Crofting consultation 2017

Section 3 - Specific legislative priorities

Having considered the legislative options in the previous section, this chapter examines issues that are specifically related to crofting legislation and how it might be improved to help crofting thrive.

It is important to recognise that the ideas presented in this chapter relate to either what is in current legislation (and can be reviewed) or what can be dealt with through a new Bill. It does not include issues that, while possibly of equal or greater importance to those in crofting communities, are non-legislative in nature.

Following the early engagement meetings between the Scottish Government's Crofting Bill Team and those that hold an interest in crofting, it became clear that there are many views across crofting areas as to what the priorities should be for crofting legislation in the 21st century. The intention of this chapter, therefore, is to highlight the main issues raised and to ask respondents to indicate where the priorities should be for future crofting law.

These priorities need to be considered in the context of any challenges are likely to arise in terms of the Scottish Government's wider aims for crofting (such encouraging economic development or encouraging population growth in crofting areas). Other considerations, such as the UK leaving the European Union, might also need to be taken into account. Change for the wider agricultural sector, as well as crofting, will occur and there may be significant implications for future agricultural and crofting policy. Such developments would have an impact on the route that legislative change may take and in the priorities for crofting legislation.

The priorities set out have been chosen as the most commonly-raised issues in various forums and numerous documentation. This includes the REC Committee's report ' Review of Priorities for Crofting Law Reform ', the Crofting Law Group 2014 Sump Report, the Shucksmith report of 2008, and the early stakeholder engagement sessions held by the Crofting Bill Team.

Please note that the following are listed in alphabetical order, and not in any order of perceived importance or priority. Furthermore, the examples listed in each section are a selection of some of the responses the Bill Team received during its early engagement work. They are not meant to represent a complete list of all matters raised for each issue, nor what only could (or would) be looked at as part of any Bill. As there may be terms or areas of crofting not all respondents may be regularly involved with, a glossary giving definition of the most common terms is included in this consultation for reference purposes.

i. Absenteeism, Misuse and Neglect

Context

Current crofting legislation contains duties that crofters need to comply with in relation to residency, use, misuse and neglect of crofts. Crofters must:

• be ordinarily resident on, or live within 32 kilometres of, the croft;

• not misuse or neglect the croft; and,
• cultivate the croft, or put it to another purposeful use.

The aim of these requirements is to assist in retaining population in crofting areas as well as ensuring that croft land is actively managed. To support this, current legislation requires crofters to report on their crofts annually through the Crofting Census, and imposes duties on the Commission to take action wherever there are breaches of duty.

To date, the desired increase in enforcement of duties by the Commission has not yet occurred, although the Act continues to require it and the Commission continues to highlight this as a priority in their published plans.

The Crofting Commission's Annual Report and Accounts ^[13] 2015-16 reported, for example, that of the 12,900 Crofting Census forms submitted, 91.5% stated that they were resident on their croft and 94.6% stated that they cultivated and maintained their croft or put it to purposeful use. The report also stated that in that year the Commission received five reports of potential breach of duties and, as a result, it issued two breach of duty notices.

Examples

Please note that the examples given below are illustrative only. They are not meant to represent a complete list of all matters raised for each issue.

A number of views regarding absenteeism and neglect have been raised with Scottish Government officials. One view expressed was that absenteeism has led to neglect of croft land, reducing the viability of crofting in areas affected. Some suggested that absenteeism should only be seen as a problem where it leads to neglect, while others argued that absenteeism, even when land is managed through informal or more formal tenancy arrangements, prevents crofts being made available for new entrants.

Some stakeholders argued that the benefits from crofting come from active management of the land. In this case, the response may be to encourage activity through the most appropriate means and not to tightly enforce regulations on absenteeism and neglect.

Others argued the benefits come from having active, locally resident crofters. In this case the response may be to remove a croft from the absentee crofter or crofter who is responsible for the neglect. This would allow a new entrant or local resident to take over and contribute more effectively to the sustainability of the crofting community.

