. We want you to address these big issues." I expect that that approach will be taken in this case.
Will the board members be appointed by the minister?
I am trying to remember. The chairman and the board members will be appointed by the minister.
Do you think that there is a shared understanding between you, those who gave evidence and the committee of what crofting is and should be?
No.
Perhaps we can explore that as we take evidence in the next five weeks.
I think that the Crofters Commission will be coming back to give evidence again.
Yes. This is not our last chance to discuss the national, strategic approach in the bill. I have tried to be generous to members—whether or not they think that I have been—and to let them ask all the questions that they had for the first panel. I knew that there would be a lot of questions.
Meeting suspended.
On resuming—
We will now hear from the second panel of witnesses. For those who are watching the proceedings remotely, I mention that I had a sense that the coffee session that we have just had could have continued all day. A lot of networking was going on. We might try to capture the spirit of that over the next few weeks, so that people talk to one another. However, I want to get on with hearing from panel 2 now.
Derek Flyn has commented in his submission:
I feel that the register of crofts is the most important tool. At present, we have a strange system, which is not easy for lawyers working outwith the system to understand. It is a mixed system. It is based on acts that recognise the agricultural tenancy of land. However, that is no longer what the system is. The current legislation recognises a relationship between landlord and tenant—that is all that the crofting acts consider. Any crofters who have purchased their land under the provisions of 30 years ago receive very little guidance as to what they should be doing.
You covered quite a lot of ground. I will let the other two speakers respond before letting Rob Gibson come back in.
I agree with everything that Derek Flyn said about a register of crofts. It seems remarkable that the Crofters Commission has signally failed to maintain a register. I would have thought that in order to regulate a system, one must first know the definitions of that system and then maintain an updated record of the people who came in and out of it.
I will be brief. The issue of the register is very pertinent. Both the other witnesses have made the point that it is rather extraordinary that the commission does not have an effective register. It is particularly extraordinary because that was one of the obligations in law that were imposed on the commission by the Crofters (Scotland) Act 1955, which founded it. In the 1980s, when I worked for the Scottish Crofters Union, that was one of the issues that we raised. Given the huge advantages that are afforded by modern technology in this respect and the relatively small numbers that are being dealt with, it remains extraordinary that, for more than half a century, an organisation employing so many people and with such a large budget has not been able to fulfil one of the very basic remits that were given to it at the outset. I hope that one thing will come out of the reforms that are currently proposed. In its new form, the Crofters Commission must be required by the Executive to fulfil certain obligations. Shane Rankin said that one of the differences in the new set-up would be that the commission, like other quangos, would become more directly responsible to the Executive. That is fundamental.
All the people who have made submissions have made us well aware of the vision issue.
I agree with Jim Hunter that other aspects of the bill are good and largely non-controversial but, on the regulation of crofting, the question is whether we need new legislation or the enforcement of existing legislation. I raise that fundamental question in my written submission. I am sorry that John Farquhar Munro cannot be here, because he has asked that question repeatedly. I quoted a good example of that. The law was not changed after 1976 to say that the Crofters Commission could not treat owner-occupiers as landlords who were their own tenants. The Crofters Commission decided not to do that—it opted out. Decade after decade, it has opted out of regulation, to the dismay of people who have tried to keep crofting communities going. We must consider whether, if the existing powers of the Crofters Commission over assignations were implemented, we would need the fancy new designations and the highly obscure and arcane definition of a "proper occupier". That will keep lawyers busy, but what will it add to the practical application of the law? That is my starting point.
If that is the case and if the panel thinks that the Crofters Commission can be given a status and respect that it appears to have lost as a result of the actions that we have discussed, will any aspect of the bill allow the Crofters Commission to regain respect in the crofting communities?
With crofting or with anything else, either a regulator regulates or there is no point in it existing and we should abandon the pretence of regulation. That is the fundamental issue that must be decided on. At present, the regulator does not regulate and the free market operates destructively in many places. The status quo is not an option. Either the regulator must regulate, or what has been legislated for will continue to drift.
Indeed—at ministerial level.
It has always seemed odd to me that the commission is simultaneously a development agency, which currently seeks to enhance its developmental functions, and a quasi-judicial regulatory body. That is one of the fundamental concerns that the bill does not get to grips with. There is an incompatibility between the two roles and I find it extremely difficult to understand how they can be combined.
