Rural Affairs and Islands Committee [Draft]

Meeting date: Wednesday, November 12, 2025

Official Report 828KB pdf

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Crofting and Scottish Land Court Bill: Stage 1

Good morning, and welcome to the 31st meeting in 2025 of the Rural Affairs and Islands Committee. As usual, I remind everyone to switch electronic devices to silent.

Our first agenda item is an evidence session with the Minister for Agriculture and Connectivity on the Crofting and Scottish Land Court Bill. We have scheduled approximately 70 minutes for the discussion on part 1 of the bill, which relates to crofting reform. I welcome Jim Fairlie, the Minister for Agriculture and Connectivity, and his officials: Michael Nugent, bill team leader and head of crofting policy; Bill Barron, crofting bill team adviser; and James Hamilton, solicitor. I remind our witnesses that they do not need to operate their microphones—I am quite sure that they were aware of that.

I will kick off by asking how the Government will ensure that “environmental use” is clearly defined and actively managed to deliver environmental and community benefits, while preventing neglect and absentee ownership.

Minister, I should have said that, if you have an opening statement, we would be delighted to hear it. That is two weeks in a row that I have forgotten to give you that opportunity.

I do, indeed, have an opening statement.

Good morning, and thank you for inviting me to give evidence on the Crofting and Scottish Land Court Bill. As you know, the bill has two main parts. I will begin with a short opening statement on part 1, on crofting. I will give a further short statement on the merger of the Scottish Land Court and the Lands Tribunal for Scotland later in the meeting.

The crofting provisions in the bill are the culmination of more than three years of stakeholder engagement. To date, there have been 20 crofting bill group meetings, and those will continue through the upcoming stages. The proposals that have been considered came from a variety of sources. They include issues that were previously identified by a crofting bill team between 2016 and 2019, many of which were drawn from the crofting law sump, issues that the Law Society of Scotland singled out for crofting law reform in 2019-20, and issues that were identified and raised by stakeholders over the three-year period. Over the summer of 2024, we carried out a consultation and officials ran 15 public events throughout the crofting counties, which were attended by 257 people. It is fair to say that the bill has not lacked stakeholder engagement.

It has been mentioned that the bill does not go far enough and that it does not address some of the bigger issues that exist, but the bill was never meant to deliver fundamental reform. Officials have made that point throughout the process. Crofting law is complex, and even when there is consensus that something needs to be changed, it is often difficult to reach a consensus on what the remedy should be. Developing proposals and identifying workable solutions requires time.

However, the bill is more than just a technical bill—it is also an enabling bill. It will give crofters more options for how they use their land, it will allow approximately 700 people to apply to become crofters, it will streamline the enforcement of duties in the family assignation process, and it will prevent those who are in breach of the duties from profiteering and removing land from crofting tenure. Landlords and subtenants will be able to report breaches of duty to the Crofting Commission, and crofters will be able to apply to the commission for boundary and registration changes.

Rather than being viewed in isolation, the reforms should be viewed alongside the work that is being done by the Crofting Commission. As the commission pointed out in its evidence, it is important to note the interplay between the legislation and the commission’s policy plan. The legislation provides the necessary framework and the plan provides the detail of how the commission will administer and regulate. The commission has advised that it has the legislative tools and the resources to carry out its functions, and the changes in the bill will further support the commission in its work in processing regulatory applications and tackling breaches of duty.

The bill prepares the ground for what comes next. It will help to lay a stronger, healthier foundation for crofting, whereby we aim to have increased residency levels and more people actively using their crofts and common grazings. We will then be in a better place to take stock and consider what is needed for the future.

I am happy to take questions.

On the back of your statement, it is important to put on record the fact that the consultation and the pre-legislative engagement have been almost universally well received by stakeholders. The work that your team has done on the consultation and behind the scenes has been exemplary. Perhaps that is an approach that can be taken in relation to other pieces of legislation as we move forward.

You will not be surprised to hear that my first question is about how the Government will ensure that “environmental use” is clearly defined and actively managed to deliver environmental benefits while preventing neglect and absentee ownership.

I absolutely concur with what you have just said. The bill team has done a phenomenal job in the engagement that it has undertaken. As I went out on my own around the crofting counties, it was clear that the bill team had done a phenomenal amount of work. I hope that that will enable us to get the bill absolutely right.

With regard to your question about a clear definition, the bill makes it clear that “environmental use” must be planned and managed for a clear purpose and must not adversely affect adjacent land. Crofters are already familiar with the concept of acting in a planned and managed manner. It is vital that environmental use is undertaken in a planned and managed way, and for a clear purpose.

We are sympathetic to the concerns that someone might neglect their croft and claim that they are rewilding, but we believe that it will not be difficult for the commission to tell the difference between someone who is actively putting their croft to environmental use, who will be able to explain what the environmental benefits are and what they are trying to achieve, and someone who is simply neglecting their croft and presenting the results of that neglect as good environmental practice.

We have intentionally framed the provisions in broad terms to allow for flexibility and adaptability as new environmental practices and technologies emerge. We have taken note of the concerns that stakeholders have raised, and, as officials have already discussed at meetings of the crofting bill group and the cross-party group on crofting, we will strengthen the wording of the bill to avoid any misunderstanding of the policy intention.

Those changes might be along the lines of what has been expressed by those who have already given evidence. For example, “environmental use” could mean any land that is deliberately planned and actively managed to achieve a specific environmental outcome. Allied to that, in its evidence session, the commission explained that it intends to make changes to its policy plan. That will bring further clarity on the matter and explain what would be expected of crofters in meeting that specific duty. The legislation provides the framework and the policy plan provides the detail for how it will be implemented and enforced in reality.

The land is the key asset and we need to optimise its use, whether it be to produce food more sustainably, to cut emissions or to enhance the environment. There are 750,000-plus hectares of land in crofting tenure, which represents a significant opportunity to deal with some of the key challenges that we face in creating potential benefits for crofters.

I do not want to step on anybody’s toes with further questions on stronger enforcement, but there are a lot of concerns about the addition of “environmental use”. At the moment, people are not being pulled up for absentee ownership, neglect or whatever. However, we will move on to that later.

We have heard evidence that there are concerns that one crofter could put in a plan to rewild or to re-wet or do some peat restoration, which might have a negative impact on neighbouring crofts. For example, if a ditch ran through a number of crofts and one of the crofts decided to block it up to re-wet as part of an environmental scheme, that could be to the detriment of others further downstream. Who would police that? Who would decide whether there was a detriment to other crofts?

The thing about crofting is that it is supposed to be about crofting communities, and I would hope that those communities would work together. Anyone who has been in the crofting counties and communities will know that there is always the potential for difficulties, but my understanding is that, if there are individual disputes, the Crofting Commission will have a role to play in making sure that they are agreed amicably for the benefit of the entire community.

Does that need to be more formalised, so that it is quite clear in the legislation? At the moment, it is not clear how conflicts over detriment to neighbouring crofts might be dealt with. Do we need to spell that out a bit more clearly in the regulations and the legislation?

The commission has significant powers, but I am quite happy to ask Bill Barron or Michael Nugent to say whether those need to be strengthened.

We have been talking with environmental colleagues about that, and some of it will be covered in the commission’s policy plan. We will be able to put some flesh on it and provide the detail, so that crofters know what they can and cannot do when it comes to that duty and how the Crofting Commission will enforce it.

Will it extend beyond just the individual inby land crofts to the common grazings when a decision is taken?

The policy plan will include everything that is to do with crofting, so I presume that that will also have to be considered as part of the common grazings.

I would like to ask about some of the scenarios of crofters having a debate about what happens on inby land. Do you foresee common grazings committees continuing to have some role in managing such situations? I appreciate that we are not talking about common grazings, but is that part of what you would anticipate their duty being?

Do you mean the common grazings committees?

Yes.

They will have to work with their local community and the Crofting Commission to ensure that they are working for the benefit of the individual crofters as well as for the crofting community.