There may be a mixed approach to dealing with absenteeism or neglect depending on local circumstances, and that may require different approaches to legislative change, regulation or both. It may be that reduced or less vigorous application of legislation would be more appropriate in some areas compared to tighter and/or more rigorously applied legislation in others.

Question 3

A) What do you think are the main opportunities for change relating to Absenteeism, Misuse and Neglect?

B) What specific parts of the current legislation that you are aware of regarding Absenteeism, Misuse and Neglect could be changed to help address these matters?

C) What do you think would be the practical effects of making these changes to the legislation (e.g. financial, environmental, social, equality or other effects)?

D) Apart from changes to legislation, are there other more appropriate ways that issues relating to Absenteeism, Misuse and Neglect could be addressed?

Please provide any other comments you may have on Absenteeism, Misuse and Neglect.

ii. Assignation and Succession

Context

Legislation on assignation and succession provides essential protection to crofters, allowing crofts to be transferred or inherited.

Assignation legislation governs the process by which a crofter transfers the tenancy of a croft either to another crofter or new crofter of their choice.

Succession legislation covers two circumstances relating to a deceased person:

• testate succession, whereby a crofter makes a will that names the person(s) they wish to leave the tenancy and/or common grazing shares to; or,
• intestate succession, describing the succession to a deceased person's estate in the absence of a will or a will that cannot be given effect to.

Examples

Please note that the examples given below are illustrative only. They are not meant to represent a complete list of all matters raised for each issue.

While early engagement sessions organised by the Scottish Government raised relatively few issues relating to assignation or succession, the Crofting Law Sump Report raised a number of more technical issues. The need for good succession planning was highlighted, as was the critical importance of making a will so as to avoid the often complex administrative process associated with intestate succession.

An issue was raised in that when a crofter dies intestate, the executor is to give notice of transfer of the tenancy within 24 months of the crofter's death (or relevant date). Some crofters thought this period was unduly short and saw no reason why it should not be extended. The effect of not transferring the tenancy within 24 months is that the landlord can take steps to terminate the tenancy.

In addition, others felt that there was an inconsistency between intestate succession rules and those for assigning a new croft to a new entrant crofter. Intestate regulations allow the executor or landlord to transfer a tenancy to an individual of their choosing without the need for the new crofter to demonstrate that they are able or intend to comply with all the statutory rules required to become a crofter. This is a less onerous requirement than during an assignation, where one of the factors to be considered is whether the proposed new tenant will be able to demonstrate this.

Question 4

A) What do you think are the main opportunities for change relating to Assignation and Succession?

B) What specific parts of the current legislation that you are aware of regarding Assignation and Succession could be changed to help address these issues?

C) What do you think would be the practical effects of making these changes to the legislation (e.g. financial, environmental, social, equality or other effects)?

D) Apart from changes to legislation, are there other more appropriate ways that issues relating to Assignation and Succession could be addressed?

Please provide any other comments you may have on Assignation and Succession.

iii. Common Grazings

Context

There are around 1,000 Common Grazings in crofting areas. These are traditionally areas of land that crofters have shares in that allow them to graze livestock on. The grazings are owned by a landlord but the landlord has limited rights over this land as it is securely linked to crofts (and cannot be readily removed from crofting).

Common Grazings are usually managed by Grazings Committees, approximately half of which currently have committees in office. Grazings Committees make regulations to control their use and assist in their management. The 1993 Act contains provisions on the appointment and operation of Grazing Committees. Around half of all Common Grazings have a Grazing Committee.

Crofters who hold interests in Common Grazings are shareholders in those Grazings, giving them certain rights and responsibilities set out in legislation over their use.

Examples

Please note that the examples given below are illustrative only. They are not meant to represent a complete list of all matters raised for each issue.