The criticisms of the Crofters Commission are caused by the diversity of the land that it deals with. The crofts in east Inverness-shire and Easter Ross are very different from the townships in the western Highlands and Islands. If we look at the statistics, we see that the Crofters Commission deals with land that perhaps has no place in the crofting system that we are considering. That land is held as single agricultural units in places such as the Black Isle, where there is close contact with Inverness and Dingwall. That is completely different from townships in Lewis, where there might be a strong community view.
You will not have had the benefit that we have had of seeing the Crofters Commission's explanatory paper in the name of the Scottish Executive. It states in paragraph 8:
I return to the question whether we need new legislation or the enforcement of existing legislation. Elaine Smith's latter line of questioning and the responses to it were interesting. I do not want to misquote Shane Rankin—that is where the old shorthand habit comes in handy. He responded that the right of veto was supposed to be used only to
If it is the will of the committee or the Parliament to regulate the system, it can be regulated. Nothing is impossible. I understand that in the west Highlands and the Hebrides, the biggest single concern that has been expressed in the wider debate about the bill is the strong sense of many people that something akin to a free market now operates in crofting and that, if that is left to its own devices, it will eventually be hugely destructive to the system. That is clearly the case. The wider rationale for having a crofting system is that the public, in their wisdom, wish to obtain social goods from it. If forces that are identical to those that operate outside the crofting system are simply allowed to operate in it, there is not much point in having a crofting system.
Jim Hunter talked about redefining the term "crofter" and Shane Rankin described the bill as tempering regulation. How could we arrive at a situation in which crofts change hands for £6,000 as opposed to £86,000? How would redefinition of the term "crofter" benefit my constituents and, more important, the generations yet unborn?
The suggestion that I have made is pretty radical, but it is an attempt to grapple with the fundamentals of the situation. As I said in my submission, most people in Scotland—if they think about crofting at all—tend to imagine that a crofter is one individual, plus his or her family, living on one croft and that the system has been created to protect their position. Certainly, that is what drove the system in the 1880s, when it was put in place by Government in the first instance, in response to crofting demand. However, in the course of the 20th century, all sorts of anomalies have appeared, the most glaring of which is the absentee tenant.
I agree with a great deal of what Jim Hunter has said, but we are confronted with a bill that will not neutralise the situation until something like what has been described can be done—it will make the situation immeasurably worse, because the more that one licenses money to control the system, the more difficult it becomes to get back to what Jim Hunter suggests. If the Crofters Commission cannot regulate a system in which crofts have changed hands for a few thousand pounds on the basis of permanent improvements, how on earth will a system be regulated in which crofts are advertised in the Exchange & Mart and The Sunday Times and in which bare crofts with no pretence of permanent improvements are sold for £100,000? How do we impose on that system the things that Jim Hunter has suggested? Such trade would have to be stopped rather than licensed before the system could be modernised.
I have difficulty with the issue of valuation. There is conflict between people's general rights under the law and trying to regulate an unusual system of tenure. The bill allows for the market value of a croft to be identified for succession purposes. Since I have been dealing with crofts and their purchase, they have, whether purchased or tenanted, been given a market value in Scots law. Under the law of succession, many people might be entitled to inherit the estate of a deceased person. If a crofter dies, their tenancy is valued at the market value. The Crofters Commission may resist seeing a market value, but the Inland Revenue has not ceased to see that value and will maximise the value of the tenancy for inheritance tax purposes. I am a lawyer who deals with Scots law and such things are not unusual to me. People are entitled to maximise the value of their assets.
I have two questions, the first of which is for Derek Flyn. I hope that Brian Wilson and Jim Hunter can answer the second.
Some crofters and their forebears have had security of tenure for 130 years now. The landlord who has, by chance, purchased the land that they are sitting on receives a very small rent from them. As far as removing the landlord from the scheme of things is concerned—I think that that is laudable in some cases and sometimes necessary—the 1976 act provided a method whereby the rent was simply multiplied and the landlord was not financially hit by losing the annual rent.
I am not sure that you have answered my question yet. I still do not know what is actually being bought and sold. Is it the total right for people on the croft to buy and sell as they wish in an open market, or is it about buying the landlordship? What are people buying?
There are two participants. If they are buying anything they are buying the landlord's interest. Some crofters have chosen to move the landlord's interest. Instead of taking it on board themselves, they might pass it to members of their family by way of a family trust, so that the tenancy is not affected but the landlord is removed. In some cases the landlord is not a pleasant fellow, so losing the right of purchase would be a great loss to certain tenants.
I ask Brian Wilson and Jim Hunter to comment on the matter, which seems to me to be one of the fundamental flaws in the bill.
An interesting divergence is opening up.
Would Jim Hunter like to comment?
