Decrofting of Owner-occupied Croft Land
Good afternoon. The first item of business is a statement by Paul Wheelhouse on decrofting by owner-occupier crofters. The minister will take questions at the end of his statement, so there should therefore be no interventions or interruptions.
Presiding Officer, crofting is very much valued by this Parliament, by this Scottish Government, and by me, as the minister who has responsibility for crofting.
Clearly there are, in respect of crofting, many issues of importance that demand Parliament’s attention, in order to ensure a sustainable future for crofting and the future prosperity of all those who live in Scotland’s crofting counties. I look forward to continued engagement with members and stakeholders on those issues and I am confident that together we can deliver a brighter future for Scotland’s crofters.
However, today I am grateful for this opportunity to inform Parliament of the Scottish Government’s intentions to address a particular issue that has come to light in relation to crofting legislation—specifically, the Crofting Reform (Scotland) Act 2010. The issue concerns owner-occupier crofters’ ability to apply to the Crofting Commission to decroft their croft land.
Decrofting, which is provided for in sections 23, 24 and 25 of the 2010 act, means removing the land in question from crofting tenure and the provisions of the 2010 act. It can be applied for in relation to all or part of a croft and might be used, for instance, to allow for a house to be built on decrofted land, which can help to facilitate the handing down of a croft from one generation of a crofting family to the next, or it may enable the building of a dwelling for a new entrant to crofting on a croft that does not currently have such provision.
The 2010 act was the first crofting act to make specific reference to owner-occupier crofters, even though crofters had, for many years, enjoyed the right to buy their crofts. The 2010 act rectified that situation by explicitly distinguishing between tenant crofters and owner-occupier crofters.
Unfortunately, a flaw has come to light in the way in which that distinction applies in the case of decrofting of land. It was the Scottish Government’s intention that tenant and owner-occupier crofters should be treated equally, and we believe that that was also the Scottish Parliament’s intention during the passage of the 2010 act. However, as some members will be aware, the Crofting Commission has received legal advice that sets out that, in fact, the 2010 act inadvertently limits the circumstances in which owner-occupier crofters can apply to decroft land. That being the case, the Crofting Commission has decided to suspend the processing of such applications from owner-occupier crofters—a decision which was, of course, not taken lightly.
Since the problem came to light, the Scottish Government, along with the Crofting Commission, has taken a number of steps. First, in the matter of due diligence, it was necessary to confirm our belief that the will of the Scottish Parliament was indeed that owner-occupier crofters, as well as tenant crofters, should be able to apply to decroft. That required us to check carefully the documentation relating to preparation of the 2010 act.
Having satisfied ourselves on that point, the Scottish Government naturally considered whether it would be possible to overcome the flaw in the 2010 act without recourse to legislation—I know that others have done their own analysis on that point. It had been suggested to us that ministers could simply direct the Crofting Commission to continue to process and sign off on applications. Unfortunately, the advice to ministers is clear that no such solution exists under the terms of the 2010 act. That means that in order to correct the flaw in question, an amendment to the crofting legislation is required.
The Scottish Government has also had discussions with stakeholder organisations, including the Scottish Crofting Federation and the National Farmers Union of Scotland, as well as with the commission itself, of course. In the light of those discussions and our analysis, I inform Parliament that the Scottish Government intends to introduce a bill as soon as possible after the Easter recess to address the issue. I intend to propose a timetable for the bill that will enable Parliament to consider carefully the proposed changes, while ensuring that the matter is resolved quickly.
While we are opening the doors for owner-occupier crofters to decroft their land, we should recognise the vital and important role that croft land plays in the life of this country, and of the crofting counties in particular. Crofting brings multiple benefits to our nation; it supports the social and cultural fabric of many communities and it maintains agricultural production in the Highlands and Islands, which it does in a way that delivers the environmental benefits that come from extensive grazed livestock systems. Moreover, although comparatively few crofters are full time, crofting makes a significant contribution to the economies of the crofting counties.
Given the important benefits that crofting provides, members will want to be assured that in supporting the forthcoming bill that I am announcing today they will not be opening the floodgates and allowing massive decrofting to take place. I am happy to give that assurance.
The bill’s precise form will have to be worked out with the parliamentary draftsman, as there is more than one potential way to draft the bill to address what is a rather technical issue. However, our clear intention is that the safeguards that apply to other forms of decrofting, including the need for approval by the Crofting Commission, will also apply in owner-occupier crofter cases.
