Crofting law reform proposals: consultation analysis

6. Enhanced Crofting Commission Powers

This chapter covers Crofting Commission powers and administrative matters relating to crofting governance and enforcement, including Crofting Commission board membership and elections, constituency boundaries, and decrofting application decision-making.

The focus of crofting regulation

Views were sought on proposals to redesign the regulatory controls on who holds crofts. Given the level of detail, please refer to the consultation paper to see the full proposals. In summary, to improve decision-making efficiency it is proposed to remove the routine requirement for the Crofting Commission to make decisions on who holds crofts such as through assignations, sub-lets and leases, bringing it in line with the position of owner-occupiers, who do not need such approval. The Scottish Government proposes to introduce a post-transfer check within two years of taking up the croft to ensure crofters are meeting their duties, to be monitored by the Crofting Commission. This would replace the need for prior approval of lease arrangements, which include assignations.

A significant exception is proposed to retain a regulatory check in the case of any one person owning or controlling multiple crofts: to redesign the regulatory controls on who takes on a croft, both for assignations/purchases of owner-occupied crofts, and for sublets/short leases. The consultation paper sets out certain transfers or purchases that would still require prior approval to avoid this situation. These include cases where the purchaser already holds three or more holdings in the Register of Crofts and, in the case of assignations and sublets, where the landlord raises an objection. This means that for the first time, the Commission could refuse the transfer of owner-occupied status, requiring the incoming purchaser to let the croft to a tenant crofter.

Respondents were asked four closed questions about specific proposals (Q5.1 to Q5.4), and one open question then asked if they had any comments on the four proposals. Around four in ten respondents left open comments, which have been categorised according to the question they related to. Q5.1 on assignations and Q5.4 on the proposal to introduce a report at the 2-year stage, drew the greatest number of comments. General comments were also provided, which are summarised under Q5.5 below.

A range of comments on Q5.1 were made by many. These were evenly split between comments for and against the proposal. Reasons for support included that landlords should be more involved in decision-making; that it could improve Crofting Commission efficiency; and that it would create parity between owner-occupiers and tenants. Reasons for opposition included that evidence suggested existing arrangements worked; that they constituted an important and valued check on an otherwise unfettered market in croft tenancies; and that landlords rather than the Crofting Commission should have sole decision-making authority.

Other issues raised, from most to least mentioned, included:

• The need for enhanced regulation for croft assignations or transfers, and for this to be the case for all crofts. It was felt reduced regulation could further fuel market forces in crofting.
• Involving others in decision-making, such as the need to involve local townships and a perception that a crofters’ right to be involved were being eroded, given they previously had a right to raise objections.
• Comments on using ‘three holdings’ as a criterion, including (i) that disparate croft sizes made this inadequate as a measure, (ii) whether it included both owner-occupier and tenant arrangements and (iii) it felt arbitrary. Participants in the Lerwick stakeholder event highlighted it was normal in Shetland to have more than three crofts. Suggestions were made for this number to be replaced by a relative number (e.g. percentage), for instance, 20% of the crofts in a township.

“Regarding assignations, we note the proposals retain the right of the landlord to object. We would expect, in many cases, the crofting community will be better informed and more motivated to comment on proposed assignations and consider such representation would contribute to more effective regulation.” - Highlands and Islands Enterprise

A range of views were expressed by many on Q5.2. Contrasting positions were evident in these comments; some advocated all cases should be regulated in this way while others agreed with the proposal and others opposed such regulation outright. Similar issues arose as for Q5.1, such as the need for crofter involvement; alignment between owner-occupiers and tenants; and comments on the use of ‘three holdings’’, such as this could disadvantage those with small crofts.

