Meeting of the Parliament

Meeting date: Tuesday, May 2, 2017

Official Report 807KB pdf

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Crofting Law Reform

The next item of business is a debate on motion S5M-05245, in the name of Edward Mountain—you are working hard today, Mr Mountain—on behalf of the Rural Economy and Connectivity Committee, on its report on a review of priorities for crofting law reform. Again, we have some time in hand, so members in the open debate may make speeches of five minutes. Is that not exciting for you?

I call Edward Mountain to speak to and move the motion on behalf of the Rural Economy and Connectivity Committee. Mr Mountain, you have a generous eight minutes.

15:42  

For the record, I should say that I work hard every day, Presiding Officer.

I realised as soon as I had said it that that was rather unkind.

As the convener of the Rural Economy and Connectivity Committee, I welcome this debate on the committee’s review of priorities for crofting law reform.

I thank all those who gave oral and written evidence to the committee. I also thank the members of the committee for their positive approach, which has resulted in a positive report. Furthermore, I thank our clerking team, who have accurately reflected our deliberations in the report that has been published.

I note the cabinet secretary’s written response to the report, and I look forward to his comments on the specific recommendations in the report in due course. I should point out that the committee, in carrying out its review, acknowledged the significant amount of work that has already been undertaken in the area, including previous reforms of crofting legislation, the identification of priorities for further legislative reform by the crofting law group and work by the crofting legislation stakeholder consultation group.

All that work has highlighted the fact that, despite several recent pieces of crofting legislation, there remain a large number of issues within crofting law that need to be addressed. I should also point out that, during the evidence sessions, it became clear to the committee that crofting is not a happy place to be at the moment and that to do nothing or to prevaricate is not an option.

Turning to the report, the first issue on which the committee is clear is that there is a need for a new and clear crofting policy. From the evidence that we heard, it is clear that Scotland needs a policy for crofting that is fit for the 21st century. The Government and stakeholders need to develop such a policy expeditiously, because only once a policy has been identified can the Government design legislation to achieve that goal. Policy must be delivered by legislation, and not the other way round. Legislation that was designed to protect crofters in the 1800s might not be—and in some cases is probably not—suitable for today.

When it considered crofting policy, the committee heard that a number of issues need to be addressed. The first of those is crofting development. We heard that there has been very little development of crofting under Highlands and Islands Enterprise. Some felt that since the passing of responsibility for the development of crofting to Highlands and Islands Enterprise under the Crofting Reform (Scotland) Act 2010, HIE’s focus has been primarily on crofting community development rather than on providing support for individual crofters or promoting wider crofting interests. We heard evidence that the development function should sit with the regulation function in the Crofting Commission. Given the importance of the development function to the future of crofting, we are clear that the Scottish Government must seek further views on where that responsibility should lie.

We also heard a lot about the role of crofting commissioners, which was raised by more than one person; indeed, the very first email that I received when I was elected to the Parliament was on that subject. We heard that there was some confusion about whether elected commissioners were required to act on behalf of the whole commission or whether they were simply delegates representing their constituencies. Concern was expressed about the role of elected commissioners, with one witness—Sir Crispin Agnew—stating that given that the Crofting Commission is part of the regulatory system, it is, in effect, a court with elected judges.

The crofting community has concerns about the role of commissioners, too. We heard that a delegated decision-making process is being developed for the commissioners. That means that the staff of the commission will be tasked with making decisions in individual cases, with the commissioners having a wider overview of policy. As a committee, we feel that a non-executive role for commissioners should be further developed as a priority. It is clear that the future role and responsibilities of elected commissioners should be carefully considered to save internal division and the setting of crofters against one another.

The committee also heard concerns about the crofting register, which was introduced by the 2010 act. The committee feels that the register is important as, when it is complete, it will be a definitive record of all land in crofting tenure in Scotland.

There is concern about the costs involved in registration and, in particular, the costs of meeting public notification requirements via local press advertisements, and the committee believes that there should be a move towards a suitable online solution that would remove the need for costly advertising. It welcomes the fact that the Cabinet Secretary for Rural Economy and Connectivity is prepared to look at that.

The committee also heard that the mapping of common grazings had “ground to a halt” as a result of a lack of funding. It feels that the completion of that important exercise should be prioritised, and it calls on the Scottish Government and the Crofting Commission to consider how that will be achieved and resourced.

The committee took evidence on absenteeism and neglect of crofts, which is a knotty issue. We heard from some witnesses that the process for managing cases of absenteeism under the 2010 act is complicated, time intensive and difficult to implement. That was acknowledged by the cabinet secretary, who said that he is willing to look at it. We believe that it needs to be streamlined.

The committee was surprised to learn that the legal requirement for grazings committees to produce annual reports on matters such as absenteeism and neglect is not being complied with. That is not acceptable, and it raises the question whether the requirement should be enforced or removed.

The committee also heard about the need for new entrants to crofting. If crofting is to flourish, it needs new entrants, and we welcomed the input that we got from the young crofters group. It was clear that there are significant barriers to potential new entrants to crofting. We welcome the Scottish Government’s commitment to introduce a new entrants scheme for crofting and the cabinet secretary’s agreement to explore the potential for areas of common grazing to be used for the creation of new crofts as part of the development of that scheme.

We also heard about owner-occupied crofts. The issue of how they are to be treated proved interesting. Some said that the owners should be treated as crofters, but others said that they should be taken out of the crofting scheme altogether. Having heard from two different schools of thought as to how owner-occupier crofters should be treated, the committee believes that the issue needs to be examined further.

We also heard about common grazings. The committee heard from several witnesses that, in some cases, common grazings have been separated from crofting, with common grazings shares in the hands of some who no longer own crofts—slipper crofters, if you will.

We heard that there is a very narrow agricultural context for common grazings under crofting legislation, which might not be fit for purpose. We are in no doubt that the legislation and guidance covering grazings committees need to be updated to reflect modern circumstances in relation to subsidy payments and environmental and renewables opportunities, for example—opportunities that can be grasped to ensure that the income from the grazings goes back into the crofting community.

