Restrictions on Disposal

Clause 2 – in the House of Commons at 3:43 pm on 18th March 1997.

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Photo of John McFall John McFall , Dumbarton 3:43 pm, 18th March 1997

I beg to move amendment No. 2, in page 2, line 15, leave out 'persons' and insert 'the community'.

The Minister is aware of the debate that we had on this is Committee, when the terms "persons" and "community" featured heavily. He said in Committee that the Crofters Commission would take account of local community development when preparing advice to the Secretary of State on the general interests of the crofting community, which it is required to consider, or any other matter that it thinks relevant. On that basis, he suggested that the amendment tabled in Committee was unnecessary.

In addition, the Minister suggested that the term "local community" was uncertain, and could include more than just the residents and the property to be disposed of. That is the point of the amendment.

The wider community interests require to be recognised for simple reasons. As others have stated, those concerned with policy innovation in the highlands and islands know that support, confidence and agreement do not come easily. It is therefore important that the Bill contains a trigger mechanism which will ensure that a transfer takes place only where there is demonstrable local support for it.

Our view is that the Bill is too narrowly drawn and that the interests of the wider community are not taken into sufficient consideration. Indeed, the Scottish Crofters Union expressed its concern to me yesterday and this morning. It points to the fact that a strict legal interpretation suggests that people living on certain areas of land may not reside on original crofting property. In legal terms, a body will acquire the land-owning interest over a piece of property. That interest carries with it certain burdens, such as march fencing, as well as certain rights to sanction development of a non-agricultural nature or forestry, and the right to resume land for a reasonable purpose such as development. Other rights, such as sporting and mineral rights over the property, may also be transferred.

The wider community interest needs to be taken into consideration. If, for example, development takes place, the environmental interests and local economic interests should be high up the agenda. Those interests are protected by local planning authorities and statutory bodies, and those bodies have a set of procedures that aim to gather the views of parties affected by possible decisions. Any individual or township can have an input in the consultative process.

The Scottish Crofters Union recognises that the danger is that rights in land for people who are not resident in the property could undermine crofting development yet, by the same token, it considers it perfectly reasonable that the wider community should be considered when non-crofting developments are being contemplated. At present, it is more common for the wider community interest to be dealt with through wider legislative mechanisms. If, for example, development takes place, planning legislation provides for the wider community's input, as do elements of the criminal law, such as laws dealing with nuisance.

The principle, with which the Scottish Crofters Union agrees, is that the wider community should have greater involvement in any wider development initiatives. It believes that that can best be dealt with through the articles and memoranda of association of any body acquiring property. It is in the interests of that wider involvement that we ask the Minister to focus his attention on the point. Support from communities is essential if the Bill is to achieve its worthy aims.

Photo of Mr Robert Maclennan Mr Robert Maclennan Party Chair, Liberal Democrats

I too have heard from Dr. Fraser Macleod, the director of the Scottish Crofters Union, in terms similar to those described by the hon. Member for Dumbarton (Mr. McFall). In our discussion in Committee about the appropriateness or otherwise of the words the interests of persons residing on such property I was anxious to focus on the apparent restrictions of the use of the word "persons". I preferred the use of the words "the people". It seemed possible that "persons" could be a small number, not necessarily the majority of those who constituted the crofting community. Although I had no doubt that that was not the intention of the legislation, I had and still have concerns that the use of the word "persons" does not sufficiently embrace the interests of all those residing on the crofting estate.

I believe that the words "the community" suggested by the hon. Member for Dumbarton in place of the word "persons" attempts to meet my point and another point, which is the one on which the Scottish Crofters Union has focused—the desirability of the crofting trust having in mind in its establishment the promotion of the interests not just of crofters resident on the land being transferred but of their neighbours in the development of the crofting land.

I take the point made by the Scottish Crofters Union that, strictly legally defined, crofting communities are those associated with crofting land. I remain concerned about the use of the word "persons" for the reasons that I have given, but understand why the Scottish Crofters Union takes the view that to speak of wider community interests would potentially impose on crofters a duty to take into account considerations of those who are not, stricto senso, of that crofting community, and might impose on them burdens such as the construction of fences or other burdens that should not adhere to them as a result of acquiring the land.

The underlying purpose of clause 2 to ensure that the transfer of land from the Secretary of State to the trust considers the wider interests of all those living in the area remains unsatisfactorily spelled out. The Scottish Crofters Union is clear that that is a purpose of the clause, and I am clear that it ought to be a purpose, but it is not spelled out, and I regret that.