I know that several members have been contacted by crofters who are, quite understandably, concerned about the issue and I have also mentioned that the commission has suspended processing of such applications that are in the pipeline. That was the only decision that the commission could reasonably take in the circumstances, based on the legal advice that it had received, although I am aware that the effective moratorium has left nearly 60 crofters in the uncertain position of not knowing when or even whether their decrofting application might be approved. There are also more than 170 cases in which the commission had in good faith already granted approval to decroft before this problem came to light. In the Government’s view, it is essential that their situation be addressed as part of the solution. I hope that Parliament will support us in that.
I am very grateful to members who represent crofting counties and to others for the details that they have sent me or my officials on the impact that is being felt by crofters. That information has been a very helpful supplement to the information that I have had from the commission itself, and all of it has contributed to the Government’s conclusion that the legislation should be amended.
Although I cannot discuss the specifics of individuals or families involved, I can give examples of the impacts that owner-occupier crofters face. Some are unable to start building their houses until the land is decrofted; however, because time-limited planning consent has been granted, deadlines for completion might be approaching. Others are unable to decroft to increase the size of the house site in order to extend their houses and provide sufficient garden ground for them.
One young crofter feels unable to proceed with acquiring part of an owner-occupier crofter’s croft because of the uncertainty of being able to decroft part of his new croft to build a house for himself to live in. A young crofting couple who are planning to start a family are unable to decroft the house site so that they can sell it to finance a larger house while retaining the original croft land. There are other examples of owner-occupier crofters being unable to decroft potential wind turbine sites or other parcels of croft land for development in the knowledge that personal financial investment will be required.
I believe that those examples demonstrate the importance of addressing the issue quickly but effectively. Any move to request expedited parliamentary consideration of a bill is not taken lightly, but on the evidence of the difficulty that is faced by crofters, I believe that in this instance such a move is necessary.
I am therefore grateful to Parliament for this opportunity to announce the Scottish Government’s intentions in relation to the decrofting issue in the 2010 act and hope that the announcement gives some comfort to crofters that a solution is on its way. I understand the very real concern that exists in the crofting communities and look forward to receiving Parliament’s support in the coming months to resolve the issue, in the interests of owner-occupier crofters who are being disadvantaged and in the interests of crofting as a whole.
That ends the minister’s statement. Members who wish to ask a question should press their request-to-speak buttons now.
I thank the minister for providing an advance copy of his statement.
This is not the first time in this session that the Government has had to seek to reverse a decision on crofting. It is not good enough. Will the minister apologise to the crofters who have been affected by this recent situation, which is deeply worrying to the 179 crofters who have already decrofted and the 60 who are waiting to do so?
It is perhaps not surprising that there are problems with the 2010 act. At the time, Labour called for greater scrutiny of the bill, but the Government pushed through legislation that has now been shown to be flawed. In his statement, the minister said:
“there is more than one potential way to draft the bill”.
However, although the Government accepts the need for emergency legislation, it does not yet know what form that legislation will take. Will the minister say more about timescales? Will we be in a position to start work on the issue immediately after recess? For those who are left in limbo until new legislation is passed, will it be possible to use the Crofters (Scotland) Act 1993 in the meantime? The longer the situation continues, the greater the financial pressure that is being put on crofters across Scotland.
Finally, in introducing emergency legislation, will the Government allow independent scrutiny of the act to guard against further flaws?
First of all, I should say how disappointed I am in Claire Baker’s attitude. This is a very serious matter and it is pointless to make party-political points on it. I also point out that in the previous parliamentary session, when the legislation was passed, this party had neither an absolute majority in Parliament, nor a majority on the committee that scrutinised the bill. Cross-party support is required.
I hope that, following this statement Claire Baker reflects on her comments and chooses to take a more bipartisan approach to addressing the matter. Clearly, there is a flaw in the legislation. I recognise that it exists—I do not deny it—but we must take action as a Parliament to ensure that it is addressed quickly.
I point out that we are not proposing emergency legislation; rather, we are talking about a short crofting bill that will—with the will of Parliament—be subject to expedited procedures.
I thank the minister for early sight of his statement. I pledge Scottish Conservative support in principle to enable the proposed bill to go through the appropriate stages as quickly as possible in order to remedy the unfortunate situation that has, as the minister suggested, caused uncertainty and worry to a number of crofting constituents.
