Gaelic Society of Inverness Consultation Response
to Draft Crofting Reform (Scotland) Bill

by Editor

The Gaelic Society of Inverness welcomes the opportunity to comment on the Draft Crofting Reform (Scotland) Bill.

The Society notes the concerns which are being expressed by bodies such as the Scottish Crofting Foundation, Highland Council and Comhairle nan Eilean Siar, and it generally supports the arguments being submitted by these bodies.

Since its establishment in 1871 the Society has supported the crofting communities of Scotland. The Society recognises that many of these communities have been significant support structures for the Gaelic language and culture, but it also believes that crofting cannot be classified as an economic, commercial, industrial or even agrarian activity. The Society believes that this Bill regards crofting as an industry when in fact crofting is much more than that, just as Gaelic is much more than a language so crofting is not only about agriculture, it embodies social customs of a distinctive core community of people.

The Society notes with concern the extent to which this Draft Bill speaks of “crofting” and so little of “crofters” except where there are proposals for the imposition of further regulation and burdens on them. While occasional references to the “fragile” and “vulnerable” state of the crofting lifestyle appears to give some acknowledgement that it is under threat, the Society believes that many crofters will see the proposals in this Draft Bill as the ultimate threat to their way of life. As already noted crofting has been an important repository for Gaelic and its culture and it similarly maintains and sustains other cultures, such as in Shetland, and the Gaelic Society of Inverness believes that if Scottish Government is serious about promoting Scottish identity, including Gaelic, then meaningful support should be accorded to crofting.

The Society feels that this Draft Bill, instead of actively supporting a crofting life-style, seems focussed on resolving “difficulties” by applying further bureaucracy and regulation. Over emphasis on “resolving” issues of absenteeism and lack of use of croft land has led to proposals which the Society regards as draconian, and which it believes could lead to the undermining of the fundamental crofter rights so hard won in the 1886 Act.

The Society recognises that crofting communities are no longer made up of just crofters, and it recognises that there are tensions which require to be addressed. The Society firmly believes that just as surely as solutions must be found to enable an amicable coexistence of respective parties within these modern crofting communities, government will not resolve problems by imposing extra burdens and regulations on crofters. Not only would such moves be discriminatory, but they would also effectively dissipate any entrepreneurial enthusiasm remaining within the crofter sector. People expect to be able to reap rewards from their hard work, and crofters are no different, but the Society believes that this Bill would effectively remove that right from them.

The Society believes that crofting could still have an important role in food production when the carbon footprint of some current food supplies to the Highlands and Islands is indefensible! But irregular crofting policies by government discourage agricultural continuity where for example crofters had to shoot and bury sheep that could not be sold a few years ago. The Society believes that government has a duty to recognise the future needs for world food production, and land use should be encouraged rather than eroded.

The Society believes that there is enthusiasm for active crofting but it is clearly important that viability can be established. There is no point in building communities which have no means of making a living, and in general this is the reality of crofting. For this reason the Society believes that Government should focus on the development and marketing of niche market product from crofting. This together with light regulatory support structures will help crofting to a new future.

The Gaelic Society of Inverness believes that, in advance of further debate on this Crofting Bill, a Cross-Party Group of MSPs should visit some crofting communities identified by the Scottish Crofting Foundation, so that they are fully aware of the reality of current crofting.

Le deagh dhùrachd,

Allan Campbell

Chairman — Gaelic Society of Inverness

DRAFT CROFTING REFORM (SCOTLAND) BILL — CONSULTATION PAPER
CONSULTATION RESPONSE FORM

Question 1: Do you have any comments on:

  1. the proposal to make the Crofting Commission more democratic and accountable through the establishment of Area Committees?