A theme that has regularly come through in all our conversations with crofting communities—and in yours as well, I am sure—is the appetite for more enforcement and regulation, which is not often the case in other sectors. How will you ensure that the Crofting Commission is resourced so that it can step in where it needs to step in and find a resolution, whether that means re-letting a croft, finding a subtenant or making other kinds of intervention to avoid situations whereby crofts are simply abandoned?

09:15  

That is a very good point. I regularly meet Gary Campbell, the Crofting Commission’s chief executive officer, and the commission’s chair, Andrew Thin. We discuss crofting and the commission’s performance, and those two topics—enforcement duties and regulatory application, and processing times—are always high on the agenda.

It has been clear that the commission is increasing its enforcement work. Last year, the commission commenced engagement with 215 crofters and resolved 134 breaches of duty through taking some form of regulatory action. The level of engagement and enforcement is increasing further for the coming year.

Since the summer, the commission has been terminating tenancies at a rate of one per week due to unresolved breaches of duty. That is significant. You can see that the commission is now using its powers of enforcement. As the committee was advised by Gary Campbell and Andrew Thin during their evidence session, the commission is better resourced now than it was a few years ago. It is already taking greater action to enforce annual notice provisions. As Andrew Thin said in his evidence, the commission already has the legislative tools to enforce duties through the crofting census, and, if the census is not returned, the commission will now be taking action. If the census is filled in falsely, that will be fraud and action will be taken. Spot checks will be carried out on those who have returned their census.

For many years, the commission has been supported by the Government’s rural payments and inspections division when proper local knowledge has been required to advise on regulatory applications. More recently, RPID has also been acting on behalf of the commission in connection with duties and enforcement cases. We are using the existing network and local agricultural offices in that way because that is more sustainable. We are seeking to establish a parallel network of local commission offices.

The bill will help further through streamlining the enforcement processes, the family assignation provision and the enforcement provision against subtenants and short lease holders. That will enhance the efficiency and scope of the commission’s enforcement functions.

Gary Campbell gave the committee some quotes about the level of enforcement that the commission is carrying out now, which was not happening in the past. I hope that that gives the crofting community confidence that the commission is using the powers that it currently has through the extra resources that were put in a number of years ago.

You mentioned co-operation with other organisations such as RPID. That has come up in evidence. The issue is related, as it is about enforcement. Can you say a bit more about how that will work? In giving evidence to the committee, directly or indirectly, a number of stakeholders have been looking for RPID and the Crofting Commission to work together more closely to gather evidence about activity or inactivity.

Those in RPID are the people on the ground in local areas. The Crofting Commission cannot be everywhere. It has the powers of enforcement, and using local knowledge through the RPID offices is clearly beneficial. As the committee knows better than anybody, being on the ground and knowing what is happening locally is probably one of the most important things that we can do to ensure that the crofting way of life and the crofting townships are functioning in the way that they were designed to do. It is a matter of using local knowledge and resource to ensure that crofting is functioning properly.

You mentioned streamlining. If I heard you right, you were focusing on the potential for the commission to spend less time dealing with assignations and more time doing other things. Can you explain whether there are other areas of the bill that allow the Crofting Commission to focus its activities in new areas?

Assignation is probably the biggest aspect, as that is where the vast majority of the commission’s time has been taken up. Bill Barron has worked in the commission, so I invite him to give a brief overview of the things that would eat into the commission’s time.

There are lots of things in the bill that will speed up different aspects of the commission’s work. For example, there is the ability to make changes to maps. At the moment, a mapping problem can cause a great many exchanges of letters and, eventually, Land Court processes and so on. The bill proposes to introduce a much simpler way of making changes to maps of crofts when that is required. The assignation, as the minister says, is a big aspect, and there are other things in the bill that will simplify and speed up processes.

The other key thing is that the process for enforcement is itself being streamlined and sped up so as to get through more cases in return for the amount of resource that can be put into enforcement. As the minister said, the level of resources went up a few years ago, and the commission is now benefiting from that. The backlogs have come down and we are able to see more resources going in, fewer distractions from elsewhere and a quicker process when enforcement takes place. That all adds up to a significant change.

It is a strange situation, because every other sector would demand less regulation, less red tape and less enforcement. Almost universally, however, those in the crofting sector are looking for far firmer enforcement—more enforcement and potentially more regulation—to protect the whole crofting community.

That is a very pertinent point. It is the crofting communities themselves that want the changes to happen. They understand what their community is, and there is a requirement to be able to say, “This is a functioning ecosystem, which we all live and work in.” If people upset that, we need to have the ability to intervene.

The Crofting Commission has clearly demonstrated that the matter has now become very serious for it. The signal is being sent out to those who might have been a bit lackadaisical in the past that the situation is no longer acceptable and that, if crofting communities are going to function as they are supposed to, they will have to comply with the duties. That can only be a positive thing.

There will almost certainly have to be additional resources. Mr Barron suggested that a reduction in the capacity required for assignations and boundary changes will bring an increase in capacity in some areas, but, from what we have heard, there is a lot to do, and there are a lot of concerns about abandoned crofts and those who do not abide by the regulations. We will therefore need more active monitoring and enforcement.

Are there any plans to use technology? We heard a suggestion that drones or light detection and ranging—LiDAR—could be used to detect changes in the management of crofts. Might that be considered in order to provide some more capacity? If so, would there need to be additional legislation to allow that to happen?

You are raising something that I have not heard about, but I am happy to take that away and consider it.

Thank you.

Good morning, minister. Section 3 makes changes to who can report suspected breaches of crofting duties. Two new groups are added to that list. When we had representatives of the Crofting Commission in front of us, they said that anonymous reporting made no difference to their work and that, in their eyes,

“anyone can allege a breach”

of duty, provided that they provide evidence. What is your view on widening the ability to report breaches of duties to include anyone?

I ask Michael Nugent to deal with the anonymity bit.

It is a difficult topic, and any views that I express are applicable only in this crofting context.

There are obviously advantages to anonymous reporting—that is obviously the case for the reporter. As for the overall disadvantages, I suppose that one is factual while the rest are perhaps a bit more subtle. Under the existing legislation, the Crofting Commission must investigate a “suspected breach of duty” that has been reported if it comes from one of the groups that are listed in the legislation. Unless the report is frivolous or vexatious, in order for the commission to know whether it must investigate that report, it needs to know who it has come from. The first point is therefore that the commission needs to know who is making the report.

Furthermore, in his evidence, Gary Campbell covered how, in a small community, you are more than likely to know who has made the report. If I was living in a community and somebody had reported me, I know that I would start looking around the neighbourhood and questioning friendships and relationships. People can easily make false assumptions. For example, they might think that their neighbour next door, whom they get on well with, covets their croft, or they might wonder whether it was the person whom they fell out with a few months ago about something that was not related to crofting. It is difficult to know, which can cause its own problems.

The third point is that, if someone wants to safeguard their identity when they make a report, the evidence that they give can be quite vague and can suffer as a result. If someone living across the road from me wants to safeguard their identity, they cannot make a report that says, “I live across the road from Mr Nugent, and there has been no car in the drive and his croft is overrun.” They have to be a little bit cuter and more subtle with the evidence, which can sometimes suffer as a result.

If I am right, you just said that the Crofting Commission needs to know who is putting in complaints, but that is not the case. On 24 September, the representatives from the commission said to the committee that they would be “quite content” if anonymous reporting was allowed and

“it would not make any difference”—[Official Report, Rural Affairs and Islands Committee, 24 September 2025; c 21, 22.]

to their work. Why did they say that to us when you are saying something different?

I am pretty sure, although I might be wrong—I do not have the Official Report in front of me—that Andrew Thin said in his evidence that, because of the way in which the legislation is structured, the commission must investigate whether the report comes from a grazings committee or from somebody within the crofting community, because it needs to know that in order to know whether it has to investigate.

I wonder whether the commission was saying that it needed to know but that it has no view on the question of anonymity within the community. Michael Nugent has set out the reasons why we feel that allowing anonymous complaints from within the community is not a great idea.

The commission also stated that it would consider a report of breach of duty from someone who is not on the list mentioned in the legislation but it would not then be required to do anything about it. Anyone could allege that there was a problem with a croft somewhere, but the commission has to act on reports only from those mentioned in the legislation. That is probably what Andrew Thin was trying to get at when he was giving that evidence.