On the legislative approach, the committee heard loud and clear that the crofting sector is blighted by outdated legislation and policy. We all agree that we must play a part in ensuring that crofting and the crofting community can move forward with confidence towards a successful and sustainable future. The proposed crofting bill and plan for crofting must therefore be comprehensive and address the modern needs of crofting and crofters, and they must deal with all the issues that have been identified. We need to move away from the piecemeal approach of bringing forward, every few years, crofting acts that make limited changes. We believe that the Scottish Government must commit to ensuring that the timetable for the proposed bill allows sufficient time for detailed parliamentary scrutiny and that its passage is completed comfortably before the end of the current parliamentary session.

I look forward to the debate and to hearing responses to the points that the committee has raised.

I move,

That the Parliament notes the Rural Economy and Connectivity Committee’s 4th Report, 2017 (Session 5), Review of Priorities for Crofting Law Reform (SP Paper 100).

I call the Cabinet Secretary for Rural Economy and Connectivity, Fergus Ewing, to open for the Government—a generous six minutes, please.

15:51  

I start by thanking the committee for considering crofting so early in the parliamentary session and for taking the time to prepare and publish its report.

The Scottish Government supports crofting and the crofting way of life; we do so with policy and financially, and with deeds as well as words. As well as through pillar 1 of the common agricultural policy, that support comes from a package of measures that includes around £28 million through the less favoured area support scheme for more than 6,400 claims in the crofting counties, and the croft house grant scheme, with £15 million since 2007 helping to build and improve 800 croft homes and £2 million that has been allocated for 2017-18. In that regard, some £948,000 has been shared among 29 crofters so far. Many members—for example, Dr Allan, particularly in relation to his constituency—have lobbied me hard on that.

Other support includes the crofting agricultural grant scheme, with £10 million since 2010 approved for more than 3,550 applications for capital items such as fencing, sheds and drainage; the crofting cattle improvement scheme, with £3 million for a state-of-the-art bull stud, which opened officially in 2013 and has more than 400 beneficiaries each year; the Scottish rural development programme, with £8 million available to help young farmers and crofters set up; veterinary support of £760,000 per annum; and farm advisory support of around £650,000 per annum specifically available to crofters and small farmers in addition to general advice.

Much has changed in crofting law, but it is still based on the Crofters Holdings (Scotland) Act 1886. We shall consider modernisation of crofting law during this parliamentary session, but that will be no easy task. The issues are complex, the opinions are diverse and there are no straightforward answers. Our aim in legislating is to get the best outcomes for crofting, but compromise will be required. The report raises many important issues, but I cannot respond to them individually today. The Scottish Government shall consider the report in detail as part of the legislative development process.

In considering legislation, we must work out what we want crofting to deliver, and I am pleased to note that the committee’s report supports that view. We must consider legislation from an open perspective. For example, legislation can take different forms: it could be a tidy-up, it could be a consolidation exercise or it could take a clean-sheet approach. I agree with the committee that matters such as common grazings, owner-occupied crofts, the encouragement of new entrants, crofting regulation and tensions around smallholdings all need to be considered.

However, the committee’s report also makes recommendations on non-legislative aspects of crofting policy, and I welcome that. Legislation is not necessarily the best way to make improvements. For example, we have made it clear that we shall engage with crofting stakeholders to undertake the drafting of a national development plan for crofting as part of a sustainable rural economy, and that plan will help us to identify issues that we do not necessarily require legislation to address—for example, loans for croft houses.

New entrants are crucial. With new blood come new practices, innovation and an enthusiasm that energises the sector. The croft house grant scheme, which has enabled hundreds of young people to establish a house in their own part of Scotland, is a good way to encourage and enable young people to become new entrants to crofting. Work has already begun in the crofting stakeholder forum to identify what a new entrants scheme for crofting might look like. Of course, existing support measures are already available to new entrants.

We also wish to consider woodland crofting. On Friday last week, I had the pleasure of visiting Loch Arkaig, where I had a very useful dialogue about that topic with the local community and the Woodland Trust.

Many will be interested in the timing of any future bill. As previously advised, the decision on the timing of legislation will be taken within the context of the Scottish Government’s many legislative priorities. It is important that we take our time to consider what is best for the future of crofting, and it is essential that we get that right. We aim to do so within the current session of Parliament.

The process of creating new legislation should always be an open one. I know from my own experience that the best solutions are arrived at through people working together, in collaboration, after a great deal of thought and discussion. I am grateful for the committee’s work in the area and I very much look forward to hearing members’ views on the report this afternoon.

I call Jamie Greene. You have a generous five minutes, Mr Greene.

15:58  

Thank you, Presiding Officer. For many months, I have sat on the Rural Economy and Connectivity Committee and have listened to a range of evidence on the future of crofting. Although of the 20,500 crofts in Scotland, only one is in my region, it has become clear to me that the current framework of legislation is not fit for purpose.

The Scottish Conservatives welcome the REC Committee’s report—in particular, measures that are set out that would support new entrants to the industry. I am also encouraged that NFU Scotland has welcomed the report. We want an overhaul of the existing framework that not only simplifies the legislation but addresses what crofting really is in 21st century Scotland.

Crofting has been part of the fabric of Scotland’s rural economy and way of life for centuries, and although the economic need for such a localised and self-sustaining way of life has reduced, it is important to preserve that unique way of farming. In my view, however, preservation must also mean modernisation. Successive Governments have tinkered around the edges of the law, but the plethora of legislation that applies to crofting is mind-boggling. Evidence that the committee took on the status quo made it clear that the situation is nothing short of a legal minefield.

If Parliament is serious about developing a long-lasting solution to a century-old debate, we should be bold and we should not be content with any bill that would create more red tape or cause any more confusion. Historically, Administrations have fallen into the trap of topping up legislation in order to fill in gaps. Much has changed in respect of ownership, registration, mediation, common grazings, mapping, financing and the CAP over the years; there is a complicated regulatory environment. There is also a difficult trading environment.

It is a very passionate debate. The very nature of our crofting communities is that they are small, character led, and lack no shortage of points of view and opinions. Whatever those views are, our crofters need to know that the Government and Parliament are on their side. The aim of nurturing and supporting new talent, new entrants and young farmers must be at the heart of what we do.

The committee’s report summarises things well. It says:

“there is a need to move away from the piecemeal process of legislative development which has seen several crofting acts being passed in recent years.”

As a Parliament, we have choices ahead relating to consolidation, simplification, modernisation, a new bill and a clean slate. I will not suggest today which of those options is the best course of action: greater minds will deal with that. The point that I want to make is that clear policy and strategy—not legislation—must come first. The debate should be about shaping the future of crofting, not about dealing with the problems of its past. The average age of a crofter is 59. It is absolutely vital that we shape a system and, therefore, legislation around what modern crofting is all about.