Will the legislation clarify the legal position on decrofting a croft that has been divided? The Crofting Commission say that people who own part of a croft cannot decroft in that part without the concurrence of the neighbours who own the remainder of what was the original croft. I apologise for that complicated question.
Has consideration been given to an interim measure that will allow applications to be progressed up to the point of issue but without a decrofting direction being issued until the required solution is in place? What is the minister’s response to owner-occupier crofters who face financial loss because of the predicament in which they find themselves?
I will write to Jamie McGrigor to provide clarity on decrofting a croft that has been divided. The issue has been raised by at least one lawyer at the cross-party group on crofting. I undertake to address the matter.
We have communicated with the Crofting Commission to request that it consider processing applications and to come back to us with an opinion on whether it can process applications that are in the pipeline to ensure that—with the will of Parliament—legislation is progressed, we are in a position to respond quickly and we can ensure that people are not unduly delayed.
We will take into consideration financial losses that have occurred, although I am not aware that any financial loss has been presented. However, we will listen to any evidence that members have at their disposal.
I welcome the minister’s proposal for a speedy and safe solution. I suppose that the legislation may come to the Rural Affairs, Climate Change and Environment Committee, which is the committee that I convene. I am sure that committee members will help to scrutinise it thoroughly and quickly.
I seek the minister’s help in relation to people who are caught by the legal hitch that has been uncovered in the 2010 act who are between decrofting and legitimate house-building and diversification plans. Will a cast-iron guarantee be given to allow them to begin planning processes for new uses for the decrofted land on a date ahead of the legislation’s being completed in Parliament to amend the act?
Rob Gibson raises an extremely important point. I welcome his support for the steps that we are taking.
I realise that the situation could, as I have indicated, present problems to people whose planning permission is running out. Because the solution requires legislation, the Government cannot dictate the exact time when the bill will be passed; that is a matter for the will of Parliament, although I hope that we will have support in that. We will need to agree a timetable with the parliamentary authorities and business managers, which we will publicise as soon as is practically possible so that crofters can take that into account and amend their projects accordingly.
There is nothing in theory to stop crofters from starting the planning process before their decrofting application has been processed, should they wish to do so. However, they should not proceed with a change of use until such time as decrofting has been approved. That will require the new legislation to have been passed, which, as I said, will happen only with the will of Parliament. However, there is no obstacle to Mr Gibson’s constituents engaging with the planning process in the meantime.
I thank the minister for sight of his statement. It has been highlighted that more than 170 people whose land has been decrofted will no longer have title to their property and may not be able to secure lending in the interim. Indeed, they may have to wait in order to sell. What is the Scottish Government doing to help them financially and legally?
I am grateful to have the opportunity to clarify something: it is my understanding that title is not affected for people in that position. I hope that that reassures Claudia Beamish.
I understand that there may be an implication for valuation of land because of the assumption that the land would no longer be in crofting use; the owner of the property and the lender will have assumed that it would be decrofted. We are aware that there is a potential issue. The valuation that is placed on the land depends on the attitude of the lender, because it might be treated as having an agricultural value rather than a housing value. The implications for standard security rather than title are among the reasons why we are keen to progress the proposed legislation as quickly as possible.
I thank the minister for his statement and for the speedy resolution of what is a complex and difficult matter. We all live in the real world, in which, unfortunately, things go wrong. We just have to put them right, and that is what the minister and the Government are doing.
Once the legislation has been passed, will the Crofting Commission be in a position to deal quickly with any backlog of decrofting applications and so on that has built up because of the legislative problem? If not, will it be given help to ensure that it can deal with such applications very quickly indeed?
That question relates to the point that I made in response to Jamie McGrigor’s question. We will certainly do whatever we can to support the crofters who are in that position. The Crofting Commission is responsible for processing applications, which is why we have asked it to consider how it can progress existing decrofting applications from owner-occupier crofters, as far as is possible short of approving them, so that when we get to the point at which—with the will of Parliament—legislation is passed, it is in a position to capitalise on that and minimise any future delay.
I thank the minister for his statement.
The Presiding Officer will recall that when Parliament passed the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, the process took 13 days—if I have my numbers correct—from the introduction of the bill to royal assent. I commend that approach to the minister. I appreciate that he must have all-party support; he certainly has the support of the Liberal Democrats.
Will he undertake to work with MSPs—not that many of whom are directly affected by the issue—on a cross-party basis to resolve the situation and fix the problem as quickly as possible, while ensuring that due account is taken of the need for proper scrutiny?
