Stage 1 Report on the Crofting and Scottish Land Court Bill

• Crofters' duties - the Commission's capacity/resources for enforcement are highlighted in the Report along with comments from the Chair of the Commission about its current comprehensive programme of modernising policy and refocus on enforcement using its existing powers. Notably, when the Minister gave his evidence, he highlighted the Commission's recent significant figure of terminating one croft tenancy a week due to unresolved breaches of duty. The Report discusses a variety of views around who can/must report breaches of duty, together with the possibility of neutral bodies such as SG's Rural Payments and Inspections Division (“RPID”) acting as the Commission’s "eyes and ears on the ground". With differing opinions on the table, the Committee noted that the current system of reporting and enforcement of crofters' duties should be included in any future review of crofting. The Committee has also requested further information from the SG on how it intends to support and build the cooperative relationship between RPID and the Commission, and how it will ensure that RPID has sufficient resources and expertise.

• Enabling environmental uses of crofts - the Report notes that many consider the term in the Bill too vague, although the Commission disagreed with suggestions that the bill should further define this term. Among other comments, the Report notes that the National Farmers Union Scotland suggested amending the Bill to emphasise active land management for environmental use, and that other stakeholders feel the Bill should require positive environmental benefit, with HIE noting that "planned and managed" use could perhaps be misleading, for example planting sitka spruce on peatland might be a planned and managed use but it is now known to be ecologically damaging. Crofters added that such use should be complementary to productive or community beneficial activities, rather than a replacement for them. Another suggestion was that environmental use should be limited to a certain percentage of croft land. The Report notes the Minister's commitment to strengthen the definition of environmental use in the Bill and asks SG to respond with an update on possible amendments.

• Reporting on breaches of duties - opinions are mixed on extending the categories of people who should be able to report a breach of crofter's duties. SG is asked to respond on this point, while the Committee has agreed with the provision in the Bill that removes the requirement for a grazings committee to routinely report on each croft (as this proposal has widespread support).

• Streamlining the enforcement process – the proposal to combine the first two stages of the current 4 stage enforcement process has been welcomed and the Report records the Committee’s agreement with this provision.

- Assignations to family members – a spread of opinions have been shared about the 3 croft limit for the proposed fast-track process which would see consent granted automatically to assignation applications that meet certain criteria. With the Minister reassuring the Committee that applications from an applicant with an existing interest in 3 or more crofts would remain subject to the current assignation process rather than falling to be rejected, the Committee agrees with provision.

• "Owner-occupied" crofts – The proposal to amend the meaning of “owner-occupier crofters” to allow the Commission to determine status, is noted and support by the Committee. However, in relation to the proposed prohibition on transfers of owner-occupied crofts to persons who are not individuals, concerns are noted around the potential impact on organisations such as community partnerships and trusts which are engaged in effective croft management. The Report seeks reassurance from SG that it is engaging with stakeholders and exploring amendments to the Bill to address these concerns.

• 10 year restriction on assignation and acquisition following Commission letting – the Commission has noted that assignations during the 10-year period following the Commission letting a vacant croft are "incredibly rare", but it supports the provision in the Bill. Legal practitioners giving evidence suggested there may be good reasons for looking to assign a tenancy within the 10 year period, such as ill health, divorce or death and proposed a process to allow exceptions in particular circumstances. SG is asked to respond to these points.

• Powers to adjust boundaries – many have shared views about the common and very frustrating difficulties that arise from boundary discrepancies, particularly in terms of consistency between the Crofting Register and the Land Register. The Committee supports the proposed powers in the Bill pertaining to boundary adjustment and remapping, and emphasised concerns about maintaining “linkages” between the registers. SG is asked to address these concerns through amendments to the Bill.

• Common grazings – the practical and highly complex legal difficulties that arise as a result of grazing shares being separated from crofts has been commented on extensively. The Minister gave evidence that SG officials have set up a common grazings sub-group with stakeholders to discuss the legal concerns and identify an appropriate mechanism by which a grazing right can, as a default, be attached to an owner-occupied croft when it is transferred. He expects that most of the concerns expressed will be alleviated via amendments to the Bill - the Report notes that the Committee welcomes this and requests an update from SG.

• Use of common grazings for forestry or environmental purposes – the Bill would amend existing provisions on use of common grazings for forestry purposes and introduce a new use for environmental purposes. Access to finance was identified as a barrier to such initiatives, and a number of stakeholders raised the current uncertainty around carbon credits, in particular noting need for clarity around who will own and have rights over credits pertaining to common grazings. Concerns around “land banking" and speculation on common grazing land was also discussed. The Report notes broad support for environmental joint ventures, and the Committee welcomes provision to facilitate this while also recognising issues affecting the ability to progress these. SG is invited to address these points in response to the Report.

• Crofting Register – The Commission noted the long-term ambition to retire its Register of Crofts with the map-based Crofting Register becoming the authoritative register. However, it estimates that only 50% of crofts are registered in the Crofting Register and therefore retiring the Register of Crofts will not happen soon. Difficulties around rectifying errors in the Crofting Register were discussed with concerns noted about the perceived breadth of the powers being granted to Registers of Scotland to rectify if the Bill is passed. With reassurances from Registers of Scotland about how it expects to use the power, the Committee is content with these provisions.

• Appointed Commission members – the Bill contains a provision making the appointment of a landlord representative to the Commission a recommendation rather than mandatory. While concerns from landowner stakeholders are noted in the Report, the Commission is content with this proposal. This follows the Minister giving evidence that “There is absolutely no desire to water down or dilute landlords’ ability to be represented. It’s just that, in this circumstance, there may be other, more effective uses of that place on the Commission.” Irrespective of desire, the result nonetheless does dilute the ability of landlords to be represented. When the Commission was established in 1955 the requirement was simply for members to have knowledge of crofting conditions (and at least one member who could speak Gaelic), but since the introduction of the Crofters (Scotland) Act 1993, it has been necessary to have at least one person who appears to the Scottish Ministers to represent the interests of landlords. The provision in the Bill marks a significant change that will potentially restrict the involvement of landlords; and it is likely that this point will be discussed further at Stage 2 of the bill process.