The Crofting Commission’s Colin Kennedy highlighted that, of the 44 tenancies that have been terminated in the past couple of years, 30 crofts are still lying vacant. Access to finance is one of the main barriers to entry; a person cannot get a mortgage for something that they will not own. Donald MacKinnon of the Scottish Crofting Federation young crofters group gave testimony on that to us. He stated that access to neglected crofts being eased could attract new entrants and young crofters to the industry. Crofting policy will need to address how we can open up crofting and make it a viable option for new farmers.

As the committee has recommended, we need to address the structure of the Crofting Commission. Sir Crispin Agnew told the committee that the tribunal aspect of the commissioners should be removed. Should commissioners be appointed or elected? Do they represent the interests of their regional constituencies or the interests of the wider cause? Should the commission take back responsibility for crofting development? There are many questions to be answered.

The impetus is now for the Scottish Government to produce a clear set of modern crofting policies. In doing so, it must first and foremost address the outcomes of the sump report. However, legislation is not the only way to address many issues; we should not wait for new legislation before we take action. In the previous parliamentary session, the crofting legislation stakeholder consultation group recommended that nine high-priority issues should be addressed before the end of session 4. Have they been addressed? If not, why not?

In summary, crofting legislation is crying out for simplification, and crofters are crying out for clarification. The groundhog days of piecemeal legislation simply must end. My message is simple: now is not the time for tinkering; now is the time to be bold. If the Scottish Government comes forward with a sensible strategy, the Scottish Conservatives will support it. In the meantime, every day that passes is another missed opportunity to help our crofters.

16:03  

Crofting has developed over the years since the first crofting legislation, and it now reflects what is required by each distinct community. In some cases, the croft is simply a house site with a little land for some livestock or vegetable growing; in others, it is a working farm that provides a livelihood for a family.

Governance also differs between areas. In some communities, the grazings committee manages activity and crofters work collaboratively. In other areas, there is little or no collaboration, and the croft is viewed as someone’s private land to farm in any way that they wish. Therefore, when we are considering legislation, we should remember that any small change can have dire unintended consequences for people. That is the challenge with new crofting law.

The Scottish Government legislated in 2010 to change crofting law, but it rushed the bill through at the end of a parliamentary session and did not listen to concerns about unintended consequences. As a result, the 2010 act created more problems than it solved. The Scottish Government, to give it its due, has recognised that, and it has announced that it will introduce crofting legislation in the current session of Parliament. However, the Government has not indicated, nor has the cabinet secretary indicated today, what form the new legislation will take.

Will it right the wrongs of the 2010 act and use the sump as a guide to put right the pressing problems that the previous legislation created? The sump is a list of issues that have been put together by crofting lawyers and specialists that highlights the problems with crofting law as it stands. Some of those issues simply require tidying up, whereas others need urgent attention because they are preventing crofters from doing what they need to do to secure their homes and livelihoods.

Will the new legislation simply consolidate the current law in one act while changing nothing? Consolidation has been called for because the original act has been amended many times, and many of the problems arise because the various pieces of legislation do not fit well together.

The third option is to start from basic principles and create a new crofting act, which is what the committee has decided, on balance, to support. However, that is not without its challenges. As I said, crofting has evolved differently among the crofting counties. For the most part, my constituents value their own form of crofting and the way it works in their area.

Different challenges need to be addressed in different areas. For example, some areas are pressured because land values are high and holiday homes are sought after. Crofts have been allowed to fall into disrepair where the croft house has been purchased at a price that was way above the pocket of local people, but the land was not required.

In other areas, work is hard to come by and people have been driven away from their croft to seek a livelihood elsewhere. They have kept their croft and the family home; leaving was not their choice and they long to return. Meanwhile, those crofts are either sublet informally or worked by a cousin or friend, and the house sits empty other than at holiday times. Those are the people who are now being pursued over absenteeism. They feel that they are being unfairly treated—first, because they have been let down by the lack of provision for the local economy, which has forced them out, and secondly, because they are now viewed as a problem for holding on to what they see as their heritage. In truth, they are unlikely to be able to return until they retire, and at that stage they will probably not want to be large-scale crofters. Surely there is a way to meet their aspirations to return home and to have access to a little land, while allowing the bulk of the croft area to be let to a local person, a new family or a young crofter.

None of that can be dealt with by broad-brush legislation. Every person and every family is different, and each situation will therefore require a personalised solution. The legislation may need to be stripped back to the basics: security of tenure, security of inheritance and a right to buy. In return for all that, the crofter would be expected to work their croft and ensure that it does not fall into disrepair. Localities could be allowed to look at enhancing the legislation with local regulations that would work with the community to tackle particular local issues and to build the economy, thereby leading to greater use of crofting land.

Crofting has been successful in slowing down depopulation in many crofting counties. That is what it was set up to do, and that is what we must protect and enhance. We need to fight depopulation and recognise that people need to be supported to live and work in crofting communities. Crofting alone will not halt depopulation, but it is an economic driver. It is essential that we protect crofting and ensure that the legislation is not a barrier but a driver for repopulation of the crofting counties.

16:09  

Bu mhath leam taing a thoirt dha na clàrcan agus a h-uile duine eile airson dèanamh cinnteach gu bheil na pàirtean as cudromaiche den aithisg anns a’ Ghàidhlig, cànan a’ mhòr chuid de na sgìrean croitearachd.

For the Anglophones and those who cannot interpret my mispronounced Gaelic, I have just thanked our clerks and others for ensuring that key parts of the report have been rendered in the native language of most of our crofting areas—in Gaelic, in other words.

We should remember that the first act—the Crofters Holdings (Scotland) Act 1886—required that one of the three commissioners could speak Gaelic and, recognising the legal complexities, that one of the commissioners be a Scottish advocate of at least 10 years’ standing.

Crofting law is, indeed, a complex area of law that draws on rural agricultural tradition, court cases, and many generations of parliamentary consideration and legislation. It is, to be frank, a pretty substantial guddle. We must not let the complexity and contentious nature of many of the issues in crofting be another reason for moving forward only by limiting the Government’s response to cherry-picking some of the easy bits. The sump report to which Jamie Greene and Rhoda Grant referred at least gives an opportunity for action in areas in which agreement is as complete as it is likely to be.