Absolutely. I welcome the support of their parties that Jamie McGrigor and Tavish Scott have indicated for what we propose. To facilitate rapid progress of the bill, we need to work together as a Parliament. I undertake to work as closely as possible with members to ensure that we bring matters to a swift conclusion.
Will the Government publish its legal advice, so that solicitors can properly advise clients? Will it fund the taking of legal advice? Will it look at paying builders and others in the supply chain who have already undertaken work and incurred costs that can no longer be met by crofters because of the flaw in the legislation?
As far as the financial cost to people who are involved in such projects is concerned, I would welcome any evidence that Rhoda Grant can provide so that I can understand the full scale of the issues to which she refers. I would rather not make a statement today on how we could respond to that, but we recognise that it was not the intention to put suppliers in such a position. I will do whatever I can to look sympathetically at their position, but I will need to see the detail on the costs that we might be facing before I give a response.
As far as legal advice is concerned, I am sure that Rhoda Grant knows the constraints that exist in that regard. In progressing the bill, we will try to make it as clear as possible why we think that the legislation is flawed and what we need to do to rectify that. We will try to give as much clarity as possible on the rationale for the action that we propose to take.
Although only a minority of my crofting constituents are owner-occupiers, the crofting community in general will certainly welcome the minister’s intention to close the loophole. He has indicated that the legislative measure that will be taken will be an expedited one. What will he do to seek crofters’ views on the bill’s content as it makes it way through Parliament?
We want to progress the proposed bill as quickly as possible, but as I said in my statement, we want also to provide due opportunity for scrutiny. I am keen that, as well as working with other parties in the Parliament, we work closely with the Scottish Crofting Federation, NFU Scotland and other organisations that have interests. I give Dr Allan an undertaking that if he has any particular suggestions on how to consult crofters in his constituency, I will be happy to consider them.
I am sure that the minister is aware that concerns have been raised by NFU Scotland that some crofters who have entered into renewable energy agreements might not be able to progress their projects due to the decrofting issue. Can the minister assure Parliament that owner-occupier crofters will not be put at a disadvantage when they are progressing renewable energy projects?
Unfortunately, I cannot offer a guarantee about what we will do, as what happens is dependent on the will of Parliament in terms of the legislation’s being passed, and on matters that are outwith my control in terms of the renewable energy projects themselves.
As I said in my statement, the Scottish Government is aware of the practical difficulties that are faced by owner-occupiers, many of whom might well have renewable energy projects in mind. I hope that the course of action that I have set out today will rectify the problem as soon as is reasonably possible for all owner-occupier crofters, including those who are engaged in renewable energy projects. However, as I said, the issue is dependent on the will of Parliament, and the timing will depend on discussions with parliamentary authorities.
How many of the 60 crofters who are currently waiting for their applications to be approved are tied into renewable energy projects that require decrofting? What are the implications for those fledgling enterprises of the—as the minister put it—inadvertent flaw in the act?
I apologise to Jayne Baxter, but I do not have a breakdown of the projects that the 60 applicants are involved with. I undertake to investigate that and will try to get back to her in writing. As the member acknowledged, the flaw is an unintended one. We are taking the necessary steps to put it right, and I hope that we have her support and the support of her party in resolving the situation.
I thank the minister for his statement and for bringing the matter to the chamber as speedily as he has done.
I would like to reassure the minister that, from all the communications that I have received, it seems that most people understand that the situation is an unforeseen consequence of the legislation and do not blame the Government of the time.
Most of the questions that I was going to ask concerned timescale and process. Is the minister in a position to assure people that they can continue to process applications, and that the situation is not frozen at this time? That would reassure people that we are about to simply correct the bill, and not to change it or do anything to impede the progress that is being made.
I assure Jean Urquhart that our intention is to focus purely on sorting out the problem. We will do that as soon as we can reasonably agree in Parliament to do so.
I appreciate the point that Jean Urquhart is making about trying to allow more applications to be made. It would be sensible, at this stage, to say that people who are considering making applications should progress their plans, think about what they want to do and discuss their projects—whether they are renewable energy projects or housing projects—with the appropriate people. However, for all sorts of reasons that are connected to standard securities, mortgages and so on, we will have to rectify the problem before it is possible for them to make an application. At this stage, therefore, it would be sensible for people to wait until there is clarity, following the amendment to the law.