I will not add to Brian Wilson's comments except to say that it is striking that as far as I can see there is little integration between the proposals in the bill and the situation that has been created by community ownership. That is very strange. There seems to me to be a major distinction—in logic, if not in law—between the situation that will be created by the bill and the current situation. After all, in principle, crofting law and crofting status exist in order to defend the crofting tenant from the landlord, as was said earlier. Only if paternalism were taken to its extreme and ultimate lengths could the argument be made that Parliament must legislate to protect crofters not from landlords but from themselves. I would not make that argument, although some people might.
Okay. Next on my list is Maureen Macmillan.
The discussion of these ideas is absolutely fascinating. I seek clarification on the balance that needs to be struck between flexibility and regulation. The excuse that the Crofters Commission gave for not regulating was the need to consider local circumstances. If I recollect correctly what he said, Derek Flyn spoke about the difference between crofting on the Western Isles and the Black Isle, although he also said that the same regulations should apply to both places.
A distinction needs to be made; although all this needs to be explored, it has not been done so far. Concerns about the growing failings of the present system, including the constraints that Derek Flyn and others mentioned, have been articulated strongly. Despite the concerns, nobody has systematically investigated how a mechanism of regulation could be created that would produce, or would help to produce, a much more desirable outcome than the situation that exists at present, which is why I suggested that somebody somewhere should be told to go off and do that. Whether the Crofters Commission is the ideal candidate to do so is a moot point, however. As we have heard, it holds very strong views on the subject. That said, there is a need to explore the issues—the committee may seek to do that to an extent over the next few weeks.
That would be a free market.
That would be a genuine free market. At the moment, we are being presented with the idea that, somehow, there will be a free market inside a legislative fence that was created in the past to fence out another free market. That seems to be an absurd proposition.
Before I come on to the question that I want to ask, I am trying to get my head around the question why someone who can pay £100,000 for a croft cannot be a crofter even if they live on the croft, behave like a crofter and do all the things that crofters are supposed to do. The £100,000 might have benefited somebody who had lived and worked on that croft all their life. Will you elaborate on that and enlighten us?
That is a good point. Of course, such a person can be a crofter. Under the present system, if somebody pays £100,000 for a crofting tenancy through negotiation with the outgoing tenant, and if they meet the rigorous regulatory concerns, it would be difficult to object to that. However, the reality is that the higher the price, the less likely it is that the successful assignee will come from a crofting background or have similar status, and the less likely they are to want their little bit of land on a lovely promontory overlooking the Minch for anything other than a house site.
As has been said, the fact that an individual is in a position to pay £100,000 for a croft does not invalidate that person as a potentially beneficial member of the crofting community. However, we all know that one of the downsides of what is otherwise the upside of Highland economic success in recent times has been the huge inflation in property values. In the wider housing market, there is no mechanism to do anything about that, although there are all sorts of possibilities for creating social housing and the like. However, in crofting areas and communities, it is felt, rightly or wrongly, that the system's raison d'être and rationale is to help to sustain people and create positions within the community for individuals who would not have a hope in the free market.
I will follow that up. Again, I am not going to ask the question that I had wanted to ask.
By that time, the incomer will have paid his £100,000 for the tenancy. What would the fee be 15 times of?
If the landlord's interest can be bought out for 15 times the annual rent, why should that not be the limit at which the outgoing person can sell their tenancy or right of assignation or whatever?
That is an interesting idea, but it would go very far in a direction other than that which is proposed in the bill.
It is also important to keep in mind something that Derek Flyn mentioned in a slightly different context. For better or worse, or for the right or wrong reasons, most croft houses are now separated from the crofting system, and they stand on land that their occupier owns. In law they are, in effect, like any other house. It is worth bearing that in mind when the plea is made that the house might be the tenant's pension fund. That is a very genuine point and I understand why an outgoing person would feel that he or she has a right to realise their asset to the maximum.
Can I now come to the question that I wanted to ask?
It must be brief because other members have questions.
I would like Professor Hunter to comment on the proposal to create new crofting tenures outwith the crofting counties. How will that play out?
It will be hugely beneficial. Understandably, we have tended to focus on the negatives—the problems and difficulties. However, the creation of new crofting tenures is, in my view, a huge departure for the better. It is highly improbable that a private landlord of the conventional type will suddenly create a plethora of crofts on his or her estate in order to get into the sort of situation that Derek Flyn described in which he or she would lose all control over the land.