Lest there be any question of inadvertently imposing new burdens on crofters through "the community" being in place of "persons" in the Bill, I however incline to the view that my original wording was to be preferred. At this stage, I think that we shall have to wait and see how the provision works in practice. As there is some ambiguity in what is meant by "persons", there is however a great deal of virtue in the Minister putting firmly on the record his judgment of the intention. If the courts are called on to adjudge the matter, the words will be weighed with considerable care.

Photo of Mr Raymond Robertson Mr Raymond Robertson , Aberdeen South

We believe that the amendment may risk jeopardising the ability of some crofters to establish crofting trusts. I know that that is not what the hon. Member for Dumbarton (Mr. McFall) would wish.

Any requirement that a crofting trust represent a community may be interpreted to require that a community be shown to exist on the relevant property. Decisions of the Scottish land court have found that scattered crofts can be deemed not to form a community. It is therefore possible that crofters in the eastern highlands, where there are no common grazings and crofts are often some distance apart, may be frustrated in attempts to establish trusts if they cannot demonstrate that a community exists on their scattered holdings. The amendment could therefore remove from some crofters the ability to establish a trust, which is contrary to the Bill's principle.

Where a community can be shown to exist, our advice is that the terms "the community" and "persons" have no legal difference, and that in this context, the amendment is unnecessary. I invite the hon. Member for Dumbarton to withdraw the amendment.

Photo of John McFall John McFall , Dumbarton

Although the Scottish Crofters Union does not hold the same view as the Minister on the point, I recognise the validity of his statement. The issue of the wider context still divides us a little, but in the light of his assurance and his very reasonable response—perhaps for the first time, which is very important at the end of this Parliament—I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Order for Third Reading read.—[Queen's consent, on behalf of the Crown, signified.]

Motion made, and Question proposed, That the Bill be now read the Third time—[Mr. Raymond S. Robertson.]

Photo of Mr Robert Maclennan Mr Robert Maclennan Party Chair, Liberal Democrats 4:14 pm, 18th March 1997

The importance of the Bill is not to be measured by its length or the fact that it is reaching its concluding stages at a time when the eyes of the public are diverted from the House to the political battle elsewhere. This is a significant little Bill. It was conceived in haste by the Secretary of State, notwithstanding the history—to which the hon. Member for Cunninghame, North (Mr. Wilson) referred—of the report by the Public Accounts Committee, when it was chaired by Mr. Edward du Cann.

The evidence for my belief that the Bill was conceived in haste is that the Secretary of State seemed to be unaware of the extent of the obligations contained in the Bill. The earlier debates on the Bill showed much uncertainty about whether the Government were prepared to contemplate the transfer of the sporting and mineral rights with the crofting rights. Today, we have heard a helpful defining statement from the Government on that issue, which marks a development in their thinking.

The Bill has also been given a considerable fillip by the success of the Assynt Crofters Trust, which took a private initiative to acquire the north Assynt estate near Lochinver in my constituency in the early years of this Parliament. That initiative showed how crofters, coming together in a community to acquire the ownership of an estate, could help to benefit their own interests and those of the wider community, economically and socially. That precedent may start a landslide in due course.

The benefits of common acquisition by crofters of a sporting estate have been seen in north Assynt and further north in Sutherland, where the Talmine estate is being similarly transferred to the crofters on the initiative of the proprietor. That estate is in the neighbourhood of Melness, one of the remaining Gaelic communities in Sutherland, and the transfer is a welcome development. Other inquiries and initiatives have followed the north Assynt acquisition, and the Bill will play a useful part in changing attitudes and improving the prospects of crofters in the highlands.

It is clear that many holdings have better prospects of viable development if they are managed by the crofters, in their interest. Most crofters believe that the Secretary of State has been a good landlord, but the appurtenances of ownership in today's world—with the possibility of raising further finances on the security of an estate, or coming together to develop assets that cannot be developed in isolation—offer real advantages in certain areas.

In discussions earlier in our proceedings on the Bill, I have been at pains to ensure, most importantly, that transfers of ownership from the Secretary of State would take place only when there was an absolutely clear view within the community that they would be in the interests of the crofters. There should be no question of this becoming simply a way of disembarrassing the Secretary of State of a loss-making concern. The Minister has made it clear that that is not the Government's intention.

It is also important that, when the Crofters Commission, under clause 2, carries out tests of opinion so as to advise the Secretary of State whether it is in the interests of the crofting community that the transaction should take place, the tests should be completely transparent, deliberate, open and well considered by all affected.

