Crofting consultation 2017

Section 2 - Options for legislative change

Legislative change can be made in a number of different forms. In terms of reforming crofting legislation, the pre-consultation discussions suggested a number of approaches may be appropriate. Each option brings its own advantages and disadvantages and these need to be clearly understood before deciding on the preferred approach to crofting law reform. This is not just about the resources of government or a question of form: it takes time and effort for everyone involved to build consensus and take legislation through Parliament.

Much work has been done to identify contradictions and problems with crofting law, most notably through the production of the Crofting Law Sump Report by the Crofting Law Group. The Shucksmith Report also contained recommendations that had implications for crofting law. These points have been taken into account when considering the options below.

The options range from bringing all crofting legislation since 1993 into one place without changing its effect - "consolidation" - to a completely clean sheet approach.

This chapter of the consultation seeks views on the approaches to the reform of crofting legislation. The following options have been identified as potential approaches to take. Respondents may also think of other options, including a non-legislative approach to change, and Question 2 allows respondents to offer suggestions.

Some stakeholders have suggested that one of the main challenges with crofting legislation is that it is difficult for crofters to understand, and if this could be addressed, there may be a lesser need for legislative change. One suggestion to address this would be the provision of comprehensive guidance on issues crofters face at specific points in the lifetime of a crofter (such as when being assigned a croft, becoming an owner occupier or registering a croft).

The Scottish Government and Crofting Commission are currently engaged in discussion about reviewing and updating the guidance that is already produced by the Commission, how it may be made more comprehensive and how this may be made more readily accessible. This guidance could be updated as necessary to reflect changes in crofting law, including any transitional arrangements that may be required if the existing legislation is amended.

Option 1 - Consolidation Bill

A consolidation Bill brings together several pieces of legislation on an area of law into one Act. It is a way of tidying up the legislation on that topic and making it easier for people to access the legislation. Doing so helps the understanding of the law on that topic by making it possible to find it all in one place, without the need to consider amendments to the legislation or understand how different pieces of legislation interact.

The parliamentary process for consolidation Bills does not permit substantive changes or additions to the law.

Section 52 of the Crofting Reform (Scotland) Act 2010 provides a legislative mechanism (an Order) to permit some modification of legislation to facilitate the consolidation of crofting law. This is designed to allow for the amendment of existing crofting legislation to deal with any inconsistencies or defects that must be resolved in order for consolidation to be able to proceed. This Order can be made only once a Bill consolidating crofting legislation has been introduced in the Parliament and there are limits on the kinds of changes that the power can make.

Pros:

• Would bring in all crofting law into one Act, making it more accessible.
• There may be some limited potential to fix some inconsistencies or defects within current legislation.
• This option, when accompanied by updated guidance for crofters and landlords, may result in a better understanding of crofting law and how it applies.

Cons:

• Experience suggests that consolidation Bills do not always deliver what is wanted, as the limited scope to make changes to the existing legislation means that there are often issues which everyone would like to be resolved but which are simply repeated.
• Issues such as those identified by the Crofting Law Sump would remain largely unresolved.
• Does not allow for the possibility of legislation being made more flexible.

Option 2 - Bill amending existing legislation / Pre-Consolidation Bill

This option would require a two Bill approach to be fully implemented. A pre-consolidation or amending crofting Bill would be developed containing amendments to existing crofting law, but would not bring all crofting law together into one piece of legislation. Such a crofting Bill could make amendments to a wide variety of issues relating to crofting law. For example, it might deal with some of the issues identified in the Shucksmith report or Crofting Law Sump.

This Bill could be a forerunner to a second piece of legislation, a consolidation Bill (as in Option 1). Having made several of the desired changes to existing legislation in the pre-consolidation Bill, a second Bill could then be brought forward to consolidate all relevant crofting legislation, meaning all crofting legislation would be in one place. However, it would not be possible to pass both the pre-consolidation Bill and the consolidation Bill within the current parliamentary session (ending in 2021). This would mean consolidation would have to happen at a later date, which would be a decision for a future Scottish Government administration.