Issues raised over common grazings are varied and are too numerous to describe in this consultation alone. Some of the issues raised relate to concerns about:

• lack of clarity in the legal form which a Grazings Committee has (one suggestion is that the Bill should allow a choice of legal form, ranging from a traditional Committee with limited powers to a more formally structured organisation with a wider range of powers and responsibilities);
• uncertainty around what non-agricultural activities may be undertaken on Common Grazings (and who may benefit from them);
• promotion of participation in Committees and/or the use of the Common Grazings themselves (including the improvement of their economic viability);
• the management and/or use of Committee funds for purposes other than the development or maintenance of the land for grazing purposes;
• the involvement of the wider local community, and the ability for someone other than the Committees to manage common grazings;
• who possesses the responsibility for reallocating unused grazing shares;
• roles and responsibilities of active versus inactive shareholders, and the relationship between the two;
• contentions around the Grazings Committee duty to report;
• issues around the separation of Grazings Shares from the croft and the creation of deemed crofts; and,
• the appointment, role and removal of Grazings Constables.

Common Grazings are a significant asset to crofting, crofters and crofting communities. There is a strong desire within these groups to ensure that grazings are managed in a way that delivers economic, environmental and other community benefits.

Question 5

A) What do you think are the main matters and opportunities for change relating to Common Grazings?

B) What specific parts of the current legislation that you are aware of regarding Common Grazings could be changed to help address these matters?

C) What do you think would be the practical effects of making these changes to the legislation (e.g. financial, environmental, social, equality or other effects)?

D) Apart from changes to legislation, are there other more appropriate ways that issues relating to Common Grazings could be addressed?

Please provide any other comments you may have on Common Grazings.

iv. Crofting Commission Regulatory Functions and Processes

Context

The Crofting Commission is a Non-Departmental Public Body ( NDPB) responsible for regulating crofting. Its constitution, powers and duties are fully set out in the Crofters (Scotland) Act 1993, as amended by the Crofting Reform (Scotland) Act 2007, the Crofting Reform (Scotland) Act 2010 and the Crofting (Amendment) (Scotland) Act 2013. Further detail on these Acts, and resultant framework, are available from the Crofting Commission.

The Crofting Commission's general functions are to regulate and reorganise crofting, and to promote the interest of crofting whilst keeping crofting matters under review.

The Commission's Board is currently made up of 6 Crofting Commissioners elected from geographical crofting areas and 3 Commissioners appointed by Scottish Ministers. They are chaired by a Convenor, who is selected by Scottish Ministers (though the decision can be made to delegate this to the Commissioners). The Commission is supported by approximately 60 staff, led by a Chief Executive, and is based in Inverness.

As the Commission operates within the framework of crofting legislation, there is potential for a future Bill to amend the legislation relating to the operation of the Commission and its Board, as well as the requirements placed on it. It should be recognised, however, that many of the operational procedures of the Commission are not set out in legislation.

The Crofting Commission has been working on positive ways to improve its operations and has introduced a number of actions that should, in time, bring about necessary improvements. Examples here include the introduction and expansion of delegated decision making from the Board to Crofting Commission staff, and its recent stakeholder engagement on improving how Common Grazing regulations operate. In particular, the Commission has now streamlined its approach to non-contested and non-controversial applications, so that these can be decided upon as quickly as possible.

Examples

Please note that the examples given below are illustrative only. They are not meant to represent a complete list of all matters raised for each issue.

Crofters and crofting communities have raised a number of matters relating to the Crofting Commission, such as:

• the length of time taken to conclude certain regulatory processes. Some of the delays experienced by crofters and croft landlords may rest with the Crofting Commission and, on the other hand, some of the regulatory application delays may result from legislative requirements, constraints and timescales;
• crofting Commission processes to be simplified where possible, and for accessible guidance about them;
• how Crofting Commission's regulatory decisions can balance the need for consistency with sensitivity to local circumstances and diversity of crofting communities in different areas; and,
• whether the number of elected and appointed Commissioners should increase or decrease.

Question 6

A) What do you think are the main opportunities for change relating are for the Crofting Commission's regulatory functions?