“SCF has previously proposed that owner-occupiers should need to seek approval of the Crofting Commission upon acquiring ownership of their croft to gain owner-occupier crofter status (and would be required to install a tenancy in the case where approval is not granted) and we make that proposal here again. That all individuals who purchase a croft are required to apply for owner-occupier crofter status regardless of how many crofts they already have.” – Scottish Crofting Federation

“Using the term "3 or more holdings" is not entirely fair. Owner-occupied crofts, where shares have split to become deemed shares, count as two holdings in the register, so Person A could have one croft and two shares (each deemed crofts) and Person B could have 3 tenanted crofts and shares. They each have 3 holdings in the register, but Person B has two or three times as much holding in reality.” - Individual

Several commented on the proposal for sublets to only require prior approval if the landlord raises an objection. There was prevailing agreement with this proposal among those who commented, noting that it could improve efficiency. A few expressed uncertainty or gave provisos such as if regulation was tightened and a few commented that others should have a say too, notably other crofters, such as in the township. One called for an enforceable duty for landlords to remove tenancies from tenants who did not utilize their croft, “including if it is sublet for a period of five years or more”.

“If the proposal regarding allowing sublets to be terminated due to breach of duties is advanced, this seems a sensible use of resources.” – Law Society of Scotland

The proposal to minimise checks at the point of transfer and instead require information on whether crofting duties are being met within two years, or the next crofting Census, received many comments. There were calls to ensure duties were monitored effectively, with action taken where not. The need for greater clarity over what checks would be used at the entry stage was raised, amid a wider call for stringent checks at the point of assignation or sale. Some left comments highlighting existing considerations the Crofting Commission is currently required to take into account.

Concerns were raised about the unintended consequence of “unscrupulous” people gaining access to crofts. Some expressed their agreement with the proposals while a few gave qualified support. Caveats included that the required information should (i) be submitted before one year, (ii) apply to tenants and owner occupiers, or (iii) be contingent on a five-year plan being submitted to the Crofting Commission at the point of assignation or sale.

Q5.5 If you wish, please comment on your answers to Q5.1 to Q5.4.

Most comments received at Q5.5 related to the proposals presented in Q5.1 to Q5.4 as described above. However, comments on other issues were also given.

Many respondents raised broader issues stemming from the proposals in this section, with many endorsing the aim to enhance efficiency in the Crofting Commission. However, concerns were raised about the Crofting Commission’s perceived current performance; some expressed doubts it could cope with the suggested changes.

Another prevailing view was the need to avoid unforeseen consequences, such as the erosion of crofter rights or fuelling market forces. There were calls for greater consideration of how crofter principles would be protected and enhanced.

The Scottish Land Commission supported measures to help maintain or increase diversity in ownership and occupation of land. They agreed that attention should be given to how streamlined regulation could effectively address cases of multiple crofts, noting the Land Reform (Scotland) Bill would, if enacted, place new obligations on landowners to produce Land Management Plans.

“However, it is not clear how the interests of a crofting community will be considered as there will no longer be any right for a member of the crofting community or a grazings committee to object. Hence what is proposed now will entail minimal regulation of croft transfers and is contrary to the aspirations of the 2010 Act which followed on from the Crofting Inquiry to ensure the better regulation of crofting. A related and important point is that removal of such controls will strengthen the market of crofts and tenancies.” - Scottish Crofting Federation

The consultation asked further closed questions on other potential powers for the Crofting Commission. As shown in the tables below, the vast majority of those answering supported each of these proposals.

Power to grant Owner-Occupier status

Minor reorganisation

To correct errors in Directions and Orders

Decrofting

The consultation paper notes that for most regulatory applications, the Crofting Commission has to consider if someone is using the land, and is resident, before reaching a decision. However, in the case of decrofting applications, these considerations do not apply. The Scottish Government proposes to bring decrofting applications in line with other applications. In future, it is proposed that it will be a material consideration as to whether the applicant is complying with their crofting duties and whether the croft has received previous decroftings, and these might be reasons for refusing an application.

Just under one third of respondents provided an open comment. In line with the high levels of agreement recorded in the closed question, most of the comments received were positive about the proposals. The most common theme was that it could limit decrofting, followed by views that more enforcement in this area is needed.