However, we also need some big-picture stuff. I will start with governance and oversight. My personal hand sits on the matter to an extent, because I was the minister who signed the Crofting Commission (Elections) (Scotland) Regulations 2011. Paragraph 7(5)(a) of schedule 1 to the Crofting Reform (Scotland) Act 2010 proves that we can be radical. It provides for the election to the Crofting Commission of people who are aged 16 or over, and follows a similar provision in the Health Boards (Membership and Elections) (Scotland) Act 2009. We broke new ground in empowering 16 and 17-year-olds in that way. I do not believe that similar has been done in legislation anywhere else in the UK.

The fundamental question is this: what are members of the commission for? They are not there to manage the work of officials but are, absolutely, there to hold them to account and to set policy. In doing so, they are there to represent the collective interests of all crofters and people in crofting communities. It should not be a surprise that responsibility must extend beyond crofters; in fact, one does not even have to be a crofter to stand for election to the commission—albeit that a non-crofter must be nominated by a crofter.

Elected members are there because of votes in the six crofting constituencies, but it is vital that members of the commission reach collective decisions and then take them forward unanimously. It is not useful if members of the commission think that they are there simply to represent the area that elects them. That is a substantial challenge, but I hope that members of the commission will rise to it.

As other members have said, we must complete proper and accurate mapping of crofts and shared grazings. As Minister for Transport, Infrastructure and Climate Change, I was party to a dispute about the boundary between crofting land and Benbecula airport. The diagram in the register of sasines was pretty small and the boundary line was marked with a Chinagraph pencil. When it was scaled up, the line was 100m wide, so we can begin to understand where the dispute came from. It was a recipe for argument.

We have also heard that we must simplify the administration of common grazings and create a better structure, and I support that.

The 1886 act recognised the rights of crofters—it opens on security of tenure—and brought to an end forced ejection of people from land that they had occupied for generations. It ended the clearances, but life on the croft remains somewhat precarious. I look forward to the Government’s planned legislation, and trust that the committee’s work will helpfully augment the Government’s and others’ research.

16:14  

I declare an interest as a landowner and a farmer, albeit that I have no crofting interests. I welcome this debate on the review of priorities for crofting law reform and note that, in common with many less favoured area farmers, most crofters are struggling to make ends meet in the current financial climate. The recently published net farm income figures are further proof that what historically was a difficult way of life has in recent times become still more difficult and financially unrewarding.

However, I have long held the view that crofting communities are a vital part of Scottish life and culture. Crofters keep communities going where otherwise they would not exist and crofters should be supported wherever possible.

Others have noted at different times that crofting is an island in a sea of legislation. I was a member of the Rural Affairs and Environment Committee in session 3, which helped to create the Crofting Reform (Scotland) Act 2010 seven years ago. I regret to note that the problems that were highlighted in the Rural Economy and Connectivity Committee’s recent report are depressingly similar to the ones that were identified almost 10 years ago in the Shucksmith report and more recently in the Scotland’s Rural College report of 2014.

I know how much went into the 2010 act and I support the view that, if that act and the subsequent Crofting (Amendment) (Scotland) Act 2013 are regarded as not being fit for purpose, Parliament should endeavour to improve on the legislation. However, I remain to be convinced that a completely new bill is required, as has been suggested. The 2010 act has hardly had time to bed in, never mind to be regarded as not fit for purpose. As Rhoda Grant said, many of the problems that are associated with crofting are about not so much the legislation as the viability of crofting and the commitment to it as a way of life.

Issues of succession and viability remain the biggest threats to the future of crofting, and no amount of legislation will overcome those fundamental and structural problems. The creation of new legislation would not address most of the barriers to entry and occupancy of crofts, which include the cost of purchasing assignations, the lack of knowledge of vacant crofts, the difficulty in obtaining finance to buy assignations, the high capital cost of establishing enterprises, the cost of returning neglected crofts to use and the lack of financial return from crofting.

However, if the need for change is perceived, the Rural Economy and Connectivity Committee should undertake post-legislative scrutiny of the 2010 act as a precursor to further action. If post-legislative scrutiny of the act finds areas that are universally—I stress the word “universally”—agreed to be needing improvement, consideration should be given to achieving that through secondary legislation, if powers exist in the act to make statutory instruments, or even through clearer guidance, if that is appropriate. Failing that, further amending primary legislation could be considered, but not until it becomes clear that it is absolutely necessary or that it will make a fundamental difference to the problems facing crofting, most of which are not a function of legislation.

Some of the changes under the 2010 act were foreseen as taking perhaps a generation to make a difference and were delivered after much consultation with leading crofting and legal practitioners. Delivering legislation that is agreed on by all is never easy, but amendment of the legislation should be considered if a clear and unequivocal need can be identified and if a consensus can be built around it.

I congratulate the committee and its clerks on the production of the report. Given our Parliament’s track record on passing crofting legislation, I am certain that the Government will approach the creation of new legislation with enthusiasm and an open mind, but also with extreme caution, as a huge amount of parliamentary time and resource has been spent on crofting legislation since our Parliament came into existence 18 years ago. I wish the Government and the committee well in whatever they see as the appropriate way forward.

16:19  

As the committee convener said, the Rural Economy and Connectivity Committee took on the review when there was a lot of controversy, particularly about grazing committees, so it was a timely piece of work. It was also a clear signal from the committee of the priority that it places on crofting.

It is important to say that the report is just part of a process, as has been evident from some of the contributions that we have heard. The report said that

“The committee considers ... that the Scottish Government’s proposed bill provides ... a legislative platform which fits with the reality of modern crofting practices”.

That is true but, as we have heard, there is a complex mesh of situations. Crofting epitomises the reality of the challenges that rural communities face. Like many others, I thank the witnesses, who helped us to have an informed debate. As ever, it is better to have the participation of people who will be directly affected, which was helpful.

The report talks about having a sustainable crofting sector. That does not stand in isolation from the future of all our rural communities. There are questions about the role that crofting can and should play in the future of our communities. Depopulation has been mentioned and, although it is primarily Argyll and Bute that is affected by that, each of the affected local authority areas has places where there has been depopulation and where the age profile is such that the community cannot be considered to be stable in the long term.