That said, taking forward legislation of this nature now, even without consolidation, offers the potential to address more issues than would be possible under a consolidation Bill ( option 1).

Pros:

• Legislation can target stakeholders' priority issues, provided there is consensus on what these are and how they should be resolved.
• Potential to simplify some aspects of crofting law, depending on the amendments made.
• Potential to address some of the issues/concerns raised by stakeholders.

Cons:

• Unlikely to address all issues presented by stakeholders and, if so, the desire for further legislative change may remain.
• Unlikely to fully address the call for simplification of crofting law.

• Many layers to revised crofting law would still exist until legislation was consolidated (in the next Parliamentary period, at the earliest).

Option 3 - Bill amending existing legislation and restating crofting law

Under this option, a Crofting Bill would be brought forward that would include some substantive changes to crofting law and restate some or all of the existing law. This would result in fewer pieces of crofting legislation, possibly just one. This approach would attempt to reduce the number of pieces of crofting legislation at the same time as making amendments to them. This approach may reduce the opportunity to include as much change to the content of legislation as may be possible in option 2. It would therefore be important to have a reasonable degree of consensus over the priorities for reform before the crofting Bill could be prepared.

Pros:

• This approach allows the potential for a balance to be struck around making some of the main reforms and bringing together all crofting law in one place within this Parliamentary session.
• It gives greater opportunity to address issues around the drafting and complexity of the existing law, as the strict rules about consolidation do not apply.
• It could, in theory, address many of the issues raised relating to the current legislation, but it would require some consensus amongst stakeholders as to what the key issues are and how best to resolve them.

Cons:

• Developing this form of Bill may take a considerable length of time depending on the issues to be addressed and whether there is consensus on the ways in which these should be resolved.
• There would likely be areas of existing legislation that are not changed, and so the desire for further legislative change may remain (for example, it may still not address fully the call for simplification of crofting law).
• New legislation may still not offer the flexibility desired by some.

Option 4 - Bill setting out 'new' crofting law

Some stakeholders have argued for a "clean-sheet" approach, introducing completely new legislation. Unlike restatement, where much of the existing law would be preserved in some form, this option would allow for an entirely new approach to crofting legislation to be developed. A "clean sheet Bill" would set out crofting law as it is to apply in the future and repeal any law that is no longer needed. Under this option, the recommendations in, for example, the Crofting Law Sump, may be superseded (although these could still inform the development of the new legislation).

This option offers a range of opportunities around the form and detail of crofting law. At the extremes, it could result in either very detailed legislation or high-level principle based legislation (with the rest covered by a mix of guidance and regulations). Of course, there are a range of positions in between as well.

Preparing a new detailed piece of legislation has the potential to provide a comprehensive and definitive statement of crofting law. It would give an opportunity to find innovative solutions to existing problems and modernise the legal framework in a way that suits modern crofting. This would require consensus on the new approach to be built over a period of time and then agreement over what is required to be put in law to be reached.

This approach also offers the greatest potential for crofting legislation to be written in a way to best deal with future challenges that crofting may face. However, this is likely to take a considerable length of time to undertake.

Pros:

• Has the potential to develop entirely new crofting legislation to meet the challenges for the future.
• Offers potential to introduce a simpler and flexible approach to crofting law, if a new approach can be identified.
• May mean no further reform of crofting law is required for some time.

Cons:

• Consensus over the new content of legislation may be difficult to reach.
• Reaching the consensus required and developing the Bill itself may take a considerable length of time.
• The greater the extent of change, the longer it may take for crofters and the crofting community to adapt to and develop an understanding of the new law.

Other approaches

Legislative approaches to reforming crofting legislation may not be limited to the options outlined in this consultation. Respondents may also believe that there is no requirement to change current crofting legislation, and that crofting can be improved via other means (e.g. improved guidance, a National Development Plan for crofting, introducing new support schemes and so on).

Should there be alternative suggestions to these approaches, including making no changes to the legislation, these may be described when answering Question 2.

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.

1.
2.
3.
4.
Other

Please can you explain your answer and any other comments you may have on any of these options.