You are quite content that the two additional groups that, through section 3 of the bill, you propose to put into the existing legislation expand it far enough.

At this moment, yes.

Mr Nugent, you talked about coveting thy neighbour’s croft. What policy are you envisaging that will cope with vexatious or repetitive complaints of that kind?

I must confess that I do not deal with those reports; the Crofting Commission does. Perhaps Bill Barron can give the commission’s position on that.

They do not often come up in that form. It is more often at the point at which a croft is being assigned when objections come in, such as, “I don’t want you assigning to that person, because there are other people, including myself, who would quite like that croft.” The commission is aware of that. Vexatious points rarely come up, but sometimes a point is made that does not go anywhere, because it does not have very much legal force.

There is a provision in the legislation that disapplies the commission’s duty to investigate if it considers the complaint to be frivolous or vexatious. Therefore, it has discretion to filter out that sort of complaint.

This might be a question for the Crofting Commission, but do you have any idea how many complaints it deals with annually, how many are investigated and how many turn out to be vexatious or found not to be valid?

Bill Barron might be able to estimate that.

Just an estimate is fine.

It is not a figure that I want to mention now, because it has been a couple of years since I left the commission.

We could get that figure to you. We could ask the Crofting Commission to furnish the committee with it.

I am sure that it will be in our papers somewhere, but it would be interesting to understand the numbers that we are looking at and the challenge that might lie ahead with the change in legislation.

We will move on to our next theme, which is the Crofting Commission’s powers. Beatrice Wishart has some questions.

09:30  

My question is about section 8 and the three-croft limit. We have already heard about the streamlining of the family assignation process. We heard evidence from NFU Scotland that the three-croft limit could stifle active crofters in areas such as Shetland because of different patterns of land ownership. NFUS suggested a flexible and regionally sensitive approach, or applying the limit only to family assignations. How will the Scottish Government ensure that the fast-track process balances the need for administrative efficiency with the flexibility to account for regional differences in croft sizes and ownership patterns?

Crofters have the right to assign their croft, but only with the consent of the commission. The legislation sets out the process that must be followed before the commission decides on the application, which includes public advertising and the opportunity for local crofters to object. When a crofter wishes to assign to a family member who might already be resident in the community, our position is that the process is disproportionate. It costs the crofter and the commission time and money, and we want to reduce the burden of crofting regulation where it makes sense to do so. That is one of the things that came out of my trip around the Western Isles, where we talked about family assignations. The resources that will be freed up by the change will then be available for the commission to deploy elsewhere. We talked earlier about reducing the burden on the commission so that it will be able to carry out more enforcement duties, for instance.

We settled on a limit of three crofts because that felt like it struck the right balance between the policy intention, which is to improve the efficiency of the service that is provided to customers, and concerns that there could be croft collecting or land banking by certain individuals.

The main reason for not going with a hectarage threshold is that we are including any interest that the crofter has in deemed crofts, which do not have a set hectarage. It is normal and accepted for some crofters to run their business on multiple crofts, and we are not opposed to that in any way, shape or form. It is also beneficial to the community if there are opportunities for new entrants to take on a single croft. All that we are saying is that, if someone has three crofts or more, their application will be subject to the current process. The local community will be given the opportunity to comment and the commission will give it reasonable consideration.

No one crofting area will be disadvantaged by the three-croft rule. We want to make family assignation as easy as possible, but, if someone has three crofts or more, it is worth having another look at that to make sure that there is fairness in the community.

Are you saying that there is some flexibility?

In what sense?

In relation to having three crofts within a family.

We are not saying definitively that, if someone has three crofts, they cannot have any more. We are saying that, if someone has three crofts or more, the Crofting Commission would take a look at any further assignation. However, that does not mean that it would say, “No, that’s not allowed. You can’t do that.” It is about making sure that there is an appropriate spread among the people in a crofting community and that, as I said, one family or one person does not just keep gaining crofts and land banking.

Tim Eagle has a supplementary question.

Minister, you might have just answered my question. I was looking through the consultation responses on this issue, and various crofters have raised concerns about croft size not having been considered and deemed crofts being double counted, which disadvantages people who have multiple small holdings. Respondents from Shetland noted that it is quite normal in Shetland for someone to have more than three crofts. You have answered that point. This is not about stifling economic growth or the sustainability of a croft; it is about making sure that there is fairness across the system. Is that what you are saying?

That is exactly what we are saying. One of the things that came up, particularly in the Western Isles, was the need to make the assignation process as simple as we possibly could, particularly for family members. However, that cannot result in a particular family hoovering up the entire area. This is just about the commission being able to say, “Hold on—you have three crofts. Let’s have a look at that and see whether we are in the right place,” but that does not mean that the commission would then say, “No—you can’t go any further.”

I will add some figures to that. We have 14,489 crofters, and 13,196 crofters have two or fewer crofts. That means that 91 per cent of crofters could be the recipient of a family assignation, as long as it is a family member who assigns to them.

That is helpful.

I have a short supplementary question. We quite often see crofts being subdivided, especially when there are several family members to whom someone wants to leave a share of the croft. If someone had three or more crofts that had been subdivided in the past, would that be taken into consideration, so that it would not count against them when the crofts were brought back together again?

You are getting technical now. I will pass that on to Michael.

That would be included in the count. The count will come from the register of crofts, so, if that individual is registered as having that croft, it will count.

It could be tiny pieces of land that we are talking about.

If someone had three or more crofts and there was an assignation application for what would be their fourth croft, it would have to go through the current process. I do not want to second guess what the commission would do in those circumstances, but if they were working their crofts, meeting their duties and returning their annual notice, I am sure that the commission would treat that assignation application in much the same way as it would today. It is just that it would have to go through the current process; that would be the only difference.

I presume that, if the croft has been subdivided and crofts have then been created, they would have to be counted as crofts. If they were not, would the crofts need to be re-amalgamated to make one croft? It could get very messy. Without putting words in the commission’s mouth, I presume that, as Michael Nugent said, it would look favourably on anyone who had three crofts, as long as they were meeting the duties involved in what we are trying to achieve.

That might be dealt with by the division application. If the division application would create tiny parcels of land that would be too small to be viable crofts, the commission would refuse it in the first place. What we have is a system with viable crofts; therefore, applying the three-croft rule makes sense.

Okay.

Minister, I think that you recognise that the size of crofts varies widely, depending on where they are in the country. Donna Smith pointed that out and suggested that regional discretion might work, which seems sensible. Is that something that would need to be in the bill, or could it be dealt with through guidance?

I am not sure that it is needed, but I will ask Michael Nugent to give his thoughts.

If the provision as currently worded remains in the bill, I do not think that we could stray from that. I had a quick look at the figures. I am pretty confident that these figures are incorrect, but we can provide figures to the committee if you can give us another couple of weeks.

We looked at the regional areas and where people have three or more crofts. If you decided that you were going to have a different system in Shetland, for example, that would benefit 338 Shetland crofters, but you would also have 645 Highland crofters in the same boat and more than 200 in the Western Isles. If you had different rules for different regions, there would be some people in the Western Isles who would like to benefit from the rules that existed in Shetland or in Orkney, which I think would very much complicate the process. The proposals will streamline the process and make it more efficient.

However, for someone who has three or more crofts, the process would simply be the one that crofters go through today and have been going through for years. The commission’s final decision will be based on the strength of what the local community says, if it says anything, and it will look favourably on any crofter who is using their croft, meeting their duties and completing their annual notice.

From what you have said, it would appear that one rule does not necessarily fit all, given how crofting in Shetland and perhaps in Skye differ from the situation elsewhere. Would there be anything wrong in setting out a policy that recognises the regional variations in crofting, given that we want to achieve a good outcome?

The difficulty is in how we would actually do that. Donna Smith’s point is that, when there are small crofts, there should be a variation to allow for a larger number. However, the place where people have been calling for such a variation is not the Western Isles, where the crofts are small, but Shetland, where the crofts are larger but it is slightly more common for people to have multiple crofts. Therefore, how would you go about saying what areas the variation would apply to?