B) What specific parts of the current legislation that you are aware of regarding the Crofting Commission's regulatory functions that could be changed to help address these matters?

C) What do you think would be the practical effects of making these changes to the legislation (e.g. financial, environmental, social, equality or other effects)?

D) Apart from changes to legislation, are there other more appropriate ways that issues relating to the Crofting Commission's regulatory functions could be addressed?

Please provide any other comments you may have on Crofting Commission regulatory functions and procedures.

v. Crofting Registration

Context

The 2010 Act introduced the requirement for the Keeper of the Registers of Scotland to establish and maintain a public Crofting Register ^[14] of crofts, common grazings and land held runrig. The register shows the extent of the land and property relating to a croft on an Ordnance Survey map.

The Register of Crofts enables the ready identification of property rights and boundaries to provide certainty over the areas of land associated with a croft. This will ease the administration of land transactions in the future and may assist in reducing disputes over boundaries. Well documented croft boundaries would also be necessary to enable the issuing of standard securities on tenanted croft land (discussed in sub-section vii below) and housing sites.

The Crofting Registration process has involved a high number of cases in the Land Court, especially when documents from the past contain different evidence about where boundaries lie. Ideally, all such uncertainties should be resolved by the registration process, but there are practical limitations on how far this can be achieved.

Since November 2012, the Crofting Register has been open for voluntary registrations. Since November 2013, registration also became compulsory on the occurrence of certain events such as assigning crofts, subletting or decrofting land. So far 4,000 out of approximately 16,000 crofts have been registered.

As part of this process the applicant must, on receipt of the certificate of registration, give public notice of the registration by placing an advertisement, for two consecutive weeks, in a local newspaper and affixing a notice to the croft.

Within 9 months of notification, entries to the register may be challenged by applying to the Scottish Land Court. ^[15]

Examples

Please note that the examples given below are illustrative only. They are not meant to represent a complete list of all matters raised for each issue.

During the early engagement work undertaken by the Scottish Government, a number of concerns were raised by crofters who found the registration process onerous and costly. A number of stakeholders have questioned the need to go to the time, trouble and expense of advertising in a local newspaper and have suggested that other, more cost effective, means should be used instead (e.g. posting on the Crofting Commission website).

In addition, there is evidence relating to boundary disputes that arise during the croft registration process that are often frustrating and potentially costly for the parties involved to resolve.

Question 7

A) What do you think are the main opportunities for change relating to Crofting Registration?

B) What specific parts of the current legislation that you are aware of regarding Crofting Registration could be changed to help address these matters?

C) What do you think would be the practical effects of making these changes to the legislation (e.g. financial, environmental, social, equality or other effects)?

D) Apart from changes to legislation, is there other more appropriate ways that issues relating to Crofting Registration could be addressed?

Please provide any other comments you may have on Crofting Registration.

vi. Owner-occupied crofts

Context

Traditionally, crofters were the tenant of the croft, paying rent to the landlord (who owned the land). Since the coming into force of the Crofting Reform (Scotland) Act 1976, crofters have been able to purchase their crofts for 15 times the annual rent, becoming the landowner whilst also being able to croft the land. The term 'owner-occupier crofter' was first defined in the Crofting Reform (Scotland) Act 2010.

There are other issues about owner occupier crofters and their place within the crofting system. The current intention is that both croft tenants and owner occupiers should have an equivalent balance of rights and responsibilities within the crofting system, in relation to the rights of crofting communities and future entrants to crofting. The current legislation largely reflects this principle of equivalence, but changes could be made to either strengthen it or depart from it.

Stakeholders have expressed concern about a technical loophole in the current law has been identified whereby some owner occupiers do not have the status of 'owner occupier crofters'. The Bill could provide an opportunity to rectify this, if considered appropriate.

Examples

Please note that the examples given below are illustrative only. They are not meant to represent a complete list of all matters raised for each issue.

