Crofting consultation 2017: analysis report

Executive Summary

The Scottish Government’s public consultation on Crofting Legislation and Future Priorities for Crofting sought views on the form of legislative change that may be required and priorities for crofting in the future. The Scottish Government is committed to reviewing the modernisation of crofting law within this Parliamentary session, with this consultation helping shape any potential new Bill.

In total 122 responses were submitted. The majority of responses (74%) were submitted by individual members of the public. The remaining responses were received from groups or organisations.

Scottish Government’s Policy on Crofting

Respondents were relatively evenly divided on whether they agreed with the stated Scottish Government policy on crofting. A very small majority of all respondents (51%) did not agree. Overall, rather than calling for a fundamental change in policy, most of the responses focused on specific aspects of wording of the policy. Responses also highlighted the desire for a sustainable crofting sector, commenting on the importance of support received though the various mechanisms available.

There was some uncertainly expressed about the implications of leaving the EU and, in particular, about the levels of support that may be available to agriculture and crofting thereafter.

Crofting was described as core to sustaining vibrant communities and to maintaining cultural and linguistic assets.

Options for Legislative Change

When asked to indicate the most suitable way to proceed with any crofting law reform, the largest proportion of those answering (43%) preferred Option 4, a Bill setting out ‘new’ crofting law. Advantages identified in relation to this option included that it is the ‘clean sheet’ approach and could get rid of anomalies and loopholes in crofting law. However, there were some concerns that reaching consensus on a new Bill could be difficult and time consuming which may impact on the ability to deliver a Bill this parliament.

Option 2, a Bill amending existing legislation/pre-consolidation Bill, was the second most popular choice and was preferred by 24% of all those answering the question. Advantages identified in relation to this option were that it is a possible compromise option. It was felt that this option should be achievable within this parliament However, there were concerns that it is a complex option that would not resolve all outstanding issues and that there could be a call for further legislation in the future.

Option 1, a Consolidation Bill, and Option 3, a Bill amending existing legislation and restating crofting law, were favoured by 3% and 18% respectively of those answering the question.

Specific legislative priorities

The consultation asked about issues that are specifically related to crofting legislation and how it might be improved. The ideas presented related to either what is in current legislation (and can be reviewed) or what can be dealt with through a new Bill.

It should be noted that there was a diverse range of views about the best way forward each specific legislative priority and no clear consensus among respondents around preferred approaches. There were also occasions on which respondents appeared unaware of aspects of the current legislation and/or how it operates.

• Absenteeism, Misuse and Neglect: One of the most frequently made comments was that there is legislation in place to tackle absenteeism, misuse and neglect, but that the Crofting Commission does not take action and should be given the resources it needs to be more proactive. A number of respondents commented that support for crofters could help improve absenteeism, misuse and neglect. Examples of the type of support suggested included helping absent crofters to give up their tenancy and making allowances for people who have to live close to their work if their family can work on the croft in their absence.

• Assignation and Succession: Several respondents commented that the rules for crofters should be the same as for any other landholder. A number agreed with the Crofting Law Sump Report, which called for the issue of succession to be reviewed by a suitably qualified expert panel with understanding of crofting law and law of succession in Scots Law. A number of respondents highlighted the need ensure that whoever took on a croft had the ability to manage it.
• Common Grazings: Comments relating to Grazings Committees and their functions, including that Committees should be given a stronger role in developing townships. Others suggested abolishing Grazings Committees. Some respondents commented that there should be guidance from the Crofting Commission on the duties, responsibilities and powers of Grazings Committees.
• Crofting Commission Regulatory Functions and Processes: The two most frequently made comments in relation to the work of the Commission were that it lacks the resources to carry out its role as regulator effectively and that the crofting development role should be removed from Highland and Island Enterprise ( HIE) and returned to the Crofting Commission. Other comments related mainly to policy or administrative changes that may be taken forward without legislative change. These included the time taken to reach regulatory decisions being reduced and the Commission taking on the development role.
• Crofting Registration: The most frequently raised issue, albeit not raised by a majority of respondents, was registration costs, and more specifically the opportunity to reduce them, with the next most common issue being that the Crofting Registration process could be simplified or streamlined. Suggestions as to how this could be done included being able to submit all materials online and reducing the advertising requirements. Respondents also identified opportunities around the mapping of crofting boundaries, including that the approach taken should be streamlined.
• Owner Occupation: The most frequently made suggestion, albeit not raised by a majority of respondents, was that owner occupier crofters should have a right to decroft their property if they choose. A different perspective was that if a croft is purchased it should automatically be removed from crofting tenure. Others had concerns about removing owner-occupied crofts from the crofting tenure. It was suggested that this approach would, in all likelihood, herald the beginning of the end of the crofting system and that the use of right to buy provisions should be discouraged or they should be removed from statute.
• Standard Securities: The most frequently made comment was that granting a Standard Security over a croft tenancy would give crofters the ability to raise finance without having to decroft. It was suggested that this, in turn, could result in a reduction in decrofting. There were some concerns about the potential for default on loans and the control of crofts passing to financial institutions.

Ordering of priorities

Absenteeism, Misuse and Neglect emerged as the highest priority, followed very closely by Crofting Commission Regulatory Functions and Processes. Standard Securities had the lowest relative priority. However, all of the priorities set out were seen as a priority by a significant proportion of respondents.

Some respondents commented on the overall approach as opposed to specific alternative priorities. For example, it was suggested that rather than concentrating on specific topics, the focus should be on incorporating the recommendations from previous work, including those of the Shucksmith Report ^[1] , into the legislation.

Other respondents identified specific areas which they thought should be a priority going forward. These included: promoting crofter’s rights; policies focusing on securing the future of rural communities; and support mechanisms and agricultural subsidies.

In terms of any potential unintended consequences of crofting legislation reform, comments included that while they are likely or inevitable, they should be more predictable and manageable when associated with a well thought out new Act rather than the alternative options involving consolidation of the existing, very complex legislation.