    1. The Society believes that the principal flaw with the current Crofting Commission is the fact that its Membership is appointed by public sector officials rather than by crofters. It is clear from the evidence we have had from active crofters that the majority would prefer to retain the existing Crofting Commission but to amend its appointment system to a more democratic process where crofters will nominate and elect Members, and make the organisation more accountable to the client-group which it was established to serve.
    2. Referring to the letter accompanying this document the Society is firmly of the view that crofting is an enormously important and valuable social and cultural framework which continues to sustain peripheral communities, and that consequently crofting structures must be protected and supported. These structures include cultural and linguistic dimensions such as Gaelic, and the Society believes that crofting has a very significant role to play in the realisation of the National Plan for Gaelic to which the Scottish Government is committed.
    3. The Society is not convinced that the transfer of crofting development activity to HIE is a positive improvement. This is particularly worrying at a time when HIE has had its overall budget seriously reduced, and with a recommendation that Crofting development be fully integrated into HIE community development there is a strong likelihood that focussed crofting development budgets will become “lost” in overall HIE budgets. As we have argued above, crofting is a unique structure which delivers and sustains a range of government aspirations for peripheral areas and for that reason it merits direct support rather than being required to compete with a variety of other social enterprise models. The Society regards crofting as the ultimate example of social enterprise!

  2. the area to be covered by each Area Committee?
  3. the process for Area Committee elections?

    1. Given its response to 1.1 above the Society believes that 1.2 and 1.3 are not applicable. However it does recognise the critical importance of clear and uncomplicated communications between crofters and the Crofting Commission. Allowing always for good governance and the essential separation of “interest” from decision making processes, the Society believes that in many instances the local crofters are best placed to find amicable solutions on regulatory issues. For this reason the Society believes that the role of “crofting assessor” should continue, BUT, recognising the lead role that they are required to take in many instances where the crofter may be regularly absent through employment, the Society argues that wives and partners of crofters should also be eligible for such appointments.

Question 2: Do you have any comments on the proposed changes to the constitution of the Crofting Commission?

  1. (2.2.4.2) The Society would propose that board Members with declared interests should be required to withdraw from meetings while the object of their interest is being discussed.
  2. At (2.2.4.3) The Society would submit that the specified “single Gaelic speaking member” of the Commission is now outdated in the light of the aspirations and Government commitment to the Gaelic Language (Scotland) Act 2006.
  3. Given that the crofting community is largely synonymous with traditionally Gaelic speaking areas of Scotland (excluding the Northern Isles) there should be a minimum of 2 Gaelic-speaking members on the Commission. Further (2.2.3.2 and 2.2.6.2) the new Crofting Commission (and the proposed “crofting assessors” where appropriate) should reflect the aspirations of the Gaelic Act in recruitment and training policies.

Question 3: Do you have any comments on:

  1. the proposed expansion of the powers and duties of the Crofting Commission?
    1. (2.2.6.1) The Society is concerned that the new body might find itself operating within a very tight budget which could make delivery of its duties challenging. Seeking to pass on the costs of regulation is potentially threatening to the future of crofting when linked to the (2.2.7.1) proposal for an annual report which requires “…the Commission to consult with Local Authorities in the Crofting Counties and with HIE in the production of a more comprehensive annual report, which will include an assessment of the issues affecting crofting communities and the contribution of crofting to the sustainable development of Scotland.”
    2. Referring to its responses at 1 above on the important contribution which crofting structures make to Scotland, the Society would strenuously oppose any move whereby the principal measure in future government assessment of crofting would be chiefly economic, and linked to the ability of the Crofting Commission to being self-financing.
  2. what the balance of costs to the individual applicant and the taxpayer for processing regulatory applications should be?
    1. The Society regards the scale of charges proposed in (2.2.6.4) as penal and would totally oppose such a structure. It believes that the introduction of even nominal charges would be an unacceptably dangerous precedent.
    2. The Society believes that (2.2.6.4) and (2.2.6.5) are also confusing in that there is an implied intention for the regulatory work of this body to become self-financing. If this is the plan, and if the views of crofters are taken as seriously as the draft legislation states, why do crofters not have an option as to which body will deliver regulation and at what price? Crofters might well ask what they are getting for the costs required of them — and indeed the scale of fees indicated here could well be completely out of keeping with the almost negative income many crofters experience from their holdings. Consequently the fees proposed could be regarded as an extra tax on crofting — and a very threatening precedent. The Minister has already described as “arrant nonsense”, similar fears expressed by a Labour MSP. Crofters will want more reassurance than that!
    3. It seems contradictory that at a time of major recession; new emphasis on land use and food production; and continuing efforts to promote economic and social development in peripheral areas, that the Scottish Government should be seriously considering making the ultra-fragile crofting community pay for its own regulation. (2.3.6.4) recognises that crofting fits HIE’s Growth at the Edge (Iomairt aig an Oir) — yet this paper simultaneously proposes charging those “at the edge” for regulation!