Arran provides a good example of an issue with which I have been familiar for a long time. It is great to create crofts. All I say is that there has been an attempt to spin the situation to say that somehow a great dynamic market would be created and that it does not matter that existing stocks of crofting tenancies are being sold off to the highest bidder because all the new crofts will be coming in. That is just not true. If it happened to a modest degree, that would be great, but if we created 100 crofts on Arran tomorrow and put them into the hands of local tenants, I can assure you that the property market in Arran would run wild and that the new crofts would be there for only about a fortnight because of massive demand. It would be wonderful to create 100 tenancies in Arran that could not be marketed in that way and that would therefore allow local people to stay on their own island, which many of them cannot do just now.
Can I flag up something else that I see happening?
I ask you to be brief, because other folk wish to speak.
Individuals who have small landholdings under the Small Landholders (Scotland) Act 1911 could apply to come under crofting tenure. That would involve not communities, but isolated landholdings. How would that pan out?
I ask for brief answers, because two or three members want to ask questions and we have still to hear from the third panel.
What Nora Radcliffe described was the genesis of the demand in Arran. The demand was not for a general extension of crofting tenure to the whole of Arran; it came from people—you have them in the north-east, too—who have always talked of themselves as renting under the crofting acts. One of the first things that should happen under the bill is that people who think that they rent under the crofting acts should have the benefits of crofting tenure.
Brian Wilson described an exciting vision of people working the fertile straths and not just the coastlines to which people were originally moved out. He said that crofting was not a collection of communities but a system of tenure. Is crofting the best system of tenure and ownership to deliver that vision of rural regeneration? I went to Norway last year, which has a fantastic repopulated, sustainable and economically active rural environment. Could introducing crofting into lowland areas outside the traditional crofting counties involve problems? The vision is fantastic, but is crofting the system of tenure that we need in highland Perthshire and other areas?
I will make a small correction: I said that crofting involves not a collection of individual holdings but a communal system. Perhaps that was a slip of the tongue on your part.
Is it the right system outside the crofting counties?
I do not know. It is more important to defend what we have than to go off on tangents about crofting communities in the Borders—Jim Hunter probably has a slightly different view. We should not be diverted from the main purpose of retaining crofting where it has been successful in the past. By all means introduce a system; it is certainly possible to do that through other land reform instruments.
That is the issue—we must work out how the bill joins up with the Land Reform (Scotland) Act 2003. We are struggling with that. Does Jim Hunter have a view?
I do not advocate replicating the system, for fairly obvious reasons in the light of this morning's discussion. About the last thing in creation that I would wish on the Borders, unless I wished the area harm, is a replication of what the crofting areas of the Highlands have, with its plethora of legalities and all the rest of it. I certainly do not advocate extending holus bolus the current system into other areas. I am trying to convey the idea that if all the legalities and administration are left to one side as far as possible, the socioeconomic benefits of crofting are what we want to capture in current circumstances. That would have been silly in the past, but is applicable today, given that public policy is to secure the population and economic diversity in rural areas. Crofting or a system like it has much to offer in that respect.
Would the Land Reform (Scotland) Act 2003 need to be revised to bring that about or should we try to do that in the bill?
I might be wrong about this, but I have been told by several people lately that it is difficult for community groups outwith the Highlands and Islands to acquire land under the 2003 act. If that is the case, something needs to be looked at somewhere. One of the huge benefits of the 2003 act is that, although it rightly makes a distinction in respect of crofting communities, the wider provisions apply to the whole of Scotland. Under the act, any community anywhere in Scotland is entitled to seek to acquire land. If communities outwith the Highlands and Islands are finding it more difficult to do that, something needs to be done. The intention behind the 2003 act was that a community in Berwickshire or Aberdeenshire should have the same right to acquire land as a non-crofting community in Argyll or Inverness-shire.
Eleanor, do you want to come in now or will you kick off with the next panel?
I would like to ask my question now, because it refers to something that Derek Flyn says in his submission.
Please keep it brief.
Derek Flyn's submission states:
That is a difficult one. In the main, communities identify themselves. Some communities are strong and some are not. One of the difficulties is that, historically, land has been in estate ownership, but the crofters who live on an estate are often not in the same community. Two townships on the same estate might not want to buy the estate and become community landlords because of historical difficulties between the townships. It is best for the initial community landlord to be a township rather than a huge estate. I encourage that when I talk to crofting communities. I suggest that they first decide whether they would like to be their own landlord, then consider whether they would want the next township to be their landlord. Only in that way can they identify what their real community is.
