Crofting consultation 2017: analysis report

3. Options for legislative change

The second question in the consultation looked at options for legislative change.

Question 2: Please select your preferred option to indicate which you believe to be the most suitable way to proceed with any crofting law reform. Should you wish to suggest another approach that has not been discussed above, then please select ‘other’ and provide details.

Option 1 – Consolidation Bill

Option 2 – Bill amending existing legislation/pre-consolidation Bill

Option 3 – Bill amending existing legislation and restating crofting law

Option 4 – Bill setting out ‘new’ crofting law

Other option

As set out in Table 3 (below), the largest proportion of those answering Question 2 (43%) preferred Option 4 - the Bill setting out ‘new’ crofting law. This was the most popular choice amongst both organisations (43%) and individuals (44%).

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. Option 3 - a Bill amending existing legislation and restating crofting law - was the choice of 18%, while only 3% preferred Option 1 - a Consolidation Bill. The remaining 12% of those answering the question preferred an alternative option to those set out within the consultation paper. Please note, however, that in their further comments two of these respondents stated a preference for Option 2.

Table 3: Question 2 by Respondent Type

Type of respondent	Option 1	Option 2	Option 3	Option 4	Other option	Not answered	Total
Organisations:
Common Grazings Committee		2	1	1			4
Community Landowner or Body	1			1			2
Crofting Business				1	1		2
Crofting or Smallholding Representative Body or Group		2		2			4
Estate, Landowner or Representative Body		1		1			2
Legal			1	1	3		5
Local Authority			1	3			4
Other		1		1		2	4
Public Agency or Body		1		1		3	5
Total organisations	1	7	3	12	4	5	32
% of organisations answering	3%	24%	20%	43%	11%*
Individuals	2	19	16	34	9	10	90
% of individuals answering	4%	26%	11%	44%	15%
All respondents	3	26	19	46	13	15	122
% of all respondents	2%	21%	16%	38%	11%	12%
% of all those answering	3%	24%	18%	43%	12%

* Figures do not sum to 100% due to rounding

A total of 98 respondents made a further comment (including two of the 15 respondents who did not answer the closed element of Question 2).

The analysis presented below covers the options in turn and presents the advantages and disadvantages respondents gave for each option. As noted above, a diverse range of comments were made, including on the options for legislative change. Respondents often held opposing positions, making it difficult to identify key themes concerning possible amendments to existing legislation or the development of any new legislation.

3.1 Option 1 – Consolidation Bill (3% in favour)

Advantages identified in relation to Option 1 were:

• A consolidation Bill should be achievable within the timescale of the current Parliamentary session (Individual).
• It offers the safest and most stable way forward (Community Landowner or Body).
• Uncertainties due to Brexit mean now is not the time to make any major changes (Individual).

Disadvantages identified in relation to Option 1 were:

• Consolidation alone is not enough (Common Grazings Committee, Crofting or Smallholding Representative Body or Group, Estate, Landowner or Representative Body, Public Agency or Body, two Individuals). It would lead to the continuation of unsatisfactory legislation (Other, Individual).
• It would not allow for any substantive changes to be made (Legal).
• The need to resolve anomalies and inconsistences in current crofting law is a higher priority than consolidation (Crofting or Smallholding Representative Body or Group).

3.2 Option 2 – Bill amending existing legislation/pre-consolidation Bill (24% in favour)

Advantages identified in relation to Option 2 were:

• It is a possible compromise option, if accompanied by guidance on the application of legislation and commitment to a Bill setting out new crofting law (Local Authority).
• For some respondents, Option 2 was seen as the ‘least worst’ option (Common Grazings Committee, two Individuals).

An alternative approach put forward was that a hybrid of Options 2 and 4 could work, with a ‘clean sheet’ Bill once the initial amending Bill had bedded in. This would simplify legislation rather than just consolidating it (Crofting or Smallholding Representative Body or Group).

Disadvantages identified in relation to Option 2 were:

• It is a complex option and could lead to much debate without a good outcome (Local Authority).
• It will require two Bills (Legal).
• It does not address the current legislative problems (Other).
• It will be subject to constraints in terms of the parliamentary time available (two Individuals). There was a question as to whether a pre-consolidation Bill and consolidation Bill can be dealt with in the current Parliamentary session, even given that much of the work had already been done by the Crofting Law Group (Common Grazings Committee, Crofting or Smallholding Representative Body or Group, two Individuals).