Question 4: Do you have any comments on the draft Regulatory and Equality Impact Assessment on the Governance proposals?

  1. (2.2.11.3) The Society believes that some experience in crofting should be a requirement and will presumably be recognised by proposers of candidates, and ability to speak Gaelic should also be identified as a desirable qualification in certain areas.
  2. (2.3.4) Referring to all preceding comments the Society would support option (iii)

Question 5: Do you have any comments on the identified regulatory trigger points that would require a first registration to be made in the Crofting Register?

  1. The Society is concerned that the proposed new Croft Register is intended to be self funding (3.1.2). It is not persuaded that the involvement of Registers of Scotland in creating a new Register of Crofts is justifiable.
  2. (3.2.1.1) The Society agrees that an accurate record of holdings is a pre-requisite for effective regulation. It cannot accept however that the creation of a completely new register over a period of two generations (50 years?) is the best solution. Furthermore it cannot accept that the existing register held by the Crofting Commission — albeit not completely up to date — should be ignored, while crofters are expected to pay for a new registration. Neither can the Society accept a process where the Crofting Commission provides all the registration administration (3.2.3.2) while Registers of Scotland take registration fees.

Question 6: Do you have any views on the process for making an entry onto the Crofting Register?

  1. The Society recognises the importance of establishing an accurate register of croft land and it would propose that landlords (3.2.6.1) be required to submit common grazing details for re-registration with the Crofting Commission, and that the crofters affected in each instance be afforded an opportunity to check, and if necessary challenge, the boundaries submitted. All apportionments on common grazing must be shown and they must be clearly linked to the croft involved. All grazing shareholders must also be recorded as appropriate.
  2. The Society also proposes that an initial register (based on the Commission’s existing records and contrary to (3.2.9.1)) should be established at government expense — as with common grazing (3.2.6.1) — and that only new, subsequent, registrations incur charges. If any fees are ultimately applied these should be pitched at levels which reflect the economic status of crofters and crofting. The Society assumes that any fee for registration of a vacant croft will be met by the landlord?
  3. The Society would suggest that the existing Croft Register could be updated as outlined in (3.2.3.2) (excluding the Registers of Scotland), and that once a common grazing has been registered (3.2.6.1) the related crofting township(s) could be provisionally re-registered with the Crofting Commission. The consultation and appeal process could then proceed as outlined in (3.2.3.3) (excluding the Registers of Scotland).
  4. (3.2.3.6) The Society believes it to be essential that crofters are made very aware of the implications of this element of the proposed legislation.
  5. If deemed appropriate by the Crofting Commission and Scottish Government a copy of the revised and updated Croft Register could be passed to the Registers of Scotland once the revision and re-registration process has been completed by the Crofting Commission.
  6. The process outlined by the Society here would have the advantage, because it would be driven by the Crofting Commission and would not incur any costs for crofters (except possibly in the event of a protracted challenge), of achieving a revised and updated Register of Crofts much more quickly than is anticipated in the Draft Bill (3.1.3), assuming of course that the Crofting Commission would be suitably resourced to carry out the necessary administration. It is unlikely under any circumstances that an updated Croft Register can be completed by 2012 which is the Government target date for the completion of the Land Register of England and Wales.
  7. This approach would enable the registration process against a difficult economic background within the crofting communities and also within the spirit of Registers of Scotland’s own published code of practice. “Registers of Scotland’s income is dependent on the economic climate and the buoyancy of the property market. Trends in economic growth or decline, which impact on the property market, continue to be monitored and evaluated.”