The most peripheral parts of the country, which some people would consider to be the crofting heartlands, have continued to suffer economic decline. Typically, half a dozen bureaucracies will be responsible for such areas—although none of them will be located there—and each will administer aspects of decline separately. We must try to bring together that work at a more local level. That was the thinking behind iomairt aig an oir, with which some members might be familiar, which was an attempt to focus on such areas and to bring together crofting and housing interests—which, as the convener said, are closely related—with economic development considerations.
Brian Wilson mentioned the remoteness of the administering regulatory agencies. I hope that the committee will think about the connection between the bill and the Executive's public sector job relocation strategy. About 50 or 60 very good jobs in the Crofters Commission that concern the administration of crofting should, in my view, be located in a crofting area—preferably one that is experiencing greater economic difficulty. Relocating those jobs from Inverness to a crofting area in a part of the Western Isles, such as Uist, would be a significant boost.
I thank the members of our second panel. Given that we asked the first panel an extensive series of questions, we needed to match that with an extensive series of questions for the second panel. Members of the third panel must be quaking in their boots. I thank the witnesses for engaging with us and for being prepared to help us to explore the bill's complexities and what we might do. Committee members are all aware that consideration of the bill is a big responsibility, which we will attempt to discharge over the next few weeks.
Meeting suspended.
On resuming—
I welcome panel 3 to the meeting. We have Hughie Donaldson from the Scottish Crofting Foundation, Andy Robertson, the chief executive of NFU Scotland, and Ian Cairns, the area consultant for Lewis and Harris at the Scottish Agricultural College. Thank you for sitting patiently through the previous sessions. I think that you got a sense of what will happen next. Thank you all for giving us your written submissions in advance.
Thank you, convener. I want to ask Hughie Donaldson a question that I put to the first panel. You say in your submission:
Certainly. Have you seen our original submission to the Executive?
I do not have it at the moment, but I would like you to tell us about it.
I can you leave you a copy of the submission—that is no problem.
Is your overall interpretation that the bill will open up crofting more to market forces?
Yes.
You also feel that the bill is incomplete, because the proper occupier provisions have been produced only now. You think that they should have been included at the beginning.
Those provisions should be part of the bill. Mr Rankin started by taking us back to January 1999, when the land reform legislation process started. He moved on to July 2002, when the crofting reform white paper was issued. From 2002 to March last year, nothing happened except supposed consultation of one form or another. From March to now—the past 12 months—we have had a helter-skelter ride of not only the bill, but the rural development regulation, the new rural development strategy and the plan to focus on the direction that crofting will take. Throughout all that, there has been no vision for what crofting will be after the bill. We have consistently asked for the social and economic benefits that crofting has delivered to be measured—to be quantified and qualified from 1886 to the present day. Nobody appears to be listening to that, certainly in the commission.
How do you feel about the existing power of veto, which has been discussed? I know that you have listened to all the evidence. Could the veto have been used better, or should it be used to deal only with the worst excesses, as has been said?
That is a bit like a bookmaker picking his own horse. What is the point in backing only cases that can be won? A policeman does not chase only guys who are on foot; he must also catch the guys who are on bicycles and in high-speed cars. We should not use something as and when we feel it is worth it; we should use it to benefit the system, rather than the individual.
What are panel members' opinions on the provisions to create new crofts? Where might they be used? I am particularly interested in how they will work outwith the crofting counties. How might an area be defined? What is the difference between being a tenant under the existing smallholding regulations and falling under crofting tenure?
We commented that one or two issues need to be sorted out before we proceed with those provisions. Shane Rankin said that extending crofting has two obvious advantages, one of which is access to crofting grant schemes, but what happens to the funding will need to be sorted out. If crofting grant schemes are extended to a wider range of applicants but the funding is not increased, that will cause a problem.
If both parties want to create new crofts, there would be some advantages. An example that has been mentioned is an area in Strathdon where a lot of small producers wanted to get some of the rights that are afforded to crofters and the landlord was happy with that. In that example, there was a good case. However, I foresee a few pitfalls. We have some experience of creating new crofts, so it is not a new phenomenon. The Orbost estate in Skye was purchased by Highlands and Islands Enterprise with the idea of taking on what was previously a farm, dividing it up and making it available to crofters. The lesson to be learned from that is that there are quite a few difficulties in trying to create a community. How does one go about doing that? That brings us back to some of the fundamental issues that the committee has discussed today. What is in the community's best interest? Should there be a points system? How does one match the person who is going to be part of the community to the delivery of objectives on behalf of the wider community? It is a complex area. We have to learn from previous examples. New crofts might not be a panacea that can be rolled out in all cases.