It is satisfactory that the Crofters Commission has said that that would be its intention, although it has not yet defined what it would regard as a significant majority, or said whether it would wish to establish opinion by means of a secret ballot, and whether absentee crofters should be consulted. All those are significant matters that could affect the judgment whether the Crofters Commission has properly discharged its function of determining the will of the people affected.

I would be happier if those details had been given before the Bill reached its concluding phases in the House. It seems to me that a secret ballot is a desirable mode of determining the view of the community. I distrust opinions expressed at a single public meeting, with hands either raised or not raised. There is no doubt that, in many communities, there are people who have a dominant influence on opinion, and that others with as much right to be heard may feel less able to be forthright in expressing their views.

I do not think that a decision of such importance should be arrived at without the kind of deliberative approach that I have recommended from the beginning. Such a step would bring the process of transfer into disrepute, which would not be in accordance with the wishes either of the Secretary of State or of Parliament.

A great trust is being given to the Crofters Commission—to act as the principal adviser. In the past, the commission has had a quasi-judicial role, often considering the interests of particular individuals and determining matters such as what to do about a particular crofter's rights in a common grazing, but I do not believe that any equivalent power has been given to it before.

Although the commission's role will be only advisory, it could turn out to be the critical role. It is hard to believe that its advice would be rejected by the Secretary of State. I therefore go firmly on the record as saying that I hope that the Crofters Commission will weigh its decisions in such matters with great care, and in no case rush to judgment.

I do not believe that the Bill need be the prelude to a rapid transfer of title. The initiative ought to come from the communities themselves. As the burdens of ownership are not to be ignored, they will approach the matter with great caution.

I conclude by expressing satisfaction that one of the last matters to come before this Parliament is the consideration of how best to assist the development of these estates, for they lie at the heart of the highland community. Their well-being remains key to the future of parts of our loved country, which is close to the hearts of all who represent it.

Photo of Mr Brian Wilson Mr Brian Wilson , Cunninghame North

The best that can be said of the Bill is that it is harmless. That cannot be said of much of the legislation that goes through the House, so I regard it as something of an achievement. A few small victories have been won in the Government's lifetime against the onward march of privatisation. It is a cause of satisfaction to some of us that two such measures have been in the highlands and islands context. Caledonian MacBrayne remains firmly in the public sector, in spite of three efforts by the Tories to flog it off, as do the highlands and islands estates of the Scottish Office Agriculture, Environment and Fisheries Department.

I well remember that the initial ploy was to privatisation the estates, to sell them on the open market, and to leave it to the fate of that market to decide who ended up owning the estates that were held in trust by the Secretary of State for Scotland. That was repelled. The current Secretary of State returned with other proposals, which are embodied in the Bill.

The crucial element of the Bill is the lack of compulsion. The estates will be sold only if the people who live on them want them to be sold, and they can be sold only to the local community. Those two advances are vast, and they transform the nature of the legislation compared with the original concept in the 1980s. The first comfort is that there is no compulsion, and the second is that there will be no Tories to carry through the legislation. Even in its much muted form, this legislation would be dangerous in the wrong hands. It would be possible for the element of pressure, if not the element of compulsion, to return.

The general rule of thumb for land legislation in the highlands and islands is summed up in the old saying, "The law favours the landlords, because the landlords made the law." That has literally been true for most of Parliament's history, particularly in the other place. However, during one period in its history, that was not the dominant theme. From the 1880s to the 1920s, Governments of all persuasions were compelled to listen to the voices of the people instead of to the voices of the landlords, because of the pressure for land and the pressure from people who were without land.

When we hear rubbish such as that spouted by the Secretary of State in Stornoway a couple of weeks ago about the sacred rights of property, it is worth noting that the crofting system is probably the biggest incursion into the rights of private property for which the House has ever legislated. To an enormous extent, crofting law removed the rights of private landowners, removed the market-led approach to the ownership of land in the highlands, and certainly removed the right of landowners to act capriciously towards tenants whom they had previously evicted at free will and subjected to various other indignities.

The crofting laws changed all that, and did so in response to the pressures from the people who lived on the land. Crofting laws were by no means perfect, for some of the reasons to which I alluded earlier—for instance, they left sporting and mineral rights outside the rights of communities, and large areas of the highlands and islands are not subject to them.