Question 7: Do you:

  1. agree with the type of information to be held on crofts in the Crofting Register?
    1. Agree
  2. have any other comments about the information to be held?
    1. No comment to add

Question 8: Do you:

  1. agree with the type of information to be held on common grazing in the Crofting Register?
    1. The Society believes that it is essential that landlords submit details of common grazing boundaries for registration with the Crofting Commission (6.3 above) and that these details are copied to the crofters involved to allow challenge if necessary. The Society also believes that all apportionments must be identified and linked to the appropriate croft, and it is also important that all shareholders are listed.
  2. have any other comments about the information to be held?
    1. The Society asks that similar incontestability apply to grazing boundaries as in (3.2.3.6) for croft boundaries.

Question 9: Do you consider the balance of costs between the applicant and the tax payer in respect of registration to be correct and/or what level of registration fee do you think would be appropriate?

  1. The Society believes that (3.2.7.2) proposes another overhead on a very fragile economic sector! The Register should be initially compiled at Government expense (as permitted under 3.2.7.3) and only then should charges be considered for any changes. After all it is not the fault of crofters that the Commission register is defective or inadequate, so why should crofters be made to pay for a new Register?
  2. (3.2.7.4 and 3.2.7.5) As previously observed it seems to the Society that the Commission will continue to do the bulk of the work on registration while another body receives the payments!
  3. (3.2.7) The Society opposes any charges for first registration of crofts. However, if registration charges are to be levied for croft registration the Society would contend that crofting township members should be considered in a similar way to “Large Scale Applications” under Article 6 of the Land Register. “In general terms, large scale applications are applications for first registration or to register a transfer or charge which affect 20 or more land units (a land unit is a single title, if registered or, a separate area of land, if unregistered). The fee payable is the greater of (a) the scale fee or (b) the fee calculated on the basis set out in the table below.”
    4. New fee Previous fee
    (1) where the application relates to not more than 500 land units £12 for each land unit £10 for each land unit
    (2) where the application relates to more than 500 land units £6,000 plus £6 for each land unit in excess of 500 £5,000 plus £5 for each land unit in excess of 500
  4. While this would mean a maximum registration fee of £12 per croft, the Society’s default position is total opposition to any fee for initial registration of crofts.

Question 10: Do you have any comments on the proposal to allow persons with an interest to challenge the details of a croft or common grazing being registered on the Crofting Register?

  1. The Society believes that challenges must be permitted in the interests of common justice, but to ensure that there is no undue hardship by applicants there should be a time limit on the outcome of all boundary challenges. The Society supports the timing sequence outlined in (3.2.3.3) and (3.2.8.2)
  2. The Society would wish to ensure that a crofting family would not be exposed to undue hardship as a result of a prolonged challenge which could mean the crofter was unable to proceed with any development plans, including housing.

Question 11: Do you have any comments on the draft Regulatory and Equality Impact Assessment of the proposals for the development of a new and definitive Crofting Register?

  1. As already indicated in several preceding responses the Society supports option (3.2.4 (ii)) but recognises that some enhancement is required in the authority of the Crofting Commission to require landlords and owner–occupiers etc to provide up to date information. The Society also recognises that the updating of the existing register is a major task, and that while what it has proposed at 6 a) to c) above will involve extra costs to Government the the Society believes that the outcomes will be worthy of the investment.
  2. Given the “two generation” time estimate for completion of the proposed new croft Register (3.1.3) it is difficult to understand the capital sums shown in (3.3.7.2). The Society believes its proposals are more cost effective.

Question 12: Do you have any comments on the proposal that tenant crofters should be able to use their croft tenancy as security for a loan?