On new crofts, we have been working hard with a disparate group, with a lot of assistance from the Forestry Commission Scotland. We made contact with various community groups in Dumfries and Galloway. Access to the Forestry Commission estate under the national forest land scheme was facilitated by a change in legislation in 2004, I think. That was a positive step and it is moving the debate forward—not necessarily in terms of building new crofts, but in the growing realisation that there is the will to do so within the Forestry Commission. Obviously, local authorities and planning regulators have to be involved, but I am hopeful that we can start to deliver on some of that work fairly soon. It is happening slowly but there is much more to do. We hope that the Scottish Crofting Foundation will be an integral part of delivering that, given its experience from the past 120 years.
In response to Elaine Smith's questions, Hughie Donaldson reinforced the devastating evidence that we heard from the second panel. The evidence was on an issue that is mentioned in your submission, Mr Donaldson—the incompleteness of the proper occupier provisions in the bill. In terms of process, how do you think they have been handled? I think you said that you were presented with the detail on what proper occupier means only yesterday.
It came in an e-mail, so my ink cartridge is now a bit low.
How has the process been handled? Your organisation represents the vast majority of crofters.
As I understand it, there is a common misconception of what the Crofters Commission is. It was set up by the legislation to represent crofters and to protect them and their tenancies. However, that does not necessarily fit with what crofting is and what crofting communities want to happen. When the bill manager was asked for his input on the bill, he gave two or three sentences and the issue was passed on to the chief executive of the Crofters Commission. It is the Crofters Commission's bill, not the Executive's bill.
That is a fair comment.
I made some notes on the chief executive's comments on the consultation process. At some expense, I attended three of the public consultation meetings. The totality of what happened in the meetings should have been published as the output of the consultation. We feel that the summary of the responses was partial—it was fairly selective and self-seeking, in that it sought to build on what the bill was trying to do rather than represent what came out in the public meetings.
As Mr Donaldson has rightly highlighted, the bill manager was incapable of answering a straightforward question. I have nothing else to ask.
To allow us to get an idea of what crofting can do in the 21st century, can the bill's inadequacies be sorted out so that the Executive can help us to create a vision for crofting? It is Hughie Donaldson's evidence that the Executive did not listen to the views of the people who attended the public meetings. It is clear that it certainly did not take account of the submissions that were made by people around the country. I have a series of unanswered questions to ministers about what they were going to do with the opinions that they did not want to address. I am interested to find out whether any members of the panel have suggestions about how the bill could be improved.
Perhaps Hughie Donaldson would like to start, because he has identified a few issues that he would like to be dealt with differently.
The SCF, which is a membership-led organisation, has struggled to represent every shade of crofter opinion held by our members, but one change that could be made would be to tie the consultation process for planning applications to statutory consultation. The Crofters Commission must be part of that process. Those of us who have worked in local development for some years know that without such a change, the idea that it is possible to deliver a local policy group is questionable.
I want to follow up that point with the other panel members. Professor Hunter said earlier that the viability of crofting communities is dependent on the health of the wider rural economy. Hughie Donaldson talked about the need for housing and the means to achieve sufficient housing. He said that the basis for house building is control of how croft land is used. Do those views tie in with those of the Scottish Agricultural College?
My experience is on the Isle of Lewis and the Isle of Harris, which have opportunities and problems that are probably unique, and my view is probably the opposite of an Inverness-based view. The strength of the local economy on Lewis and Harris is a critical factor. As members will know, crofting is a part-time activity and the crofter's alternative employment is critical. Crofting on the scale at which it operates on Lewis and Harris is more or less a loss-making activity. As was indicated earlier, that is particularly the case if there is only one crofter on a croft that is perhaps only 2 to 4 acres in size, with a share in common grazing. Losses are even more dramatic down at that end of the scale. Such crofters cannot get a viable economy of scale out of their business.
Is local, elected control of decisions important? Someone must make the groups of agencies work at the local level. The minister has said something about action 35, which is fine, but how do we turn that into a strategy that can be applied at the local level?
That is the important point. The communities must lead on the input. Action 35 worked because all the agencies, whether development agencies or producer groups, were represented. Obviously, the Scottish Crofting Foundation represented its membership, and that general representation informed the whole process. The people on Lewis and Harris with whom I have talked want some democratic involvement to be included in the make-up of the new body.
I would start from the principle that new legislation must add something beneficial. The point has been well made that we must consider whether we need new regulation or whether we should make better use of existing regulation. I will not repeat all that has been said, but we get a lot of feedback on this from our membership in crofting areas and I would add that crofters believe firmly in local community involvement in decision making. Many of our local membership believe that they, rather than somebody sitting some distance away, are best placed to make decisions. It is important that the first port of call for decision making is as local as possible. We should fall back on regulation from afar only if something cannot be resolved at a local level.