We are dealing with estates owned by the Secretary of State on behalf of the nation and, in debating a Bill dealing specifically with these lands, it would be amiss not to recognise that the only reason the lands are in common ownership today is that landless ex-service men—many of whom were returning from the first world war—were prepared to struggle, to fight and to demand the right to remain on the land, and were not prepared to be driven off to the four winds at the whim of any landlord. It is because they took that stand that the state was obliged to intervene to acquire land in areas where there was great congestion and great demand, but where land was in the ownership of people whose sole interest was to clear as many people as possible from it and to use it for private economic and sporting interests.

It is because ordinary people in the communities stood up to be counted, often physically resisting the forces of landlordism, that the state was obliged to intervene and to bring the estates into public ownership. That is why we have Scottish Office-owned estates to discuss today—because, in the early part of this century, men and women alike were prepared to go to gaol, to physically resist and to say that the rights of common people were greater than the rights of any landowner or Government.

I salute today the people whose struggles created the publicly owned estates in the highlands and islands, and allowed succeeding generations to live on those lands. The only reason there are healthy and lively communities in the crofting areas of Scotland today is that that struggle was engaged in and those rights secured.

One of the problems was that the crofting laws did not cover the whole of the highlands and islands. One score that I would like to see settled while I am still in this House is the omission of the island of Arran from the crofting laws. It is a particular irony that today we have two Ministers on the Front Bench—one by the name of Robertson, and the other by the name of Douglas-Hamilton.

When the crofting laws were introduced in 1886, they included the county of Bute, which at that time included the island of Arran. The only reason why Arran was taken out of the protection of the crofting laws was that there was a Tory Member of Parliament for Bute at that time named Robertson and a landowner—who needs no introduction to the Minister of State—called the Duke of Hamilton. Each of them used his lobbying power in this Chamber and in another place to get Arran excluded from the crofting laws.

The result of that successful piece of vested interest was that, instead of coming within the crofting system—in which case, it would be a different community today—Arran was excluded. Right down to the present day, Arran is run on a feudal basis by some of the most unpleasant and interventionist landlords in Scotland, who constantly use the powers open to them to extract money and to implement feudal power against the people who live on the island.

What a wonderful thing it would be if at least those who are renting on the island of Arran under the smallholders legislation were to be given the status of crofters and the protection of crofting tenancy. The same argument applies in parts of the constituency of the hon. Member for Moray (Mrs. Ewing), where people are rented under the legislation. They are crofters in all but name, but they do not have the protection of the crofting laws. That is one of the elements that will be contained in real crofting reform legislation in the future.

This is only the start. The Secretary of State thought he could pull a publicity stunt by saying that he was addressing the highland land question. What an unlikely thing for a Tory to do—giving crofters the right to buy their own land.

The legislation does not begin to nibble at the highland land question, because it deals only with the publicly owned estates, while the abuses in the highlands and islands take place in the privately owned estates. Once the principle is established that communities can buy their land on a communal basis from the landowner—presumably at 15 times the rental value—no legitimate argument separates publicly owned from privately owned crofting land.

The challenge is to introduce genuine crofting reform legislation as soon as possible, to bring all crofting land under a pan-highlands and islands crofting trust, to extend the area under crofting tenure, to give people the wonderful protection that was created under the Crofters Holdings Act 1886 and to give them all the resources of their own community. That is the way in which to transform the social and economic base of the remoter parts of the highlands and islands.

Photo of Charles Kennedy Charles Kennedy Shadow Spokesperson (Foreign and Commonwealth Affairs) 4:36 pm, 18th March 1997

I have been looking at the Hansard report of Second Reading, which took place at the Scottish Grand Committee meeting in Montrose on 17 February. Here we are today, on 18 March, which goes to show that, where there is a will, and a legislative opportunity, a way can be found to address matters relating to crofting and the crofting counties. Perhaps this sets a useful benchmark for the future in terms of the additional legislation of which many of us would be in favour. The generally supportive spirit in which the legislation has progressed has been notable and welcome.

The Bill itself, however, remains permissive rather than prescriptive, and while that may be the best way in which to structure the legislation, it leaves a lot unsaid, albeit deliberately so. We have had various clarifications—we had a few more this afternoon in response to questioning by my hon. Friend the Member for Caithness and Sutherland (Mr. Maclennan)—about intent and the meaning of words, but such intent and interpretation do not appear in the Bill.

I strongly underscore my hon. Friend's point, that it will be absolutely crucial, for the practical implementation of the Bill, when individual applications appear before the putative crofting trust, whatever shape that may take, that the quality of analysis carried out by the Crofters Commission, and the transparency of the advice given to the Secretary of State of the day, should carry the confidence of the local communities.