This is a small adjustment that involves a decision whether to introduce a fast-track process or, instead, continue with an existing process; it is not about handing out gold rewards to people. Even so, if we go into the business of having a slightly different rule in one area and not in another, how would we justify not giving that slightly different privilege to a person who is exactly the same type of crofter as someone in Shetland, the Western Isles or Argyll but who happens to live in an area where the variation does not apply? That would be quite hard to do, administratively.

Thank you. That is helpful.

I have a question about community-led croft acquisition. How will the stage 2 amendments to section 10—which were alluded to by the Crofting Commission in its evidence to us—ensure that community-led croft acquisitions, including rural housing projects, are allowed?

That is a legitimate concern. Officials raised it at recent meetings of the bill group and the cross-party group on crofting, and we have begun discussions with stakeholders to try to resolve it. We are potentially looking to amend the bill in that regard. Michael Nugent can give you some background to the discussions that he has had on the matter.

I should begin by saying that we have not yet discussed this issue with James Hamilton and his colleagues in the Scottish Government legal department, but the aim could be delivered in a relatively straightforward way. If an owner-occupier crofter sells their croft to a natural person, the owner-occupier crofter’s status will transfer. That is fine—there is no change there.

However, the way in which we have worded the provision in the bill means that, if an owner-occupier crofter sells their croft to a non-natural person, that transfer becomes null and void. We do not think that that should be the intention. What we should have is a system in which, if an owner-occupier crofter sells their croft to a non-natural person, the title can transfer and they will become the landlord of a vacant croft but the owner-occupier crofter’s status will not transfer. That means that a local community body could become the landlord of the croft and could then decide who got that croft. We think that that addresses all the concerns that have been raised on the matter.

I know that we had lengthy discussions on the matter in previous sessions, so it is reassuring to hear that you do not think that there will be any issues with that.

I have a question about section 14, which concerns the commission’s powers to adjust boundaries. We have heard in evidence from legal stakeholders concerns about the possible conflict with title boundaries, which could create disputes. How will the bill ensure alignment between the crofting register and the land register while allowing practical boundary corrections?

09:45  

The bill gives the Crofting Commission two new powers to resolve registered croft boundary problems when all parties are in agreement. Adjustment will be possible in simpler cases in which no land is brought into or out of crofting tenure, and boundary remapping will be possible when more complex boundary changes are sought.

We have taken the concerns about boundary adjustments on board, and officials are in discussion with Registers of Scotland and the Crofting Commission to address them. We acknowledge that it is often important that the title extent, as shown in the land register, aligns with the occupied extent, as shown in the crofting register. The boundary adjustment process will give crofters whose boundaries have become unaligned the option of remedying the position that they find themselves in.

We are looking at various ways of ensuring that the boundary provisions consider the linkage between the two registers. One possible suggestion is that we allow the commission to award provisional consent to a boundary change. That would be subject to the necessary conveyancing, which would amend the title on the land register.

We will address the concerns that have been raised, and we will look to amend the current provision accordingly.

We heard in evidence from Brian Inkster that he thinks that the proposed provisions are “a recipe for disaster”.

As I said, we are looking at various ways of addressing the issue. We have listened to the concerns that have been raised, and we are looking at ways of getting this right.

Would you like to add anything, Michael?

Only that we think that the proposal that the minister has just explained will address the concerns that Brian Inkster raised.

We heard from other stakeholders that, currently, the crofting register boundaries are inaccurate and there would need to be tighter procedures to improve the process of amending registered boundaries. Does the bill need to go further?

I do not think so. We are trying to resolve the issue that has been raised, and I think that the proposal that I have set out is a potential fix to the problem.

I agree with the minister. The bill introduces two things. The first is a power to make corrections when the boundaries in the crofting register are wrong. Secondly, it provides an opportunity for a crofter or a landowner to apply to make a change not because the boundary is wrong but because it is simply inconvenient and it would be better if it were somewhere else.

The first of those measures, which involves creating a system whereby the commission or Registers of Scotland can just change the registered boundary and make it right, is probably slightly more difficult. We think that that would be used only in cases in which it was absolutely self-evident and agreed what the correct answer was, because, as soon as people get into disputes about boundaries, the only sensible place for those to go is the Scottish Land Court.

Thank you.

Our next theme is common grazings, on which Rhoda Grant has questions.

The bill stops the accidental severing of shares of common grazing rights from crofts. Why does it not do anything to stop the deliberate separation of such rights, whereby someone could reassign their croft but not assign the grazings share that goes with that?

As members of the committee know better than anyone, crofting law is unbelievably complex, and common grazings and the associated shares are probably the most complicated part of it. The policy intention is that there should not be any accidental or unintended separation of shares from the inby croft. Broadly speaking, everyone agrees with that.

We have listened to the views and concerns that were expressed by stakeholders before and during the evidence sessions, and officials have set up a common grazings sub-group, which has already met on two occasions. It is made up of crofting lawyers and members of the Scottish Government legal directorate, and it is working on a number of topics to resolve some of the concerns.

I will pass over to James Hamilton, because we are moving into the legal side of things.

Section 15 creates a presumption that the grazing right will be transferred by default, as a pertinent to the croft land. However, since the bill’s introduction, the committee has heard from legal stakeholders that, with owner-occupied crofts, there is a lack of certainty about the relationship with the grazing right and, in particular, about whether that grazing right can be characterised as a pertinent. For example, a 2012 Land Court decision says that the grazing right is a pertinent and can be transferred in a disposition of the croft if it is expressly included. However, the Land Register does not include grazing rights as a pertinent, which it would be required to do if those rights were thought to be a pertinent under the Land Registration etc (Scotland) Act 2012.

We have been engaging with stakeholders through the crofting bill group to identify the appropriate mechanism by which the grazing right can, as a default, be attached to the owner-occupied croft when it is transferred. To answer the specific question, that would still allow intentional separation of the grazing right. We are working with stakeholders to identify the appropriate mechanism to ensure that accidental separations do not occur and to demonstrate the link between the inby croft and the deemed croft and, subject to time allowing and the development of the bill, to see whether we can identify a process by which grazing rights that have been accidentally separated can be reattached to the inby croft interest. We are aware of those issues, we recognise them in the bill and we are working with stakeholders to identify the correct solutions.

By finding the solutions to those issues, we hope and think that we will alleviate most of the legal concerns that have been expressed, and we will make the necessary amendments to the bill as we go forward.

However, there are also policy concerns. We know that some stakeholders and crofters would prefer that the share always remained with the inby croft and could never be separated. The concern is that that might lead to many more common grazings not being used at all, at least for extended periods of time. Historically, it would not have been an issue, because most crofters kept livestock, but that is no longer the case. If 80 per cent of current crofters had livestock, we would not be having this conversation. In fact, if 50 per cent of crofters had livestock, we probably would not be having this conversation either, but we estimate that the figure is around 25 per cent, and it has been decreasing over the years. It is therefore not hard to imagine a township where all the crofters are meeting their inby crofter duties but none of them are using the common grazings.

In that context, I do not think that there is a justification for insisting that all the shares remain attached to the crofts in all circumstances. The decision should remain a matter of choice for the crofter. Many crofters will retain a share in a grazing, but others will have no interest in the share whatsoever because they use their inby land purely to grow food and not to run livestock at all, or they might have no intention of using it.

We have listened to the concerns and we think that the process requires a safeguard, so we are also looking to establish an agreed approach whereby a crofter, tenant or owner-occupier would have to apply to the commission to divide a grazing share from the croft, and they would have to state a reasonable purpose for doing so. We should trust the commission to regulate that and ensure that the right balance is struck between the shares being in the hands of those who will actually use them and protecting against too many shares being separated from crofts.

When discussing deemed crofts, we often start with the assumption that they are a bad idea, but the more important question is whether the shares are in the hands of people who are actually going to use them. In its evidence session, the commission correctly pointed out that a deemed croft can create an opportunity for a new entrant and their family by way of an apportionment. Officials are looking at whether we can amend the legislation to allow those who have an apportioned deemed croft to have all the rights that would allow them to work it as a croft, including being able to decroft a small area of land for a house. The purpose is to create the functioning community that we talked about at the start of the session.