There is a need to limit decrofting

The number of comments on this theme matched those on the need for greater enforcement (see below). Respondents suggested that the main reasons for decrofting applications were for financial or personal gain, and calls were made for decrofting to stop, or be the exception.

Decrofting needs greater enforcement

Several called for stronger regulation of decrofting. Other views included suggestions that those who are in breach of their duties should not be able to apply to decroft or make other applications or have a right to buy.

“An application to remove land from crofting via a decrofting application should be subject to rigorous regulation as this will diminish the crofting resource for current and future regulation. The status quo whereby an applicant being in breach of his/her crofting duties is not a material consideration when determining the application is wholly unsatisfactory for a regulated system.” – Community Land Scotland

Decrofting applications should be on a case-by-case basis

Some felt that decrofting applications should be considered on their individual merit. Points included: that situations were all different; that a non-compliant crofter may wish to acquire and decroft the house site but release the croft land; and that the type of land use should be more relevant than residency. There was also a suggestion from a national organisation that the Crofting Commission could consider introducing regional rules to allow different communities to be enhanced or protected.

There should be a right to decroft

A few individuals felt there should be a right to decroft. This view was shared by some event participants in Lairg and Lerwick, who felt owner-occupiers should automatically have this right. Other comments included: that the landlord should make decrofting decisions; decrofting applications should be automatically granted; and that it should be acknowledged that a crofter may seek to decroft to raise capital.

“The law should be adjusted so that decrofting applications are merely noted and granted by the Commission. What is the sense in opposing a decrofting application to "protect" croft land if there is nobody living there and cannot acquire capital to live there. Decrofting is going to become more important to finance croft activities especially when a family home costs over £300,000 now plus the cost of all the utilities, access roads etc. To get the benefit of decrofting crofters already are overburdened by the ridiculous clawback provisions." – Individual

Other comments

Other issues, each raised by two respondents, included: that the proposal was too complex to be workable; that there was general agreement with the proposal; and that the proposal could free up crofts for new entrants.

“Any consideration of decrofting should be contingent on compliance with statutory duties. Too many crofts are unworked and absentee due to vague future plans of decrofting and building a house. Closing the door on this should create significant more opportunity for new entrants (especially young entrants). Crofts should not be retirement land investments, even with historical family connections.” - Individual

Just over one in five left an open comment. The most frequently mentioned theme in the comments was an agreement that the croft’s history should be taken into account. Other themes included that limited decrofting applications should be allowed; that viability and size should also be considered; and that previous applications should not be considered.

Yes, take previous decrofting applications into account

Several respondents suggested things that the Crofting Commission should look for when scrutinizing previous applications. Most commonly, respondents noted that multiple previous applications should give cause for concern. Other considerations included: the extent to which the croft has been decrofted; decrofting for profit; any reasons that previous applications had been rejected; and the purpose of applications, such as selling off a decrofted house and site and then applying to decroft an area to build another house.

“We must find a way to stop the erosion of croft land through successive decroftings and are all aware of examples where this activity has had a detrimental effect on crofting townships who have seen plots of land decrofted and sold off to parties that have no interest in crofting.” – Scottish Crofting Federation

No, consider decrofting applications in isolation

Another strand of comments was that previous decrofting applications should not be considered by the Crofting Commission when taking decisions. Comments included: that decrofting should be a private matter; to consider the application’s purpose only; and that the previous applications or the size of the croft was not relevant. The Law Society of Scotland felt it important that “over-regulation” did not act as a barrier in cases where “a reasonable purpose that is not compatible with crofting tenure can be shown”.

Limit the number of decrofting applications

Some highlighted the need to limit decrofting applications more generally, with the most common view being that only one decrofting per croft should be allowed.