The report says that the bill should be

“relevant to the needs and aspirations of crofters”,

and the cabinet secretary referred to the importance of housing, which is key to everything. I would be surprised if housing was not a significant part, if not the largest part, of the workload of any member of the Parliament. It is key in any community, and there are particular challenges in a rural community.

A press release from the cabinet secretary said that £16 million, rather than £15 million, of grant payments had been made, in addition to the £2 million for the coming year, but anyway, the figure was lots of millions of pounds, which is all welcome. The press release said that that was about

“Attracting people, particularly young families, to our most remote and rural communities”,

which

“is essential for their long-term sustainability.”

That is key to everything and I commend the investment that goes into that.

People have talked about the report’s reference to moving away from a piecemeal approach to legislation. I pose the question: what is the purpose of legislation? It is not to tie us down in endless arguments—and we certainly know about endless legislation on crofting. Legislation is intended to facilitate the delivery of whatever the subject of the legislation is.

The committee’s view is that the proposed bill should be comprehensive. There have been arguments about consolidation versus new legislation, but I think that we all agree that the bill should not be seen as an opportunity to kick the issue into the long grass. The committee has addressed a number of current issues and, as many people have said, we have been here before with the Shucksmith report.

The committee report says that

“The recommendations contained in ... Sump ... should form the starting point for further consideration of legislative reform proposals.”

It also says that

“the new legislation should be accompanied by comprehensive and accessible guidance documents to allow all of those involved in crofting to more easily understand and implement the provisions.”

I absolutely agree with that, but whether it is lots of legislation and little guidance or modest legislation and lots of guidance, the reality is that crofters do not want reams of paper—they want clarity about the direction. We want that clarity of direction for all our rural communities and, of course, Brexit has to be figured into that, because of the sums of money that come from Europe.

We want sufficient time for scrutiny, because it is important that it is done right but, as a number of members have said, legislation is not needed for everything. We are keen that issues that do not require legislation do not get lost in the process. The cabinet secretary mentioned the national development plan; it is obvious that a longer-term plan is key.

We heard frustrations about the role that HIE plays in crofting development; perhaps there is a misunderstanding. In the chamber, we all talk about the Christie principles of public bodies working together. The responsibility is not necessarily down to any one agency; there has to be collaboration across local authorities, Government agencies and agencies that are directly involved in crofting.

In view of the time, I will leave it there.

16:24  

I first heard the definition of a croft from Charles Kennedy, who told me that a croft is a piece of land surrounded by legislation. That was perhaps not an original definition, but it described the issue exactly. This is therefore a welcome opportunity to debate the future of crofting in advance of the legislation that we expect from the Scottish Government later in the parliamentary session.

That definition explains why I am in favour of a clean-slate approach to the legislation. John Finnie just spoke about the need for clarity. I hope that the Scottish Government does not decide to add a piece of legislation to the vast amount that already covers crofting. I take it from the evidence that we have heard that it would be far better to have a clean slate so that we get clarity for the future.

Committee members have worked well together to produce a unanimous report and I hope that the evidence that we have received will help to inform the Scottish Government of the best way to proceed. Everyone on the committee felt—the phrases have been repeated and I make no apology for repeating them—that it was fundamentally important for the proposed bill to fit the reality of modern crofting practices, be relevant to crofters’ needs and aspirations and aim to deliver a sustainable crofting sector. If we get that right, it will have dramatic importance for the crofting community.

The committee members all agreed on the need to move away from piecemeal legislative development. The Liberal Democrats believe that the proposed bill should be comprehensive and seek to address all the issues. As the committee made clear in the report, not everything that needs to be reformed requires legislation. The reforms are urgent and the Scottish Government needs to take action as soon as possible.

Many of the issues can be found in the so-called sump report, which is reproduced at page 29 of the committee’s report. There is general agreement that the Government needs to tackle those issues directly and relatively quickly. The committee considered many areas that are causing problems or in need of reform. I have a list of them and we could debate each one, but we do not have time to do that.

The first issue is absenteeism and the neglect of crofts. It is heartbreaking to many people to see absentee crofts, which are not used properly.

The second issue is support for new entrants to crofting, particularly in addressing the difficulties of obtaining a mortgage on rented land, which the cabinet secretary mentioned. He would get support from across the chamber if that issue could be addressed reasonably quickly.

Owner-occupied crofts are also an issue. That might sound strange, but the issue is whether they are crofts.

Another issue is common grazings. We found that the law on them is not being upheld. It is interesting to pass legislation but, if we do that, we need to uphold it.

Other issues concern the crofting register and the role of the elected members on the Crofting Commission, which has been mentioned a lot. Edward Mountain mentioned the role of Highlands and Islands Enterprise in crofting development.

We also discussed small landholdings in places other than the crofting counties—Jamie Greene mentioned that he has one in his region—and the relationship that they may have with crofting. That is important. What is a croft? Is the decision simply down to geographical location?

If we had time, we could debate all those issues, but I realise that I am running out of time. Suffice it to say that the 11 members of the Rural Economy and Connectivity Committee have worked together constructively to produce a report that I hope that the cabinet secretary will take on board. The report is constructive and well thought through. As a result of that work, the cabinet secretary and his civil service team will know exactly where committee members are coming from when, in due course, the committee examines the forthcoming crofting bill.

16:29  

Crofting is a key part of Scotland’s heritage and it continues to be key in our national use of land. I am new to crofting legislation, which is clearly a complex area, as others have said. However, it is worth saying that many people in the cities and in the Lowlands more generally feel a strong commitment to and a warmth towards crofting, which takes into account the struggles that crofters have faced over the years to achieve many of the rights that they have today.

As Rhoda Grant said, one of the purposes of crofting is to maintain the population in remote rural areas. That is a concern not only for the people of those areas and for Highland Council or Western Isles Council; it is a national concern. Cities are great—I love living in and representing a city—but Scotland cannot consist only of cities. The nation suffers if we do not have a strong and thriving population in the Highlands and Islands.

One of the key questions that the committee faced is whether there should be speedy tidying-up legislation that focuses on the sump report or whether we should recommend moving straight to major consolidation and simplification. Mike Rumbles used words such as “clean slate” and “clarity”, but John Scott disagreed with moving to that approach, at least in the short term.