It has been suggested that the issues regarding owner-occupiers should be examined as part of the review of legislation. For example, the Crofting Law Group Sump Report of November 2014 recommended that the status of owner-occupier crofters needs to be clarified within crofting legislation, and that there should be less of a distinction between owner-occupiers and tenants in law. In essence, anyone who occupies a croft should be subject to the same regulations.

The REC Committee report concluded that "options for the treatment of owner occupiers within the crofting environment should be examined in detail as part of the Scottish Government's consultation."

Conversely, during the early engagement events, the point was raised that as the original 1886 Act gave crofters rights in law as tenants, only tenanted crofts should be covered by crofting law. Consequently, the purchase by a crofter of his or her croft should result in either the croft being removed from crofting tenure or certain rights and access to schemes currently designated for crofting tenants being removed from the purchaser of a croft.

Question 8

A) What do you think are the main opportunities for change relating to Owner Occupier crofts?

B) What specific parts of the current legislation that you are aware of regarding Owners Occupier Crofts could be changed to help address these matters?

C) What do you think would be the practical effects of making these changes to the legislation (e.g. financial, environmental, social, equality or other effects)?

D) Apart from changes to legislation, is there other more appropriate ways that matters relating to Owner Occupier Crofts could be addressed?

Please provide any other comments you may have on Owner Occupier Crofts.

vii. Standard Securities

Context

Tenant crofters have raised the issue of being unable to secure funding for housing or business development. This is a key issue in crofting communities, and is vital to increasing the population of remote, rural areas and strengthening the rural economy. Lack of secure funding leads to difficulties for crofters in raising the necessary finance to develop croft housing, which is a necessity in developing and sustaining crofting communities throughout the crofting areas.

One of the main reasons for the inability to secure funding is that tenant crofters are unable under the current law to have a standard security issued over their tenancies. Crofters are usually required to exercise their right to buy the croft under section 12 of the 1993 Act, so they then can obtain a standard security over their ownership of the croft holding.

In order to make the secured asset more attractive to lenders, the property usually needs to be de-crofted so that it is not subject to 1993 Act regulation. Enabling banks to offer financial products to crofters could create a new market and opportunity for banks to expand their business in the crofting areas.

During the development of the 2010 Act it was intended for the legislation to introduce the ability for standard securities to be raised over crofting tenancies. This proved complex, however, and the provisions were removed late on in the passage of the Bill through the Scottish Parliament. Subsequently, the Scottish Government has received a number of calls to reintroduce legislation in relation this matter.

Question 9

A) What do you think are the main opportunities from granting a Standard Security over a croft tenancy?

B) What do you think would be the practical effects of making these changes to the legislation (e.g. financial, environmental, social, equality or other effects)?

C) Apart from changes to legislation, is there other more appropriate ways that issues relating to Standard Securities could be addressed?

Please provide any other comments you may have on granting standard securities on croft tenancies.

viii. Ordering of priorities

The previous sections outline the major crofting issues that have been raised with the Scottish Government relating to legislation. Of the issues identified, please list in your answer to Question 10 those which you think should be a priority for Crofting Bill reform to address, in order of 'highest priority' first to 'lowest priority' last.

If there are any other issues relating to crofting legislation or crofting more widely that you feel are missing, please provide the information you wish to include by answering Question 11.

Question 10

Please list in order of 'highest priority' first to 'lowest priority' last;

1)

2)

3)

4)

5)

6)

7)

(The issues identified were: Absenteeism, Misuse and Neglect; Assignation and Succession; Common Grazings; Crofting Commission Regulatory Functions and Processes; Crofting Registration; Owner-occupier Crofts; Standard Securities)

Question 11

A) Are there any other priorities for crofting that have not been considered in this consultation?

B) Are there any potential unintended consequences of crofting legislation reform?

Please tell us any other thoughts you have about the proposed Crofting Legislation reform not covered in your earlier answers.

If you have any comments on non-legislative, wider aspects of crofting please provide them.