I want to pick up on what you said about agriculture being central to crofting. On the problem of absenteeism and crofts not being worked, we have received evidence to the effect that much absenteeism has been caused by people being unable to afford to croft as a result of not enough support for crofting. That takes us back to less favoured area payments and other issues. Is the support that is available an integral problem for crofting? The issue cannot be covered by the bill, but I have been taken by the thought that we need to do something about agricultural support for crofters as well as regulation.
There are several problems that people in agriculture—crofters, farmers and others—face, including prices, questions about current and future support systems and the burden of regulation. People say to us that those are the three problems that cause difficulties.
Is a contributing factor to absenteeism the fact that people think that trying to do something agricultural is not worth while?
If agriculture is the core business but is not profitable and people are losing money hand over fist on the agricultural side, why would they hang around to do the other bits of work? There is something in that.
It has been said that agriculture would still form the main part of crofting. I recall that some land on the croft must be kept for agriculture.
You should correct me if I am wrong, but I think that it has been suggested that agriculture should no longer be the principal use. I think that I read that somewhere.
We can check that. From the evidence that we have heard, a significant proportion of a croft must be retained in such a state that it can be used for agriculture, but other parts of the land could be put to different types of use, and there could be diversification. Perhaps we can return to that issue when we meet crofters and other organisations.
I stress that defining a suitable tenant and a proper crofter is easy in the context of agriculture. However, as Shane Rankin demonstrated, those terms are much less easy to define if one is talking about wider matters.
I take it that when you talk about agriculture, you use the word in its widest sense, so it might include growing vegetables in a polytunnel, for example.
Yes.
My next question is for Hughie Donaldson. Criticisms of the operation of the Crofters Commission have come from various quarters. However, you say in your submission that you dislike the proposed changes to the commission. How will the proposed changes make the situation worse for crofters?
The idea that we have in front of us a lucid and clear stairway to heaven is a fallacy. It is almost impossible to read the bill, let alone make sense of it. The short answer is that it is difficult to say what the effect will be. The glaring point that has emerged is about the appointment of the great and the good to decide what crofting is and will be; that must be decided by crofters locally.
In essence, you say that the Crofters Commission cannot do a proper job in the 21st century unless its board is elected.
Yes.
That is clear enough.
I return to the idea of one crofter, one croft. Many crofts are too small to sustain even a part-time income. The bill provides for the division of crofts. Should it provide for amalgamating crofts to form larger units, if that were in the community's interests and would create more viable units than a variety of separate crofts?
The viability of crofting for agricultural production is minimal. A fact that is often overlooked is that, in pure basic numbers, crofts hold about 500,000 sheep and 70,000 cattle. If people want to ignore that as part of our national food production, that is fine—crofting can be wiped out as an agricultural system. However, it is the base for other industries in our national figures on food production. Crofting is part of that and of the breeding programme for replacement animals in the system. If somebody is to make a living purely from crofting, they must have decent or semi-decent land that is of a sufficient size to be viable. Why would people want to dismantle a viable business?
The issue comes back to local need and the variation throughout the crofting counties. Amalgamating two or three crofts on Lewis would give someone 8 or 10 acres to manage on their own. I prefer to think about crofting in the wider context and as not just about keeping sheep or cattle. The crofting landscape has been formed by crofting agriculture. However, if we consider crofting as just a number of small farms, they seem even less viable than the big farms, which are not viable just now. The income streams from crofting and livestock enterprises are heavily dependent on subsidies. As has been said, support for each individual business needs to be targeted and effective.
I was trying to get at the idea of a one croft, one crofter rule. De facto, in the crofting counties, people run four or five or even 10 or 11 crofts. Should we seek to regulate that?
I do not think that we can do that, because each area is different. On my croft, there are two house sites that were decrofted before we bought the croft—we have the third croft house and young families have the two other croft houses. They do not manage land but contribute to the local community on a different level—they live in the area, have kids in school, buy goods from local shops and generate local income. It is difficult to say that we should have a rule about one croft with one house on it and one family living there. We need scope for variation, which takes us back to local priority setting.