  1. The Society takes the view that the “house and garden ground” provision currently in existence should be an adequate basis for any home loan. Furthermore the Society is aware of a ground-breaking initiative piloted in Skye and, later adopted in the Western Isles where banks were content to lend on the basis of a plan of the house and garden ground. In these instances it was not necessary to de-croft unless a borrower defaulted to such an extent that the lender had no further option. The bank regarded the terms of existing legislation entitling incontestable purchase of house and garden ground as providing adequate security against a loan. The Society would propose that this concept be investigated and possibly endorsed in the new legislation.
  2. The Society recognises that some unique instances of larger building, or agricultural equipment, improvements may require the use of the croft as security, but it believes that the integrity of the croft unit must not be jeopardised against a house loan when a perfectly adequate alternative security, as described (12.1) above, is available.
  3. (4.1.3) The Society believes that the recent collapse of world commercial financial structures questions the assertion that the private sector would be better placed to manage the loan element of crofter housing.
  4. The Society believes that the CBGLS has been an effective and valuable vehicle for the development of social housing in peripheral areas, and that it has contributed significantly to the realisation of numerous other government aspirations in respect of social and economic development. The Society believes that CBGLS should be continued and that the grant and loan elements should be increased to more accurately reflect modern building costs.

Question 13: Do you have any comments about the process for granting and discharging a standard security over a crofting tenancy?

  1. The Society is not convinced of the need for adopting standard security over crofting tenancies. As previously stated (12.4) it believes that the existing CBGLS worked well and was ideally suited to the needs of crofting. This system requires adjustment to bring it into line with current costs, but according to the information available to the Society there is no record of serious debt on this scheme, and it has been reported to have been self financing.
  2. The Society believes that there is no real justification for the general use of croft tenancies as security for loans. The Society believes existing rights of crofters to purchase house and garden ground should remain and that entire croft tenancies should not be tied to house loans.

Question 14: Do you have any comments on the proposed modifications to rights and responsibilities when a standard security is granted over a croft?

  1. While the Society does not support the general principle of using croft tenancies for security against loans, it has no comment on the proposed modifications where such a security might be in place.
  2. (4.2.6.8) The Society believes that priority ranking for public sector loans discourages other lenders, and it is important (4.3.5.3) that they should not be so discouraged if crofters are to have more access to private sector loan finance. (4.2.6.9)

Question 15: Do you have any comments on the proposed modifications to rights and responsibilities when a creditor enforces the security?

  1. While the Society believes that crofting has a good record of managing loan repayment, it does recognise the need for agreed systems to deal with occasional failures. However it is concerned that some of the proposals in the Draft Bill could effectively undermine the basic principles of security of tenure and succession enshrined in the 1886 Act. The Society believes that the implementation of an enhanced CBGLS could effectively minimise such risks.

Question 16: Do you have any comments on the draft Regulatory and Equality Impact Assessment for support for croft housing?

  1. The Society supports option 4.3.4 (ii). It believes that the sums involved would be relatively minor in the overall context of Scottish Government spending (4.3.5.2). It would also argue that the track record of crofter loan repayment is generally very good, and as previously argued (12.4) it believes that these CBGLs generate significant added value in rural communities, thus saving expense to the public purse.
  2. The Society reiterates its comments at (13.1 & 13.2) and (15.1) above.

Question 17: What are your views on the principle of an occupancy requirement applying to houses built on land taken out of crofting tenure?

  1. The Society does not believe that such a principle would be in the best interests of crofters or crofting communities. It believes that such a requirement would be draconian and extremely difficult to manage, and that it would lead to conflict and disagreement within communities.
  2. The Society is also concerned that such a principle would lead to the serious devaluation of crofter assets.