The committee realised that the kind of legislation that we recommended could be controversial and, at one stage, we thought of sidestepping the issue and not coming to an agreement. However, surprisingly, as we listened to the evidence, we each became independently convinced—and, therefore, convinced as a committee—that we could make one recommendation. It is contained in the second bullet point of the summary, which says:

“The Committee is also of the view that there is a need to move away from the piecemeal process of legislative development which has seen several crofting acts being passed in recent years. The proposed bill should therefore be comprehensive and seek to address as many of the issues identified … as is possible.”

We disagreed about the word “piecemeal”, which Mike Rumbles liked. A previous draft used the word “iterative”, which I preferred. However, we will not lose too much sleep over that.

Linked to the question of the type of legislation has been the question of timescale, which has been mentioned. The fifth bullet point in the summary says:

“The Committee calls on the Scottish Government to commit to ensuring that the bill timetable will be structured in a manner which will allow sufficient time for thorough and detailed Parliamentary scrutiny; and that the passage of the bill is completed comfortably before the end of the current parliamentary session.”

If I understood the cabinet secretary correctly, he committed to that, which I welcome.

We believe that it should be possible to get a major piece of legislation on crofting through Parliament this session, which means that it should be in place by May 2021 and that it should be well through the process by the summer of 2020, which is not that far away. We do not want to be rushing to deal with a major piece of legislation in the last year of the session, as was the case with the Land Reform (Scotland) Act 2016.

The committee agreed that there needs to be a clear statement on crofting policy. If there is such an overarching policy, it will help to guide us in considering the difficult areas, such as whether owner-occupiers of crofts should be treated in the same way as those who rent are.

We spent time considering common grazings, and points included the need for mapping to be completed. Nowadays, there is a wider range of options for the use of such land, such as wind farms, but the current legislation did not anticipate that when it was written. As a relative newcomer to crofting legislation, I, like others, may struggle to understand why the croft and the related share in the common grazing were ever allowed to be separated from each other.

The committee considered whether responsibility for crofting development should be transferred away from HIE. The jury still seems to be out on that one, but part of me wonders whether crofting, which has such a traditional route to it, fits well with an agency such as HIE, which perhaps emphasises other matters.

I look forward very much to the bill when it comes and to engaging more in the detail of crofting at that time. I re-emphasise that crofting and our remote areas are extremely important to our cities, to Glasgow and to the whole of Scotland.

16:34  

This short and useful debate has covered many of the issues that the committee looked at. We all smile when we hear that a croft is defined as a small piece of land surrounded by legislation, but that was proved to us as the committee started to look at the legislation and consider what we were going to do. Crofting needs legislation to protect it, but that legislation can be simple and it can be greatly simplified without damaging crofting. It needs to make sense to crofters and it needs to be easily understood. If we achieve that, we might put some lawyers out of business, but it would be to the benefit of crofting.

Edward Mountain talked about annual reports, and I want to make a point about that. When the 2010 act was going through, many of us were concerned about the reporting functions and the requirement for annual reports that was put on grazings committees, basically making them police their colleagues. The clerk of the grazings committee is elected by the shareholders of the common grazings, and the committee was supposed to report back on the misdemeanours of the shareholders who had elected them to that position. We warned about that and our warning has been borne out, because I do not think that one annual report has been received from a grazings committee. I do not say that something must be done about that; I say that the provision must be removed because it is wrong. We said that it was wrong in the first place and that has proved to be the case, so it needs to go. People should not have to police their neighbours.

Will Rhoda Grant take an intervention?

I will.

Does Rhoda Grant accept that—

Excuse me. I call John Scott.

Forgive me, Presiding Officer.

Does Rhoda Grant accept that the intention at that time was nothing other than to encourage active crofting, and that that has not yet happened?

I remind members that, for the purposes of the Official Report, we need to say who is about to speak. I call Rhoda Grant.

Thank you, Presiding Officer. John Scott should be aware of that, given his previous role, but he may have forgotten that he should wait until he is announced by the Presiding Officer.

I agree with John Scott. That was the reason for the provision, but the provision has not made that happen. As has been borne out, we still have crofts that are not worked and we have no way of reporting on them or of encouraging crofters to do that. The point that I was making was that that provision in the legislation has not worked.

A number of speakers have talked about the need for a strategy, and the committee was agreed on that. John Finnie said that a strategy must fit the needs and aspirations of crofters, and that must be its aim. Consultation is needed to ensure that it is right. We need to look at the economics of crofting, as John Scott said. We must discuss the cost of buying and improving land, but also the lack of financial return from crofting. It is a long-standing problem, not just for crofting but for all land-based industries, as we have read in the press lately. We need to look at how land-based industries work economically and ensure that they can provide an income, because I have heard a lot of crofters say that at the moment they are involved in a very expensive hobby, not economic generation. We need to ensure that there is a return on crofting in order to keep people in the glens.

Many speakers have mentioned the development function that went to Highlands and Islands Enterprise, but that was crofting community development. What the Crofting Commission did previously was develop individual crofting businesses and grazings committee businesses, encouraging people to take on different projects to make their crofts more viable. That is the bit that has gone missing and we need to ensure that crofters have business development support.

A number of other issues have been raised. Jamie Greene said that we need an action plan on the sump report and on what needs legislation and what can be dealt with through subordinate legislation or ministerial direction. That would be a good place to start to deal with some of the issues that are coming forward, especially the more urgent ones. The same is true of grazings mapping. Will there be more funding for the Crofting Commission to get that completed? Everyone who spoke to the committee said that it is necessary and needed to be finished. Most crucial is the timing of the legislation. If there is to be new legislation it must be introduced in time to allow us to go out and consult again, rather than passing legislation and hoping for the best.

We must build consensus on the changes that are required. That consensus should include not just those who speak the loudest, but crofters who go quietly about their business, trying to make a living for themselves. We need to bear them in mind.

I thank everybody who contributed to the committee’s report.

16:40  

As a landowner and farmer, I refer members to my entry in the register of members’ interests. I welcome the debate, which has been useful, and I am delighted to be speaking in it.

Crofting is not just a vital part of our rural economy, but an important part of Scotland’s heritage, particularly in the west of Scotland and the Highlands and Islands. With over 20,000 crofts registered with the Crofting Commission, it is clear that a significant number of crofters will be waiting to see what the Scottish Government does on the matter.

To put it bluntly—this is a personal opinion—we cannot duck the question of serious reform any longer. I have to disagree with my colleague John Scott on that and agree with Mike Rumbles.