Other comments included:

• Statute should be simplified, with detail that does not need to be in primary legislation put into guidance (Common Grazings Committee, Crofting or Smallholding Representative Body or Group, Estate, Landowner or Representative Body, three Individuals).
• Clear guidance will make crofting more accessible for new entrants who need to understand their responsibilities (Common Grazings Committee, Crofting or Smallholding Representative Body or Group, Individual).

3.3 Option 3 – Bill amending existing legislation and restating crofting law (18% in favour)

Advantages identified in relation to Option 3 were:

• It should reduce the number of pieces of legislation required (Common Grazings Committee, Individual).
• It could resolve anomalies and errors and restate the law in a more concise and accurate way (Legal, Individual).
• It would enable safeguards, such as those covering the rights of crofters, to be retained (Common Grazings Committee, Individual).
• It could deliver improved legislation in the life of a parliament (Local Authority) and address issues in a reasonable timescale (Individual).
• It offers the flexibility to make future changes (Legal).

Disadvantages identified in relation to Option 3 were:

• It is a ‘light’ version of Option 2 (Crofting or Smallholding Representative Body or Group, two Individuals) which would tidy up legislation rather than allowing for substantive change (Public Agency or Body).
• It might require more time than the current Parliamentary session allows and may not be completed or could be dropped altogether (Common Grazings Committee, Crofting or Smallholding Representative Body or Group).

3.4 Option 4 – Bill setting out ‘new’ crofting law (43% in favour)

Advantages identified in relation to Option 4 were:

• The principles of the 1886 Act have little application to modern times and new legislation is needed (Estate, Landowner or Representative Body, Individual). Option 4 focuses on the future rather than the past (Public Agency or Body, Individual).
• Reforms to legislation to date have not clarified the law but rather added to bureaucracy (Legal, two Individuals).
• It is the ‘clean sheet’ approach and could get rid of anomalies and loopholes in crofting law (Community Landowner or Body, Individual).
• It could include a new way of administering crofting, potentially decentralised to allow regional variations (Community Landowner or Body, Crofting Business).

Disadvantages identified in relation to Option 4 were:

• Reaching consensus on a new Bill could be difficult, lengthy and potentially unworkable (Common Grazings Committee, Crofting or Smallholding Representative Body or Group, Estate, Landowner or Representative Body, Public Agency or Body, three Individuals). There was a question as to whether legislation which was broad enough to receive the support needed to become law could be drafted (Local Authority, Individual).
• Existing legislation would be repealed, and the rights of crofters put at risk (Common Grazings Committee, Crofting or Smallholding Representative Body or Group, three Individuals).
• It would require more time than available during the current Parliamentary session (Common Grazings Committee, Crofting or Smallholding Representative Body or Group, Local Authority, three Individuals). Respondents who mentioned time constraints as an issue also flagged up concerns about the current rights of crofters being repealed and also about consensus being hard to reach.

Other comments included:

• There should be an unambiguous statement of vision and policy for crofting (Other, Individual) supported by simple primary legislation, underpinned by regulation and guidance (Crofting or Smallholding Representative Body or Group, Public Agency or Body, two Individuals).
• New legislation must retain rights and protections which crofters already have including security of tenure; rights of succession and rents set independently (Common Grazings Committee, Community Landowner or Body, Local Authority, Individual).
• Legislation should be framework legislation setting binding targets on government and giving powers to an independent commission to achieve targets. Secondary legislation could be created through Regulatory Orders (Crofting Business).

3.5 Other option (12% in favour)

Comments about other possible approaches included:

• The existing law is satisfactory as it stands and should not be changed (Individual).
• Issues identified in the Crofting Law Sump could be implemented while other reform is considered (Legal).
• Crofting law should be abolished (Individual) and existing crofting tenancies turned into agricultural tenancies. Crofts could be included in existing law for farmers and agricultural land with any specific regulations brought through secondary legislation (Individual). If a system could be devised which would encourage new entrants and part-time farmers, it should apply to the whole of Scotland (Legal).