“There should be a limit on the number of decrofting directions per tenancy, above which the application is subject to detailed scrutiny and there should be a presumption against, unless clear benefit to the wider crofting community can be demonstrated.” - The National Trust for Scotland

Also consider the impact on croft viability

The need for the Crofting Commission to consider whether decrofting applications would affect the croft’s operations and viability was raised in a few comments, the majority from organisations. Many emphasised the need to maintain the crofting system; both retaining land within the system and making sure individual crofts are large enough to remain viable. An individual felt there was a disparity in size of the area that can be decrofted in the Outer Hebrides compared to elsewhere.

Consider applications on a case-by-case basis

A few felt each decrofting application should be considered on merit, giving similar reasons for those who felt applications should be considered in isolation. However, these respondents were more likely to argue that the Crofting Commission may sometimes wish to consider a croft’s history, but it would be case dependent.

Sanctions

The consultation paper explains that at present a variety of sanctions are available where a crofter has been found not to comply with crofting duties, including criminal proceedings, but proposed a wider range of sanctions for other circumstances. The Scottish Government propose to ensure that where a crofter has failed to comply with conditions imposed by the Crofting Commission when approving their application, the penalty should be that the approval is revoked, unless circumstances make this unrealistic, and that an application can be put on hold by the Commission in cases where a crofter has failed to complete the annual census or provide required information.

Fewer than one in five left an open comment explaining their answer, and in line with the high level of support in the closed question most of those who commented agreed with the proposal. The most common themes were agreement that the Crofting Commission should have more power, and that greater enforcement was required in this area.

Extend powers for the Crofting Commission

Extending powers of the Crofting Commission to use administrative sanctions was agreed by several respondents. Two respondents felt it could help crofting, for instance by encouraging new entrants into crofting or enabling crofts to be used productively, and a further two felt such enforcement would be fairer. Singular reasons for support included that this would help the Crofting Commission be more efficient or that the powers could act as a deterrent. Other comments included: that requirements should be clear; that there should be a right of appeal; and that it should also apply to landowners who do not comply with conditions imposed in a resumption^[9].

The need for greater enforcement

Several respondents advocated for strengthened enforcement in cases of regulatory breaches. They expressed support for enhancing available sanctions, with one suggesting fixed penalty payments could also be required. An individual highlighted that there were not many qualified crofting solicitors in the Highlands and Islands therefore making crofters aware of their statutory obligations and rights was a challenge. They suggested more efforts to raise awareness among crofters, such as through learning events and leaflets, to avoid the need for enforcement activity.

More sanctions might not be needed or wanted

Some expressed a view that new sanctions were either potentially not needed or that they did not wish to see new sanctions introduced. These respondents suggested the Scottish Government needed to do more work to identify why breaches of duty occur or to check additional legislative measures were necessary. Comments included: that new sanctions could make matters worse; that support rather than punishment was preferable; or that, given current difficulties in achieving effective regulation, the focus should be taken off “matters of not much importance to many crofters”.

“However, in respect of the second point - the Act largely does this already? If, for example, an owner occupier had failed to inform the Commission that they had acquired the croft, and tried to put an application in, the Commission would question it at that point and get them to fill in the necessary form.” - Individual

Suggestions for improvement

A few respondents shared ideas for improving regulation in this area. The Law Society of Scotland felt any such rules should only come into effect once a formal finding of breach has been made and should be subject to appeal to the Scottish Land Court. They added that “consideration could also be given in this context to the possibility of any interim sanctions”. An individual suggested the Crofting Commission should still be required to consider assignation applications when a crofter is in breach of their duties which should “be carefully scrutinised”.

“Likewise, in the event of an owner occupied croft being sold in similar circumstances, the granting or not of owner occupier crofter status to the purchaser should be carefully considered.” – Individual

Two follow-up questions were presented to those who agreed that the Crofting Commission should be able to use administrative sanctions where there is a regulatory breach. These are shown below and were supported by over three quarters and three fifths respectively.

Elections of Members of the Crofting Commission

The consultation paper provides a summary of the regulations governing the Crofting Commission board, and notes that the Commission is unique among Non-Departmental Public Bodies because the majority of its nine board members are elected, through elections that take place every five years. The board comprises six elected Commissioners and three members appointed by the Scottish Government.