Hooray!

It does sometimes happen, Mike.

I urge the Scottish Government to come forward with a comprehensive bill to address the maximum number of community concerns in a new, simplified format. In short, we need to start with a clean sheet and draw up simple and clear rules for the governance of crofting that the layman can understand without the need for expensive lawyers to interpret them.

Over the years, there has been amendment after amendment to crofting law that has created only more bureaucracy and confusion. The committee heard Sir Crispin Agnew say:

“The crofting legislation is not fit for purpose because it does not have an underlying policy theme that is appropriate to the present day and age.”—[Official Report, Rural Economy and Connectivity Committee, 9 November 2016; c 1.]

I could not agree more and I welcome the cabinet secretary’s promise that a new bill will be delivered during this parliamentary session.

There are lots of problems right now. For example, the cost of registration and notification was highlighted by Donald MacKinnon. He said:

“As well as being overly bureaucratic, it represents a huge amount of money coming out of crofting”.—[Official Report, Rural Economy and Connectivity Committee, 2 November 2016; c 11.]

Edward Mountain referred to that, too.

As the Rural Economy and Connectivity Committee has set out, we also need to tackle the mapping of the common grazings. That exercise has stopped due to lack of funds and I hope that ministers will give it the high priority and funding that it deserves, as we cannot make progress on crofting without accurate mapping.

We need to consider whether commissioners should be appointed rather than elected, which was brought up during our evidence sessions. There is also the question whether the commission should be responsible for crofting development, rather than HIE. Edward Mountain and John Mason both referred to that as something that we heard about during committee meetings.

We face similar challenges in crofting to those that we face with farming as a whole, namely, a lack of new entrants and a lack of profitability. With crofts tending to be smaller and crofters being more dependent on CAP payments than non-crofters, getting the new legal framework right will be incredibly important in securing a sustainable future for crofting.

In the interests of my constituents in the Highlands and Islands, I ask the member whether he still considers that crofters are “not real farmers”?

I can allow time for the intervention, Mr Chapman.

That was not very appropriate. I accept that crofters do a fantastic job in their own area.

The cabinet secretary outlined in detail some of the excellent grants that crofting areas receive, such as the croft house grant scheme, the bull hire scheme, LFASS moneys and so on.

Donald MacKinnon of the Scottish Crofting Federation young crofters group raised the prospect of allowing increased access to neglected crofts, which would potentially provide opportunities for new entrants and young crofters. Jamie Greene also highlighted that issue. Furthermore, Mr MacKinnon pointed out the opportunities from Brexit. Indeed, with more focus on environmental issues post-Brexit, there could be better ways to support crofting. There is, no doubt, much to be said about such an idea, and I hope that the Scottish Government will look closely at it.

I am in no doubt that we need a clean slate for crofting. That is doubly important as we prepare to leave the European Union. On leaving the CAP, we will have the opportunity to include specific measures to support crofting under our own system. We need to grasp that opportunity with both hands and it is incumbent on every MSP here to help to deliver it to our crofting communities.

16:45  

I thank the committee and the clerks for producing an excellent report, and committee members for their contributions today. It has been an excellent, if short debate. Many interesting issues have been raised, and I will touch on them during my speech.

John Mason spoke in the debate. I represent Glasgow Pollok and he represents another Glasgow constituency. As in his area, there is not much by way of crofting in my constituency. It was therefore incredibly important, when I was first appointed as the Minister for Transport and the Islands, that during my islands tour I visited crofts and spoke to crofters to hear about the issues that affect them. Many, if not all, of the issues that they raised have been raised in this debate.

Crofting is so important to the long-term sustainability of many communities, but that is particularly true in the islands, where depopulation is an issue—a topic that Rhoda Grant touched on. The depopulation of our islands particularly affects the Western Isles, although it affects many other island communities, too. There are many reasons for that, including the availability of housing, education, jobs and healthcare, but, undoubtedly, crofting could provide a solution to reverse some of the depopulation.

The debate highlights the importance that we all place on crofting in the Highlands and Islands and our collective desire to make that a success. From the committee’s recommendations and the discussions today, we see that a number of issues need to be tackled and there is no agreement on how to do that. We will, of course, take as consensual an approach as we possibly can and we will try to take the Parliament with us once we get to a legislative solution. Importantly, however, the issue is not just about legislation.

On that point about differences of opinion, the debate has helped to demonstrate what the cabinet secretary, members and I have found when we speak to crofters: they have a multitude of opinions on how to tackle these important issues. We have seen that today, to the extent that Peter Chapman disowned his own colleague and agreed with Mike Rumbles. That illustrates the many differences of opinion that there are across the chamber. Some members have asked for a clean-slate approach to new legislation, some have suggested that we should add to existing legislation and others have suggested that we should perhaps tweak existing legislation. We have to take time to consider the options. Importantly, as members have said, we should come forward with the policy intent and the legislation should follow thereafter.

We have heard about the importance of crofting to rural Scotland and the special place that it has for our heritage. Issues such as common grazings, the right to buy, owner occupation, absenteeism, neglect, and future support for crofting are all important aspects of crofting policy. I will touch on one or two of those aspects.

Support for new entrants was a common theme mentioned by almost every single member. With that new lifeblood come innovation, impetus and energy for the sector. I thank the committee for its recommendations on that area. As members have noted, work has begun in the crofting stakeholder forum to identify what a new entrants scheme might look like. Of course, some grants and other support are already available for new entrants and crofting start-ups.

It is important to note that absenteeism and neglect are two separate issues. The terms are often used synonymously, but it would be wrong for us to do so. Absenteeism and neglect will be looked at in new legislation. Our officials are engaging in great detail with members of the forum and, as members have mentioned, each of those issues is very complex. When we propose solutions, they will, of course, have to be compliant with domestic and, potentially, European legislation as well.

Addressing those issues is not all about new legislation. In parallel to examining the issues that will require new crofting law, we must see what we can do now in relation to current crofting policy, without the need for legislative change. John Finnie’s point on that was important: what does not require legislation should not be lost while we firmly focus on what legislative solutions we can bring forward. I will not go through the entire list of all the things that we are doing that are outwith legislation, but it is worth reiterating that we have the croft house grant scheme, the less favoured area scheme that was mentioned by the cabinet secretary, the crofting agricultural grant scheme, the crofting cattle improvement scheme, the Scottish rural development programme, the young farmers start-up grant, the new entrants start-up grant and the crofters and smallholders skill boost 2016. There is also veterinary support available for crofters and support from the farm advisory service. It would be ungenerous to suggest that the Government is not providing support to our crofters, and it should be understood that we are looking at how we can go further.