I cannot quite understand why somebody would keep a grazing share and not have a croft. It seems that this has happened by accident rather than design, but now we are coming to a point at which people are looking at carbon trading, forestry, peatland restoration and the like, and the share in the common grazing could suddenly become very lucrative. Someone might be a dead hand on the community—they might have nothing to do with the community and have no croft there—but they could have a grazing share that they could use to prevent the crofters in the community from using the grazings.

On the point about having the maximum three crofts, there is nothing to prevent someone assigning their inby three crofts but keeping all the grazing shares, which would give them access to a lot more land. It kind of goes against the stated aims of the bill if we do not try to keep the grazing share with the croft or reunite them in instances where they have become separated.

I invite Michael Nugent to pick that up.

The point that the minister makes is really important. There are crofters who are meeting their duties for their inby. They are living within 32km and they are using their inby, but they have no intention of using their common grazings; it is not in their plans to use them. We therefore think that the ability to pass their share on to somebody else would be beneficial. When that share gets passed on—and when it is classed as a deemed croft—they can apportion it, so that it gets fenced off and they are able to use it. As the minister said, we are looking into whether we can amend the legislation further, with people having all the rights that would allow them to work an apportioned deemed croft as a croft while being able to decroft a small area for a house site. That is something that we are just considering at the moment, and we have not talked it through with SGLD.

We are saying that such decisions should remain a matter of choice for crofters, as they currently are. If we make the changes whereby the shares have to remain permanently, we have to accept a few things: that we are taking an existing right away from crofters and that we are closing off a route that would create opportunities for new entrants. Indeed, I think that, during its evidence session, the Crofting Commission said as much about the opportunities that would be created.

We will move on to more questions about deemed crofts and environmental use. There was a question in the consultation about the purchase of grazing rights and so on, although the question did not actually allow the respondents to say what we have heard in evidence since then. More than a third of respondents to a question about the purchase of grazing rights suggested that there needs to be more legislation around it. As was noted,

“Many respondents called for automatic grazings rights to be included with the parent croft, often alongside a call for deemed crofts to end.”

We understand why the proposed legislation would stop inadvertent separation—which is, effectively, a bad solicitor not doing the job properly, as they do not recognise that a grazings share is part of the croft. However, respondents described

“disadvantages of deemed crofts ... such as limiting the rights and crofting activity of the crofter; the risk of ownership of grazings shares becoming concentrated; and crofting communities becoming fragmented.”

The Highland Good Food Partnership said:

“Ideally, deemed crofts and grazings shares should stay with their parent croft. The loss of a grazings share may seriously damage the viability of a croft, especially where the crofter wishes to keep livestock.”

From my point of view, and given what Rhoda Grant said about the outcomes that we want from crofting legislation, I cannot understand why there would not be legislation to prevent the splitting of inby land and grazings shares, particularly given the potential economic value—which might not have been there in the past—with the ability to pursue carbon capture and so on. We will move on to discuss that in a minute.

Why are we not going further to stop this, unless there are absolute conditions? Michael Nugent suggested the scenario of splitting off a bit of land for a house or something like that. Why is there not an assumption against splitting the inby croft land and the grazings share?

You have already touched on the scenario of accidental separation. Some crofters do not use their grazings shares and have absolutely no intention of using them. However, somebody else might want to use those grazings shares, and they can be put to better use. That is the purpose behind the measure.

Is there anything that I am missing here, Michael?

10:00  

It might be helpful if I gave you an example that we heard about in evidence. Let us say that a non-crofter’s company needs to get rid of a £100,000 profit because of the tax on that. He seeks to purchase grazings shares on a 5,000 hectare hill in Skye, which seems to be a good deal and allows him to spend his £100,000. Ultimately, the land might be valuable because of what it can be used for, whether that is renewables or something else. The land would be taken out of the crofting scenario, which would not help townships or individual crofters and would potentially limit their viability. Why would the legislation not prevent that type of land banking?

We are trying to establish an agreed approach whereby a croft, tenant or owner-occupier would have to apply to the commission to divide the grazings share from a croft and would have to state a reasonable purpose for doing so. Therefore, we have to trust the commission to regulate that activity and to ensure that the right balance is struck between grazings shares being in the hands of those who will use them and protecting against too many shares being separated from crofts. I understand people’s concerns, because, in the past, the Crofting Commission was not enforcing its duties—I am trying to be polite—and was not deemed to be doing its job appropriately. That is not the position just now. The Crofting Commission is in very good hands at the moment, and people understand that it is doing its job properly to find the right balance for the communities that it works with. That is where we are at the moment.

The other aspect, which I think will help, is the change that James Hamilton mentioned. In the past, it was quite difficult to keep a deemed croft together with a croft, because they were listed in different parts of different registers and were not visible. We are doing as much as we can to make the links absolutely public and evident, as well as formally legally linked, so that the natural way to transfer a croft will be to transfer it with its grazings share. I think that that will make a huge difference. There have been a couple of thousand accidental separations. If we dry that up, the picture will change.

The other aspect that we are looking at in the sub-group, which James mentioned, is making it easier to reattach a deemed croft. Once we have worked out the legal form for linking a croft to its grazings share, we will have an approach whereby people can ask, “I have a croft and I have a share. Can I link them, so that they will be together going forward?”

The measures in the bill that seek to avoid the accidental situation of deemed crofts or grazings shares that are separated from crofts will be welcome. I am trying to get a picture in my head of a potential scenario in a township where several crofts could end up without any shares in common grazings. What would the Government’s view be on that, and what would that mean for any new entrant who did want to keep livestock in the village?

Would they be able to get a portion of common grazings land?

Would they be able to graze livestock if, hypothetically, half the available crofts in a village had become separated from the shares in the common grazings?

There are various ways that that situation might be resolved. They could look around for one of the separated shares and buy it; that is not impossible. There is also a role for the grazings committee, which manages the grazing rights and will be aware of any shares that are available and are not being used. Quite often, those shares are loaned for one year at a time.

That is helpful. You said that only 25 per cent of crofters have livestock. Although I appreciate that there has been a big decline in the amount of livestock that is kept, does the figure take into account things such as subtenancies, grazing agreements or, indeed, abandoned crofts?

That figure comes from the “Economic condition of crofting: 2019 to 2022” report, which was published in 2022. We publish a report every four years, so there is due to be one next year. I can find a more up-to-date figure for you, but we think that that figure of 25 per cent will be roughly the same. The figure is based on the number of crofters who claim Government grants on their common grazings. Having spoken to RPID officers, I think that there might be a bit of variation in the figure—1 or 2 per cent either way—because there will probably be some crofters who have livestock but who do not claim, although the vast majority do claim it. I can get a more accurate figure for the committee.

We have already touched on the potential implications of having too many deemed crofts in any one township for the communal aspect of crofting. One of the purposes of crofting is the retention of population. Would the Government consider enforcing crofter duties, the primary of which being residency, on shareholders who do not have a croft?

The commission cannot really enforce duties on deemed crofts. The immediate concern for enforcing duties on inby crofts is that—

I am talking about people who own a share in a grazing but who do not have a croft in that community.

Sorry?

Would the Government consider imposing, or—forgive me if I have got that wrong—does the Government impose the duty of residency on somebody who owns a share in a grazing in a community but who does not have an inby croft?

The Crofting Commission already has the power to enforce that duty.

Just to be crystal clear—this would clear up a lot—some of the questions that we have asked prior to this would need to be asked. The regulations around deemed crofting and deemed crofters are exactly the same as those for crofters who have inby land. If the regulations are enforced correctly, a lot of the scenarios that we are talking about should not exist.

Yes, because the commission can already enforce duties on those crofts.

Okay.

Bill Barron, you have talked once or twice about the role of grazings committees. We were made aware that a lot of grazings committees either do not exist or are not functioning. Will this legislation assist in reinvigorating those grazings committees? From what you say, it appears that they will have to shoulder a lot of responsibility for policing or facilitating under the legislation.