As Nora Radcliffe described, amalgamation already happens informally, but I am not sure that there is a need to formalise the matter. Individually, small crofts may not be viable, but as Hughie Donaldson's figures demonstrate, what crofters produce collectively is important. We should not underestimate the importance of the breeding hierarchy and breeding stock that come out of crofting areas. I agree with Ian Cairns that we cannot really have a one-size-fits-all solution. In some areas, there is a heavy demand for crofts, so it would be wrong if one person collected a series of crofts and nobody else could get one. However, where there is not a heavy demand for crofts, to leave crofts vacant simply because of a one croft, one person rule would be daft, because we would lose production that could otherwise happen.
I have two brief questions. I do not know what answers they will get me, but I will ask them. The first question is for Hughie Donaldson. You mention interposed leases in your submission and you said earlier that you do not want to wait five years. Could the matter be dealt with in the bill?
We were assured that it would be.
What would be a suitable amendment to the bill?
We have a letter from the deputy minister that says that, in relation to the one test case that we could use—the Pairc estate buy-out—ministers would test the validity of the leases that were given to Scottish and Southern Energy via another instrument, which was set up to frustrate the land reform legislation. The letter states that Scottish ministers are minded to test the validity of those leases in the Scottish Land Court. However, it appears from paragraph 38 of the policy memorandum that that will not happen.
The clerk has drawn my attention to part 6 of the bill, on the crofting community's right to buy and the real rights of tenants. The issue is about getting that tested.
Yes.
The matter is incredibly technical. For my benefit, will you explain whether that can be tested before we get to stage 2 of the bill? What are the timing implications? The matter would have to be taken to the Scottish Land Court by the Executive.
Yes.
It could not be taken by the Scottish Crofting Foundation.
It would have to be taken by a body of interest that has a direct relationship with the lease. That would be either the grazings committee or the body that was formed to buy out the estate. As of the end of last month the Scottish land fund no longer exists, so there is no way that a small community body could be funded to test the matter in court. We were assured that ministers would do that, but it now appears that that will not happen.
Thank you. I needed a bit of background to make sense of your previous comments.
The delays to community buy-outs in crofting communities have been caused in part by problems with identifying what they are trying to buy. Thankfully, the Galson estate buy-out has moved forward to the next phase. We hope that it will go ahead and we wish those involved luck with the enterprise. However, those involved in the Pairc estate buy-out on Lewis are not even attempting to buy the inby ground because they cannot identify it and they do not know who owns it. There are perhaps 200 or 300 holdings. It is almost impossible to get one's head around that and to dedicate time and resources to do the work, yet that was the primary remit of the Crofters Commission from 1956. Its remit was to set up the register and record the information but, in 2006, that has still not been done. Under the bill, it looks as if responsibility for that will be given to individuals in particular areas.
You said that the Scottish Crofting Foundation does not think that the bill is complete because of the issue with the "proper occupier" provisions. It is up to you if you want to put in a supplementary submission when you have had time to read the Executive's statement. When we go to Stornoway, local members of the Scottish Crofting Foundation will come to give us evidence, but there is nothing to prevent you from putting your concerns in writing before we draft our stage 1 report.
Technically, the consultation closes tomorrow.
Yes, but I am saying that I am happy to take a later submission, given that the matter did not arise when we asked you to comment previously. It would be helpful to the committee if you were to come back to us on that point.
The first point in paragraph 7 of the Executive's explanatory paper is about the proper occupier—
You said that you saw that paper for the first time only yesterday. It would be helpful to us if you were to give us your comments—do not leave it until the summer, but talk to the clerks after the meeting about how to include those comments in the evidence that we will consider.
Section 35 of the bill deals with interposed leases and proposes to amend the Land Reform (Scotland) Act 2003. Am I correct?
Yes.
That being so, there seems to be some misinterpretation of paragraph 38 of the policy memorandum to the bill. It talks about inserting new provisions into the 2003 act as if that would take place separately from the bill, but we are aware that amendments to address interposed leases will be made through the bill.
Are you sure?
I am looking at the policy memorandum now.
I have just been speaking quietly with our clerks, who have pointed me to the right place. The bill is technical, and we do not have to bottom out all the detail today. I suggest that you look at that section again and talk to the clerks. There is an obvious issue about testing that matter in law, but we are looking at the bill as introduced. People should look at the evidence, and we shall certainly read the Official Report of the meeting to remind ourselves of what witnesses said. If we want to come back to people and ask further questions, we can do that. If we find the bill incredibly technical, people out there must find following all the evidence that we will hear incredibly technical.
I ask the committee another favour. Can we have an accurate list of the number of times in each of the past 10 years that the Crofters Commission has used its regulatory powers to force a decision? That would give us information about where regulation works and where it does not. If the committee could help to facilitate that before we reach stage 2, it would help us to draft our amendments.
We can explore that.