To address potential issues with this balance of members, the Scottish Government sought views on whether the board should be more evenly balanced between elected and appointed members, and if there should be a cap on the number of times a Commissioner can be elected, for example, twice only. The implied limit of 10 years as an elected Commissioner would be similar to the limit of 8 years that an appointed Commissioner can serve on the Crofting Commission board.

Q5.14 Do you have any suggestions for how we split the number of Commissioners between elected and appointed?

Almost half of respondents commented on the split between elected and appointed Commissioners. The most common view was that a majority should be elected. Other ideas on how membership could operate or other types of suggestions were shared, and conversely, some felt that there should be a majority of appointed members or an equal mix of types.

The majority, or all, should be elected

The most common theme was that most or all Crofting Commission members should be elected by the crofting community. This view was held by many, including respondents who supported continuation of the current approach, of six members elected and three appointed. A majority of elected members was also supported by participants at stakeholder events, where this was discussed. Reasons included that elected members would prioritise crofter interests, that crofters had the relevant crofter expertise, and that crofters could better represent diverse communities.

Although the prevailing view was for the current approach to be maintained, a few advocated for different mixes such as seven elected and four appointed or keeping six elected but increasing appointed members to four or five. One individual felt it easiest to retain six elected so as “not to have to mess with constituencies” while another felt there should be a minimum of two thirds elected members.

Comments on membership

Many respondents gave wider views on membership and members’ terms of office. These are presented below from most to least mentioned.

The need for board membership continuity, or issues with the rotation of members, were raised by some. It was suggested a maximum term should be set, with ideas including two terms of between 3-5 years. To assist continuity, staggered appointments were felt helpful by a few, while one suggested shadow Commissioners could be introduced and a junior board mentored by the main board. Another felt a rolling election system for elected members could avoid too much change occurring at once.

“We could move to every 3 years, a single term of 6 years and a maximum of 12 years. This latter number feels too long but I have served on a number of boards and both continuity and the ability to contribute positively only coming into play once you have mastered the ways of the board are key factors for me.” - Individual

Some discussed the cap on the length of time served in office. These respondents felt there should be some form of cap, with a few giving support for the proposal. Concerns were raised, however, about the need to maintain the number of elected members, leading one to suggest this should be the focus rather than having a cap.

Suggestions were made by a few on how to increase elected members’ expertise, notably by allowing them to co-opt members. Three commented on landlords, two of whom felt there should not be a designated seat for landlords, while another felt it important that at least one member represented landlords.

Other suggestions

The third most common theme was other comments on the Crofting Commission’s seats or members. Some discussed Island seats. These views included that the proportion of seats or elected members representing the Western Isles should increase, and which islands should have Commissioners (see Q5.15). There were also calls for a review of the constituencies, with Community Land Scotland believing they were considered “not representative of the number of crofters in each area”.

“I would propose one Commissioner for Shetland and Orkney, one for Caithness and Sutherland, one for Ross shire, Inverness shire and Argyll and one for the Western Isles. Most of the crofters are on the western seaboard in these areas.” – Individual

Some also commented on specific aspects, such as Commissioner roles or elections. The need for Commissioners to have clear roles and responsibilities, with enhanced accountability, was stressed by a few. Suggestions for elections included weighting votes by number of crofts in an area and the need for good publicity and transparency.

The majority, or all, should be appointed

Calls for most or all members to be appointed by the Scottish Government were made by some. Most commonly, where a reason was given, this was to ensure skills and expertise could inform the work of the Commission.

“Reflecting on the complexity of crofting regulation, with responsibilities for over 70 staff and a budget of approximately £4m, there is clearly a need to ensure appropriate skills and competencies within the board. We would expect this to be more deliverable through appointed, as opposed to elected, board members.” - Highlands and Islands Enterprise

Q5.15 If we were to reduce the number of elected Commissioners, how should we divide the crofting counties into constituencies?

