Chamber and committees

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 and 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.

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.

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 of 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 than 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.

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

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

Point taken.

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

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.

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?

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