The bill is removing the most blatant bit of grazings committee policing, which was introduced in 2010 and which said that they have to report on every crofter every five years. That requirement has widely been ignored and has not been enforced by the commission, and we are getting rid of it, so that will be a bonus.

It is hard work for a grazings committee, and they are volunteers. It is about the balance of responsibility with opportunity, and there are things in the bill that will give grazings committees more opportunities—for peatland schemes and so on. Ultimately, I do not think that it will make a massive difference to the number of people volunteering to be on grazings committees. The commission is constantly trying to encourage that volunteering, as are other crofting organisations. In recent years, we have turned the tide on that: about five years ago, the figure had got a lot lower, and since then it has recovered. I hope that it will continue to go in that direction.

There is one final question on common grazings and a supplementary from Ariane Burgess.

Section 18 of the bill broadens the use of common grazings for environmental projects. What steps are you going to take to clarify the crofters’ right to carbon? Some landlords are saying that the carbon is theirs, so that they can sell off the carbon credits, but the peat, trees and grass on a common grazing are actually the crofters’. In the legislation, will you take steps to clarify that?

The bill provides crofters and landowners with a legislative framework to help them to propose and take forward environmental initiatives on common grazings. We hope that that will encourage crofters and their communities to have a much greater say in how the land is used in their area. We want to avoid a situation in which crofters are unable to access the funding schemes and incentives in order to do those things.

As I understand it, the legal ownership of carbon credits is still to be fully determined through case law, so I am not sure that we are in a position to state in crofting legislation whether the carbon rights sit with the landlord or with the crofter. In the meantime, we encourage crofters and landlords to start looking at and entering into joint ventures and to develop and secure shared solutions that benefit all parties. As I said, at the moment, we still do not know the legal ownership situation for carbon credits.

The carbon belongs to the crofter. The trees belong to the crofter, and they can cut them down. The peat belongs to the crofter, and they have a right to cut peat and burn it in their fires. The grass belongs to the crofter, because they can cut it and feed their animals with it. There is no dubiety about that. It seems to me that the bill is an opportunity to make sure that that is beyond question.

If we get absolute clarity on what you have just stated, we can come back to you. My understanding at the moment is that the legal ownership of carbon credits is still to be fully determined.

That is a cop-out.

What you listed there is correct. I agree that a crofter can cut peat, plant trees and so on. However, the issue is specifically to do with who owns the carbon credits. That is what we are unsure of.

If a landowner decided to sell carbon credits based on forestry on a common grazing and the crofter came and cut down the trees, the landowner would no longer be able to sell that carbon credit.

That is exactly why shared community conversations should be going on, until we have clarity.

I disagree, but I will leave it at that.

That issue was highlighted as one of the potential unintended consequences of bringing in a piece of legislation that addresses a lot of the issues that are stopping us from moving forward but that needs to be brought in prior to the next piece of crofting legislation—which the Government has not admitted will be required and which will be a bigger piece of work. That situation could create a loophole that could be exploited between now and when further work on a future crofting bill can be done.

On the question around the carbon issue, there is a case to be made for the work of Jill Robbie and her idea around a public carbon trust, which could be Scotland-wide. It could be worth looking into that.

I have a question about transparency in what is going on in common grazings committees. As the convener said, in some cases, they are not really active. In some parts of Scotland, in the crofting counties, not everybody is part of the crofting community, and some people are part of the community but are not involved in the committee. From talking to constituents, I have picked up that there is no transparency around what is going on in common grazings. They feel that things are being done to them, even though they are members of the community.

Section 16 requires

“a public meeting to appoint a new grazings committee”

and for the Crofting Commission to be notified of that, so there is something there, but could we have more transparency about the activities of the grazings committee and what is happening on the land? I also wonder whether, in some cases, grazings committees will fall under the new legislation that is coming in. The Land Reform (Scotland) Bill—when it becomes an act—and the land management plans could help in those cases.

Are you asking about transparency in relation to what grazings committees are doing on the land, which others do not know about?

Yes.

Okay. You have touched on an area that I genuinely do not know about.

We can take that away.

We can take that away and look at it. Are you talking about the wider community rather than the crofting community?

Yes.

10:15  

Okay. You have touched on something that I do not have an answer to.

There are parts of Scotland where people do not know what the crofting community is doing on neighbouring land. That is just what is happening with the land use patterns now.

You are saying that the crofters have the right to the land and the neighbouring community wants to know what the crofters are doing.

Yes. More transparency for communities is the general direction of travel that we are heading in, is it not? The land reform legislation introduced more transparency, so that communities know what is happening on the land around them. In this case, it might be about a grazings committee.

Okay. We will take the matter away and have a look at it.

We would want to keep it in balance. Grazings committee membership is a voluntary role. It is hard work without a massive reward, and a lot of bureaucracy around it would not be the right way to go. However, we will look at the issue.

There is perhaps something in there. I am talking about grazings committees, but there are also volunteer organisations that set up development trusts, which do a lot of work and do amazing things, and that is hard work, too. It is something to look at.

I have a couple of questions, minister. The first is on carbon projects, because there is a valid point there. I did some work for a wind turbine on Scottish Government land—I probably should declare an interest in relation to that. A wind farm was going up, and we were giving crofters quite a significant amount of money. Then the crofting tenancies got the—[Interruption.]

I will let the minister cough. Feel free to get some water, minister. It is that time of year.

The big question, which has been got at a wee bit, is whether you are conscious that we do not want there to be speculative buying—or coming into—of land, such as deemed crofts or hill land, just because of the potential future value in the carbon markets, as that would ruin the whole ideology of what crofting is to the Highlands and Islands. Does that make sense?

Absolutely. I am very conscious of the fact that that is a potential area of concern as we go forward. However, it is also a massive opportunity when we consider the sheer scale of crofting land that has the potential to help us with our environmental desires and what we are trying to do as a country.

We will definitely take a very close look at the issue. However, until we have clarity about the legal ownership, we will just have to keep an eye on it.

I will come back quickly to deemed crofts. I am aware of an example on Jura, where one person has six deemed crofts but is considered absentee, and loads of other people in that area need, or would like, access to that ground but cannot get it. There have been a lot of questions today, but are you prepared to have discussions with us in advance of stages 2 and 3, to see whether more could be done in the bill around that issue?

I am happy to engage with anyone who wants to talk to me before stage 2—there is absolutely no question about that.

If the owner of the six deemed crofts is absent, they are not fulfilling their duties and it is up to the Crofting Commission to ensure that they do so.

It is good to have that on the record. I will send an email to you separately.

In section 32, which is an additional section, you are removing the necessity to have a landlord representative on the Crofting Commission. There has been some concern as to why you are doing that—I think that Scottish Land & Estates brought that up during our round table—particularly because it is increasingly likely that landlords will be community bodies. Why have you felt the need to do that at this point?

We recognise the importance of the landlord’s voice, and the bill continues to recognise that as well. However, there are normally only three appointed commissioners, and those appointments come round only every few years. Other skill sets might be even more important. We must retain the flexibility to make the best appointment. The bill will provide that Scottish ministers must consult the commission and have regard to the desirability and value of appointing a commissioner who can represent landlords’ interests.

The Crofting Commission—it is not the Crofters Commission any more—must consider all the regulatory applications in the drafting of its policy plan. The board has a responsibility to consider all relevant parties, including the landlords.

There has been a worry that adding section 32 makes it look like you are not interested in what landlords are saying. Can you confirm that that is not your intention and that you still value what landlords are saying, whether they are private landlords or community landlords, which I think they will increasingly be? They will still have the ability to be on the board—you are just taking out the requirement for them to be on it.

Yes. You should bear in mind that the Scottish Government is also a landlord. There is absolutely no desire to water down or dilute landlords’ ability to be represented. It is just that, in this circumstance, there may be other, more effective uses of that place on the commission.