Over a third of respondents expressed a view on how to divide the crofting counties into constituencies. The most common theme in comments related to the previous question, reiterating opposition to the suggestion that we could reduce the number of elected members. The second most common theme was for more weighting to be given to the number of crofts or crofters in an area, followed by suggestions relating to the Scottish Islands.

Opposition to reducing the number of elected Commissioners

Although not directly answering the question, many respondents challenged the suggestion that the number of elected Commissioners may be reduced. They argued there should be no reduction, or alternatively, there should be an increase. A few felt regional representation would be more challenging with fewer elected members. Two queried the reason for suggesting a reduction. The Scottish Crofting Federation endorsed the call for a constituency review:

“We do not support the idea of reducing the number of elected Commissioners and actually would propose that a review of the constituencies is undertaken as the current system sees a huge imbalance in the number of crofters represented by each Commissioner. It may be, for example, that splitting the Western Isles and the West Highlands into two constituencies provides more equitable representation than currently.” – Scottish Crofting Federation

More weighting should be given to crofters

Many felt that there should be more weighting on crofting issues when determining constituency boundaries; most commonly the number of crofts in an area. Constituencies could contain a proportionate number of crofts, with one suggesting each constituency should have “between 1,500 and 3,000 crofters approximately”. Comhairle Nan Eilean Siar suggested locating Commissioners in areas with a greater number of crofts, and therefore crofters. They felt running elections in a similar way to those for local councillors i.e. based on the proportion of eligible voters in an area, could positively impact crofter representation.

Suggestions relating to the Scottish Islands

The third most common theme concerned the Scottish Islands. These respondents argued that crofters on the Islands had not been well represented by Commissioners. Some suggested that constituency boundaries should ensure effective representation, sharing several place-based suggestions about specific Island constituencies. Ideas for the Western Isles included having two Western Isles constituencies or one for the Western Isles and one for the Northern Isles. Two called for the creation of a Uist and Barra constituency while another suggested separate representatives for Lewis and Harris. One called for Orkney and Shetland to be considered as a constituency, possibly including Caithness.

Base constituencies on geographical areas

Some left comments that constituency boundaries could be determined in relation to place or geography. It was felt distinct geographical locations and place should inform decisions about constituencies. A couple felt “average” or “similar” sized areas should be the basis of division. Members at the Inverness stakeholder event suggested an approach similar to that used for Holyrood elections i.e. commissioners could cover a geographical area plus a list commissioner elected by proportional representation. One respondent felt the split should be by islands, rural and mainland.

“In addition to considering the distribution of crofts to inform representation that is relatively proportionate, we would also suggest that ‘place’ be considered also. For example, crofting in Orkney is very different to crofting in Harris, so consideration of crofting ‘culture and practice’ may be beneficial also.” – Highlands and Islands Enterprise

Mixed views were recorded in response to this proposal, with two fifths in favour, two fifths opposed and one fifth unsure. While there was no follow-up open question about this proposal, some individuals left a range of comments related to this proposal in response to Q5.17. A few felt Commissioners should be able to return after a break, with two suggesting this break could be for a term of office. This was felt a good way to address recruitment difficulties, for instance if a replacement could not be found.

Voting in elections

Previous Crofting Commission elections have operated on the basis of one vote per croft, except that a crofter could only have one vote no matter how many crofts they had. Those with crofts in more than one constituency were eligible to vote in the constituency they lived in. The Scottish Government do not propose to change this and sought views as to whether respondents agree or not.

A minority of respondents - one in ten - left an open comment on voter eligibility. Half of these were miscellaneous follow-up comments in relation to Q5.16, included in the above analysis.

Of the remainder, the only emergent theme was that the current system of one vote per crofter should be retained. This was viewed as equitable. One agreed with the proposal but also felt the Scottish Government could consider extending voting rights to family members of a croft household also on the electoral register.

Two suggested others should have a vote; non-crofters should have a say in croft land and landlords should be able to vote.