The questions and issues raised do not come with simple solutions and they will require time. I urge patience and some members have said that they understand that. The committee has said that we should start from a position of a clear, overarching crofting policy, which is an eminently sensible suggestion. I agree that we need clarity on the future of crofting. Work such as that being undertaken by the national development plan for crofting will help us to achieve that.

There has been little reference to community-owned crofting areas. Does the minister consider that they continue to be a valuable part of crofting ownership and operation?

The short answer is yes. Some members took a bit of aim at Highlands and Islands Enterprise for not getting involved, but HIE has been instrumental in community land ownership and the point that Mr Stevenson has made.

Rhoda Grant rose—

I am sorry, but there is no more time.

My apologies. I wind up by saying that our engagement with stakeholders will continue—with landowners, NFU Scotland and young crofters. The sump report that almost every member mentioned is a very good report that we will examine in greater detail as we move forward.

From our discussions today, a wide range of action may be undertaken in support of the future of crofting. I look forward to engaging with crofters and crofting communities, the Rural Economy and Connectivity Committee and the Parliament through the legislative process.

I call Gail Ross to close the debate on behalf of the committee, the name of which I cannot remember off the top of my head—the Rural Economy and Connectivity Committee. Please take us up to 5 o’clock.

16:53  

Thank you, Presiding Officer. I will try my best to make sense of all my scribbles.

As the convener stated in his opening remarks, the committee has been working towards the report and subsequent debate for a number of months and has taken evidence from numerous expert witnesses. I record my thanks to them, my fellow committee members, the clerks and the team from the Scottish Parliament information centre. We have spent a great deal of time on a complex and technical area, and the evidence that we have received has helped to inform the report and today’s debate.

The report had three main objectives: to inform the activity undertaken by stakeholders in the Scottish Government to work towards the reform of crofting law; to allow the committee to assess the priority action identified so far; and to make any recommendations on action necessary to progress that reform process.

We also note the 57 issues in the crofting law sump, which was published by the crofting law group in 2014; a lot of those issues are priorities for the sector. We stated that those issues should underpin any future legislation. Many members have mentioned that there are some issues that can be resolved without legislation and that they must be addressed, and those are the ones in the sump report that we talked about. Rhoda Grant suggested that that would be a good place to start.

This has been an interesting and worthwhile, if short, debate on an issue that is of huge significance to our crofting communities and to rural Scotland more generally. The convener, Edward Mountain, started off by suggesting the need for new crofting policy. He is absolutely correct that legislation that was made in the 1800s is probably not relevant to crofting today. Several members—in fact, most of those who spoke in the debate, including Jamie Greene, Rhoda Grant, John Finnie and John Mason—asked the question that the committee asked: do we build on what is already there, or do we start again? I note that there was some division on what we should do.

I am sitting beside Gail Ross and I could probably ask her about this later, but it might be worth getting the matter on the record. In the south-west of Scotland, we have 104 smallholdings, as opposed to crofts. I am curious to know the committee’s view on the suggestion that crofting and smallholding legislation should be combined.

There are very differing opinions on whether the legislation should be combined. The committee took no opinion on that—quite sensibly, I think—and we will leave the matter to wider consultation.

John Scott spoke about the 2010 legislation, which he helped to put together. His opinion is that it needs time to bed in and that there is only a perceived need for change. However, most—if not all—of the witnesses who we spoke to during the evidence sessions were of the opinion that there needs to be some change. We talked about whether we should start with a clean slate or build on what is already there and came to the conclusion that the bill should be comprehensive and that we should try, as far as we can, to start again.

Jamie Greene talked about what crofting is in the 21st century, and Rhoda Grant spoke about the need for a definition. She also spoke about the divisions that exist even within the crofting community about the definition of crofting. I think that it would be a good place to start if we got the definition, decided what we want crofting to do for us in this day and age and moved on from there.

Jamie Greene used the word “mind-boggling” with regard to the legislation. When our committee began the process, I was a bit overwhelmed by the amount of legislation and what it all meant, so it was interesting to take evidence from law professors who, although they were not confused, agreed that it was a bit of a minefield—Jamie Greene used that word, too.

Jamie Greene spoke about new entrants—as did Mike Rumbles—and their access to mortgages and finance. That is certainly a barrier to new entrants and something that the cabinet secretary has said he will give due consideration to.

Stewart Stevenson gave a fantastic introduction in Gaelic. I was so engrossed that I nearly forgot to take notes. Whereas Jamie Greene used the word “mind-boggling”, Stewart Stevenson said that crofting law is a boorach. I do not think that the committee would disagree with that. He gave us a good insight into the elections to the Crofting Commission and spoke about 16 and 17-year-olds being elected. He also laid out what the role of a crofting commissioner should be.

A few members, including Stewart Stevenson, made points about mapping. It is completely true that the thickness of a line on a map can make all the difference on the ground. We need to make sure that the mapping of common grazings, in particular, is completed.

City boy John Mason talked about land use and said that people in cities were sympathetic towards crofters, given the issue that they face, as did Humza Yousaf. Mr Mason made the valid point that a strong population in the Highlands and Islands benefits the whole of Scotland, which is fantastic. He also touched on the committee’s internal debate about what language to use. It is very important that the right words are chosen in such a report.

John Finnie spoke about housing and depopulation and considered the purpose of legislation. Mike Rumbles said that it is all very well for us to pass legislation, but that we must ensure that it is implemented. I think that we would all agree with that. I do not know whether I have managed to cover everyone who spoke; I hope that I have done.

As a committee, we hope that our report and the debate have been helpful in setting the scene for the huge amount of detailed work that lies ahead. We call on the Scottish Government to commit to ensuring that the timetable for the proposed new crofting bill will be structured to ensure that parliamentary scrutiny will be completed comfortably before the end of the current session. We must ensure that there is sufficient time for thorough and detailed parliamentary scrutiny of the bill.

We have a commitment from the Scottish Government to a national development plan for crofting. We must send the message that our crofting communities are valued and that we will support them.

I commend the committee’s report to the chamber.