Okay—fine. I think that you mentioned this in your opening statement, but some responses to the consultation said that the bill does not go far enough. Quite a lot of crofters mentioned the escalation in the market for crofts and tenancies and what that means for new entrants being priced out. How do we get new entrants into both crofting and farming, but specifically crofting, given that we are discussing that today? The bill does not really go into that. Is that something that you have missed? Is the bill a missed opportunity? How do you respond to those people who have said that the bill does not go far enough in that respect?

The bill was always deemed to be a technical bill to fix some of the anomalies, such as the one on assignation to family members.

We have done a number of things that should allow us to get the outcome that you mention. The enforcement of duties is a really important one, because there will be circumstances where people—who have been wilfully inactive and not dealing with their crofts—will simply not come back. As I said earlier, a croft a week is being re-let by the Crofting Commission. That is creating a sense in the crofting communities that things are now beginning to work and function in the way that they are supposed to. That is largely down to the excellent efforts of Gary Campbell and Andrew Thin. I think that the simplification of the assignation of family crofts and the provisions on assignation to two people have gone some way towards achieving the desired outcome.

Is there more to be done? Absolutely. There will always be more to be done, but the bill as it stands will meet the objectives that people set out to achieve long before I was a minister, when they started to talk about the subject. The bill will meet those objectives and it also seeks to add one or two things that will allow us to try to restabilise the crofting community spirit.

Is that a fair comment? My understanding is that people were expecting the bill to be more than a technical bill, but you feel that it was only ever going to be a technical bill.

My understanding is that it was supposed to make technical fixes.

Okay. On the point about new entrants, we can have this discussion between stages 1 and 2, but do you have anything in mind away from the bill, whether in primary legislation or in what might follow, that will encourage new entrants into crofting?

As you know, we have a programme for government commitment to make sure that every public owner of land, which includes the Scottish Government and anyone who has crofting land, to look at the opportunities to get new entrants in. As you well know, I am passionate about making sure that we get a vibrant new generation of young folk coming into crofting and farming. We are taking the steps to make that happen and we are starting to see the results.

I asked about that because the subject was raised in the consultation responses as a significant one, so I thought that it was worth mentioning.

We will move on to the next theme, which is the crofting register, with questions from Emma Harper.

Good morning. No concerns have been raised about sections 21 or 25, which seek to simplify the governance of the crofting register and the register of crofts. That is good news.

Section 26 seeks to expand the powers on the correction of errors to allow the keeper to fix clerical mistakes at any time. Minister, you alluded to that when we talked about mapping and digitisation. Brian Inkster mentioned in his evidence that we might be opening “a can of worms” and raised concerns that allowing post-registration amendments to the crofting register could create legal uncertainty. Do you have any thoughts on the evidence that Mr Inkster submitted?

We have taken on board the comments from stakeholders, including Mr Inkster. However, 93 per cent of respondents to the consultation supported that provision. Officials are already in discussion with the Registers of Scotland and the Crofting Commission to ensure that the legislation cannot bring about the scenario that was outlined by a solicitor in their response to the call for views.

The bill already has a condition that the commission must contact all parties that have an interest and that are affected by rectification, and the commission

“must have regard to any representations”

that they make.

We do not think that the scenario that was laid out in the call for views would happen, because the third party in that scenario—the one who builds a house on the disputed land—would be able to object to the rectification, as they would be deemed an interested party. The commission would not take a rectification forward in those circumstances. When there are disputes, it will always remain for the Scottish Land Court to resolve them, so the Crofting Commission would not take forward a rectification.

Okay. One additional issue might be if land that was previously excluded were later added to a croft. Would it be part of the rectification process?

Potentially, but, once again, all the interested parties would have to be involved in the process. As I said, the commission has to contact all interested parties and have regard to any representations that they make.

As you were saying, this is about simplifying the process to make it easier for boundaries, fences or ditches that were previously excluded to be added to a croft.

Yes. Doing so is covered by the boundary provisions. The rectification process occurs if there was an error when the croft was registered, which it corrects. When there has not been an error but a change that is wanted by all parties, that is covered by the boundary provisions.

Okay. Thank you.

We have now come to the end of part 1 of the bill, but I want to follow up on Tim Eagle’s suggestion that a lot of stakeholders thought that it would be more than a technical bill. The sump report suggested that more radical legislation to transform crofting and bring it up to date should be introduced. Minister, what discussions are you having on that and when do you intend to look at implementing more radical crofting reform?

It was never intended for this bill to deliver fundamental reform. It is technical in nature and provides the necessary improvements while enabling crofters to take control of how they use their land.

The future reform will absolutely be necessary, but I caution against rushing straight into it. We first need to establish what crofting policy should be in the future, and, similar to the approach that we took with this bill, we need stakeholders to consider what that policy is. Although it is ultimately the responsibility of Government to set policy, that should never be done in isolation. At the start of the session, you referenced how well that work had been done by the officials, who ensured that they were actively engaged with the stakeholders.

Once we have the views, we will need to see where they converge and where negotiation and compromise will be required. The discussions of the past three years have been informative and have led us to produce a bill that has had wide stakeholder input and buy-in, but they have also told us that there is a wide range of views out there.

From the consultation responses, we can tell that some crofters want more regulation, but an equal number of them appear to want less. Some stakeholders are asking us to review a crofter’s right to buy their croft, which is a perfectly reasonable question to ask, but more than 6,500 crofters have already exercised that right. Establishing clear policy outcomes will therefore take time and it will be central to any future wholesale reform.

From my travels around the country in the summer, I know that we were getting different views from different sets of crofters, each of which raised absolutely valid concerns, but a wide range of considerations will need to be given to any future policy programme.

10:30  

Back in 2018, the Government announced its intention to introduce a phase 1 bill in response to many who believe that crofting reform needs to be substantially reviewed and modernised. We have phase 1, which will, in many ways, simplify and correct some less-than-perfect legislation. However, there is still the underlying desire for radical reform that was set out in 2018. What are the timescales for bringing that forward, given that it has been quite some time—seven years—since the Government made the commitment?

As I said earlier, the bill gives us a solid foundation and a bedrock to go forward from. I am not going to put a timescale on when we will introduce new legislation. We are coming up to an election next year, and a whole load of things will have to be discussed between now and then.

I absolutely take on board the point that you and stakeholders have made that some people would like to see the reforms go further, but, as I say, others want less regulation. All that would need to be considered as a policy objective, and it is very much in my mind for when we see what happens next year.

A lot of stakeholders will be disappointed in your statement, minister, given that they expected a more substantial and transformational crofting bill to come quite quickly on the back of this technical bill. It is disappointing to hear that you do not have any firm timescales for delivery of that reform. The feeling that we get from stakeholders is that they thought that the bill was a small step towards more transformational change.

I am just going to come in on that point, minister. That was my understanding. Legal experts have said that the legislation is quite patchwork and all over the place. Highland Council and Western Isles Council have commented that there should be a root-and-branch reform of crofting. I do not have the quote in front of me—I was desperately trying to find it—but I thought that the Scottish National Party had said that it would do a big reform of crofting law, and that is not what this bill is.

Within the consultation responses, there is wide acceptance that the bill contains some good stuff and we want to see that, but that does not take away from the fact that many, in the consultation responses and afterwards, including the Scottish Crofting Federation, have said that we need more of a root-and-branch reform of crofting law. Given that they have waited for years, how much longer do we need to wait to make sure that crofting is fit for the future?

Since 2018, a number of things have got in the way of delivering a bigger crofting bill. I am not going to go over the history, but I have already said that we absolutely understand that there will have to be a bigger crofting bill further down the road. However, we are focusing on making sure that we get this one right and that we get people on board with it, once the bill is passed by Parliament, as I hope that it will be. That will give us the bedrock to allow us to look at what is next. We absolutely know that this is not the final point—it is a journey, and I am committed to making sure that we continue on that journey, even after the bill is passed.

We will move on to section 2, which is—apologies to solicitors—probably the drier part of the legislation.

I will suspend the meeting for five minutes—that is a relief—to allow a changeover of witnesses to bring in the lawyers for what I have just suggested is the less interesting part of the bill.

10:34 Meeting suspended.  