Question 18: Do you have any comments on:

  1. the length of time required to be resident in a house in order to meet the occupancy requirement?
    1. Refer to the Society’s response at 17 above
  2. other aspects of the attachment and administration of the occupancy requirement?
    1. Refer to the Society’s response at 17 above

Question 19: Do you have any comments on the proposed exceptions to time considered as being absent for the purpose of the occupancy requirement?
  1. Refer to the Society’s response at 17 above

Question 20: Do you have any comments on:

  1. the proposals for extinguishing, suspending and reinstating the occupancy requirement?
    1. Refer to the Society’s response at 17 above
  2. whether or not Local Authorities should be able to zone areas where it would extinguish the occupancy requirement as a matter of policy?
    1. Refer to the Society’s response at 17 above

Question 21: Do you have any comments on the proposals relating to the enforcement of the occupancy requirement and the right of appeal?

  1. The Society believes that section (5.2.7) of the proposed legislation is draconian and could discourage a crofter from working to improve his home or assets because he could ultimately be forced to relinquish these at below market value.
  2. The Society believes that this measure could lead to the erosion, rather than enhance, crofting activity through its negative effect on the value of heritable assets within crofting families.

Question 22: Do you have any comments on the draft Regulatory and Equality Impact Assessment of the occupancy requirement?

  1. The Society opposes the occupancy requirement proposal.

Question 23: Do you have any comments on the proposed definition of an owner–occupier?

  1. The Society believes there should be three definitions — tenant; croft owner; and landlord.

Question 24: Do you have any comments on the proposals that are designed to help achieve greater equality in the treatment of tenant and owner–occupier crofters and help to free up crofts for new entrants to crofting?

  1. The Society believes that, while the principle being argued may be understandable, there is something profoundly worrying about a law which would enable a government body to impose a tenancy arrangement on croft owner. As the draft document states this is not the same as a landlord who owns crofts.
  2. If such a proposal were to be implemented the Society questions what would be proposed where a croft owner has a house on the croft. Would the legislators propose that the owner be evicted — forced to relinquish his asset? The Society believes these proposals are unworkable, particularly in situations like Glendale in Skye where crofts have been owned with full title for over half a century.
  3. There is property in Scotland worth countless millions, and many millions of acres of land, owned by foreign speculators who are frequently absentees. Croft owners might well ask why legislation is proposed to impose perpetual burdens on their land while no similar action is planned on wider speculative practices.
  4. The Society opposes any retrospective burdens on croft owners.

Question 25: Do you have any comments on the proposals in the draft Bill that are designed to enable the Commission to take more effective action against absenteeism?

  1. The Society agrees that semi-derelict crofts should be re-let but where an “absentee” owns the croft house there should be provision for a fair settlement for the house and any permanent improvements at proper market value.
  2. From all evidence available to the Society it believes that there is no substantial evidence that proves a general link between absenteeism and lack of land husbandry. The Society has found much evidence of single crofters working multiple units effectively and making a viable living. These situations tend to be managed through local sub-letting arrangements and they appear to work well. The Society has difficulty in agreeing with a proposal which would effectively remove one crofter from his viable operation and replace this with several non-viable “crofting” family units.

Question 26: Do you have any comments on the proposals in the draft Bill to enable the Commission to take more effective action where a croft is not being put to productive use?

  1. The Society believes the depressed nature of crofting agriculture in general, combined with an ageing crofter population, means that a substantial proportion of croft land is not being used in the traditional way. Little ploughing is being done and even where active crofting is taking place it tends to be for grazing stock. So it might be difficult to define what “productive use” is deemed to be. Should this be defined more clearly? There is also a risk that application of such a rule would not be equitable.
  2. The Society believes that crofting practices do have the potential to contribute effectively to the country’s food chain, but that crofting cannot cope with such regular policy changes, and if it is to have a serious role in future it must establish a unique niche market in which it can operate relatively exclusively and unaffected by world farming industry variations. The Society believes that more government support with product development and marketing to achieve such a niche operation is essential if crofting is to have a viable future.

Question 27: Do you have any comments on the draft Regulatory and Equality Impact Assessment for the proposed changes to crofting regulation?

  1. Nothing further to add.