My hon. Friend referred to one obvious shortfall being the lack of detail on what constitutes a majority, and how it is to be weighed and recorded. A straight numerical majority, even if one could agree on what constitutes the electorate—does one count the absentee crofters, for example?—would not be a basis on which a crofting trust application could proceed. A 51 to 49 per cent. division of opinion would be absolutely disastrous, and in those circumstances I would be flabbergasted if the commission were to recommend approval.

Equally, in considering the division of opinion in any crofting trust community, it would be right to take into account the age profile of those for and against, because of the longer-term implications. One would also have to take cognisance of the fact that in the longer term, once trust status has been achieved, considerations may arise from the bit-by-bit disposal by the trust itself of some parts of the trust lands.

Assynt has been somewhat of a trail-blazer in that respect: it has disposed of some extremely small marginal bits that have not affected the nature or critical mass of its trust; but suppose some future trust got into financial difficulties because of some of the burdens that it had inherited, and started to realise commercially some of its property—assuming that that was allowable under the deeds drawn up when trust status was achieved—on the open market. Those factors could have far-reaching long-term effects.

In approving this permissive legislation, we are right to place it on record that the devil will be in the detail. It will be important for Members who represent highlands and islands constituencies and the crofting counties generally, as well as the commission, to keep a close eye on applications. We must remember the Scottish Crofters Union's original submission to the Government's consultation paper, which said that the one thing of which we can all be certain is that there is no simple or single solution. It is right that the legislation should be permissive in recognising that reality, but hon. Members must lay down markers for the future.

This legislative event is significant and must be seen in tandem with the discussions and decisions at the last meeting of the Highlands and Islands Convention in Stornoway. The Secretary of State has agreed to set up a working group to consider the wider issues of land reform in the highlands.

An important decision in the other place was reached as a result of a test case over feudal rights and pre-emption rights, involving representatives of the then district councils of Moray and of Ross and Cromarty. One of those events has already had a significant legal impact, which will in due course affect the Bill. The other, depending on future meetings of the convention, could have a significant impact on future legislation.

Now that the issue is up and running legislatively, and in terms of the national debate and of political and parliamentary discussion, I hope that there will be windows of opportunity for further legislation. However, such legislation would be more likely to receive an earlier and more open window, as well as a more sensitive and informed discussion, if it were conducted in a legislative body in Edinburgh rather than in Westminster. The matter would be an early candidate for legislative priority if, after the general election, we achieve a Scottish Parliament. I welcome the Bill as far as it goes, but we have much further to go.

Photo of Margaret Ewing Margaret Ewing , Moray 4:41 pm, 18th March 1997

I will be brief. I spoke on this subject in the Scottish Grand Committee in Montrose, but I did not serve on the Standing Committee, because of other commitments.

The Benches are hardly packed; some might ask where the passion is. I assure hon. Members that nothing arouses greater passions in the highlands and islands of Scotland than land use and ownership. Many hon. Members could recite words from folk songs and poems about the people who were condemned by the black-faced ram and the factor's fire-raiser. After the highland clearances, there had to be radical reforms to enable people to come back to the highlands and islands. Those are the historical roots of the issue.

I welcome the Bill generally, but, like the hon. Member for Ross, Cromarty and Skye (Mr. Kennedy), I think that it is permissive, and that we have to look beyond that. From examining the legislation and reading the comments made both in Committee and elsewhere, it seems that many legal niceties will emerge. It will be like the planning permission arguments that hon. Members often experience, where some people want one attitude to be taken, but others feel that it is wrong. It is a minefield.

When I wrote to the Minister of State, he replied that he did not think that it was a lost opportunity. I think it is, because we could have addressed the argument about the feudal system in the highlands and islands. As has been said, the former councils of Moray and of Ross and Cromarty did much work in trying to resolve some of the difficulties, and a concession was eventually made. Beyond that, the issue of feudal superiority will still apply to many people.

Whoever is in power after the general election, we should take account of what was said at the Highlands and Islands Convention in Stornoway. Neither Front-Bench spokesman was present at the convention, but several hon. Members who are here were. Dr. Jim Hunter, who is much respected, has offered to put together a paper on land use and ownership that should be considered in future legislation. It is not enough to deal with the matter piece by piece; we need a radical approach to crofting, land use and land ownership in Scotland.