10:42 On resuming—  

Welcome back. We now move on to consideration of part 2 of the Crofting and Scottish Land Court Bill, which relates to the merger of the Scottish Land Court and the Lands Tribunal for Scotland. The minister is joined by two Scottish Government officials: Martin Brown, solicitor, and Marion McCormack, civil courts, justice transformation and inquiries. Marion joins us remotely.

Do you have an opening statement to make, minister?

I do. I thank the committee for the opportunity to give evidence on part 2 of the bill, which makes provision for the merger of the Lands Tribunal for Scotland and the Scottish Land Court.

The merger will create a one-stop shop for users, thereby offering a streamlined process that will be clearer and easier to understand and navigate. The rich history of the Land Court, which dates back to April 1912, and the affection in which it is held, especially in the crofting community, are recognised and respected in the bill. That is a key reason why the tribunal, which is itself a respected body with important functions, albeit one with a shorter history, will be joining the court.

The bill also seeks to preserve the traditional character of the Land Court. That includes maintaining local sittings and retaining the requirement for a Gaelic-speaking member.

Under the new arrangements, the composition of the bench will reflect the specific requirements of each case. There will be no dilution or diminution of expertise. The newly expanded Land Court will retain and, indeed, strengthen the depth of specialist knowledge that is available. The bill also provides for the expansion, by regulation, of the Land Court’s jurisdiction on a case-by-case basis.

Importantly, on-going proceedings will not be disrupted by the merger. The provisions have been designed to provide flexibility so that any transitional or implementation matters can be managed smoothly as they arise. Although the tribunal’s jurisdiction and functions will transfer to the court, the tribunal itself will not dissolve immediately. Its members will be able to sit in the court during the transition period. Full integration will follow through separate legislation.

10:45  

Alongside the merger provisions, the bill will enable suitably qualified members of the merged court—and, on a transitional basis, members of the Lands Tribunal for Scotland—to act in the Upper Tribunal. Although the provisions are largely administrative, they will enhance the resilience of the Upper Tribunal by giving it access to a broader range of expertise when required. To ensure that that is done appropriately, there are a number of safeguards in place, which involve the chair of the court, the president of the Scottish tribunals, the Lord President and the members themselves.

In summary, the proposals in part 2 of the bill will bring about practical improvements, while safeguarding the proud heritage and expertise of both institutions. They offer continuity where continuity matters and change where change is needed.

I am happy to take questions from the committee.

Thank you, minister.

The policy memorandum does not explain the Scottish Government’s reasons for the proposed merger of the Scottish Land Court and the Lands Tribunal for Scotland, and the Law Society of Scotland has expressed concern that the main driver could be to cut costs and reduce capacity. I note that you said that the proposal will create a “one-stop shop” and that there will be “no ... diminution of expertise”, but could you explain what the policy objective is for the merger? What reassurances can you give that resources and capacity will be maintained?

The policy objective of the merger—which has been talked about for a very long time and has been looked at by various institutions over that period—is to give a streamlined structure to the current system. As I said, the merger will not result in any diminution of the ability of the tribunal or the court. In fact, it will enhance it, and that has been broadly welcomed by most people we have spoken to.

The last time the committee took evidence, we heard about the concerns that Lord Duthie had raised about how the newly merged court would ensure that it managed its workload fairly. We had a discussion about internal appeals and appeal routes. Can you say anything more about the appeal routes in the new structure and how those will be managed?

The point about internal appeals is being looked at following Lord Duthie’s input. The current system works well for the Land Court, and the bill keeps that position in place. However, it perhaps does not sit well enough with what will come in from the Lands Tribunal, so we are looking to change that. We are actively considering how to get that right through amendments.

Thank you.

The bill retains the eligibility requirements, including the requirement for a Gaelic-speaking member. How important is that requirement, given the provisions of the Scottish Languages Act 2025, which seek to strengthen and actively promote Gaelic?

I think that it is vitally important. When the requirement for a Gaelic-speaking member of the court was first established in statute in 1912, Gaelic speakers had no protection in law. The inclusion of that requirement created an opportunity for Gaelic speakers to use their language of preference in at least one institutional setting of importance to them. The requirement was also an important recognition of the worth of the language and of its speakers, and it is important that that respect for the language is not lost.

The 2020 consultation on the future of the Lands Tribunal and the Land Court gauged opinion on whether the Land Court required to have a Gaelic-speaking member, and the majority of respondents considered that essential. Many of the stakeholders who are in favour of maintaining the requirement for a Gaelic-speaking member have noted that, for many crofters, Gaelic is their first language, and that that identity must be acknowledged to ensure that their civil and human rights are not eroded.

Stakeholders also highlighted that there is a close relationship between the Gaelic language, the land and crofting. There is reasoning in the Gaelic language that does not transfer into English, meaning that an argument can sometimes be made properly only in Gaelic, and it requires a Gaelic speaker to fully understand the points. From a personal point of view, it is a heritage that I believe we should cling on to dearly. That is despite the fact that I cannot speak the language, although I would very much like to.

Hopefully, Gaelic speakers also believe that we should cling dearly to the language.

You mentioned that there are many crofters for whom Gaelic is their first language and that some terms of phrase, even relating to land rights, might not directly translate. Are there particular situations where that has arisen so far in the court, or is the minister just generally aware that that can be a factor?

I am generally aware of that, given the fact that I am not a Gael. I cannot give a specific answer, I am afraid.

I want to explore the idea of the Land Court expanding its jurisdiction to become an environmental court, which, according to the policy memorandum, could be considered in the future. There is an on-going breach in Scotland of the Aarhus convention’s access to justice requirements. People cannot get access to justice because of the cost of taking forward litigation. Is there an opportunity to speed up the process and follow the requirements? In a 2025 update, the relevant United Nations committee described Scotland as failing to guarantee compliant environmental justice. Is there an opportunity to explore and bring forward the Land Court’s expansion, rather than consider it in the future?

The bill provides ministers with the flexibility to adjust the jurisdiction of the Land Court. It is clear that the new, expanded Land Court will work primarily within the context of Scottish farming and crofting. It does not have universal jurisdiction to deal with all matters relating to land. Complicated environmental cases are likely to cover a number of issues, such as cultural, social and economic. As a result, such cases, among other issues, should continue to be considered in the current courts and tribunals system.

The Scottish Government is committed to ensuring that there is effective access to justice on environmental matters in Scotland. Since the United Kingdom left the European Union, steps have been taken to strengthen access to justice in environmental matters. Environmental Standards Scotland is an independent body that has been set up to ensure that environmental laws and standards are adhered to in Scotland. ESS replaces the European Union’s scrutiny and enforcement role.

At the time of the Scottish Government’s review of environmental governance, ESS was a new body. The Scottish Government acknowledged that time was required to allow the new arrangements to be implemented in full. In its draft strategy for 2026-31, ESS has stated that it

“will ensure that the environmental governance system works effectively”.

I hope that that gives the committee some confidence that work is going on.

My understanding of anything that the Government and Parliament are doing is that there is always work going on. Bills are part of a process to unlock powers, and to give powers either to ministers, councillors or public bodies. I understand that work is on-going, but the situation seems to be somewhat urgent. I get that Environmental Standards Scotland is in place, but organisations are having to take forward judicial reviews, which is very costly. What organisations and the UN are looking for is access to more affordable justice.

At this stage, the bill is primarily engaged with farming and crofting. That is its function at the moment.

It is primarily engaged with farming, crofting and land issues, and an awful lot of environmental issues take place on land. It is worth considering that point.

Point taken.

Minister, are you in favour of a stand-alone environmental court, or might what we have now change in future to cover more environmental cases?

As I said, Environmental Standards Scotland is an independent body that is currently setting out its strategy for 2026 to 2031. That is the current position.

I want to pick up on the convener’s question. We heard from the Land Court last week, and one of its concerns about expanding its jurisdiction would be the resourcing. Are budgetary concerns part of the challenge? Do we not have the finances to meet our environmental obligations?

I cannot give an answer to that one way or the other. My consideration has purely been about what the merger would deliver for crofting regulation.

We have no further questions, minister, so I thank you and your officials for your time this morning.

10:55 Meeting suspended.  

10:59 On resuming—