The land register that was set up has not reached its conclusion. It was supposed to have done that by this year. It will be another 10 years before we have a full land register in Scotland. In what will probably be my last speech in this Parliament, I have to say that the land issue must be addressed much more seriously by all the political parties. I am proud that my party established a land commission under Professor MacInnes of Aberdeen university, who acted in a neutral capacity and took much evidence from around the country. That is a helpful contribution to the debate. Without land, we can do nothing. We need land and people to build a more secure society; the two go together.

Photo of Mr Raymond Robertson Mr Raymond Robertson , Aberdeen South 4:45 pm, 18th March 1997

Although the issues have had a good airing at the Grand Committee in Montrose, on Second Reading, in Committee and tonight, it is only right that I should respond to some of the points that have been raised.

The hon. Member for Caithness and Sutherland (Mr. Maclennan) talked of the success of the crofting trusts at Assynt and Borve. Their success, with that of Annishadder, has demonstrated that the time is right to offer tenants on the Secretary of State's estate the opportunity to benefit from land ownership.

The response to the Government's consultation paper last year showed that there was considerable potential interest. The Crofting Trusts Advisory Service has commissioned three pilot studies into the feasibility of three possible local trusts. It is too early to say whether that will translate into specific proposals, but there is a growing body of opinion that that is the way forward. We need to be in a position to respond.

The hon. Member for Cunningham, North (Mr. Wilson) said that the legislation might not be used. Perhaps he was thinking of the case of Skye and Raasay, when crofters responded to an earlier initiative in 1990 by deciding that they would prefer to remain tenants of the Secretary of State rather than setting up a crofting trust. He will agree that times have changed, and that there is more interest in the trust option. The setting up of trusts at Assynt and Borve, and at Annishadder in Skye, demonstrates that it is a feasible option for crofting communities.

The hon. Member for Ross, Cromarty and Skye (Mr. Kennedy) wondered whether the Secretary of State's crofting tenants should have a right to buy their estates as a whole. Individual crofters already have a statutory right to buy their crofts. To give crofters a right to buy an estate as a whole would be feasible only if the Bill defined precisely which crofters would enjoy the right, and the sort of body that would have to be formed to take over ownership.

The Government believe that it is preferable for the Bill to allow flexibility, so that different approaches can be tried in different areas. The Bill must allow the Secretary of State the right to refuse proposals from crofting trusts, in order to safeguard crofters' interests—for example, if proposals are judged not to be properly representative of crofting interests.

The hon. Member for Ross, Cromarty and Skye also asked for trusts to be allowed to sell off their land and assets. That will be a matter for the trust. Trusts will no doubt consider carefully the effect of selling or leasing land. The loss of land will need to be weighed against the possible benefits, such as providing a source of money with which to undertake development projects in the interests of the local community.

Moreover, crofting legislation provides protection for the crofting interest, as the land remains in crofting tenure unless the landowner, in this case the trust itself, successfully applies to the Scottish land court to have it resumed. In considering applications for resumption, the court must be persuaded that the resumption is required for some reasonable purpose in relation to the good of a particular croft estate as a whole or of the public interest.

Some Opposition Members asked why the Bill was not being extended to cover privately owned estates.

Photo of Charles Kennedy Charles Kennedy Shadow Spokesperson (Foreign and Commonwealth Affairs)

I am sorry to interrupt, but I should like to raise one point before the Minister moves on. In the example that he cited, the land court and resumption would come into play. It is clear that he sees the potential for longer term difficulties.

Suppose that a crofting trust, through no fault of its own, or perhaps through bad management or a change in personnel between its formation and several years or decades down the track, finds itself facing financial difficulty or perhaps ruin. Things will be very much in the lap of the gods, or at least the judicial gods of the Scottish Land Court. The outcome will depend on whether the court judged such straitjacket financial circumstances as sufficient reason for granting a resumption order.

Let us hope that it would not come to that. No Secretary of State would grant trust status to something that might not be viable. We are taking a slight gamble on some of the applications that will be made in the next few years, because the circumstances could look markedly different a few years down the track.

Photo of Mr Raymond Robertson Mr Raymond Robertson , Aberdeen South

I understand where the hon. Gentleman is coming from, but, as he says, it is difficult to legislate for something that may or may not happen. It is unlikely that my right hon. Friend the Secretary of State would allow any trust to go forward that had not proved itself financially viable not only in the short and medium term but in the long term. I hope that the hon. Gentleman is reassured by that.

The Bill extends to privately owned estates. Its purpose is to enable my right hon. Friend the Secretary of State to dispose of his estates. There is no legal impediment to prevent any private landowner from selling his large crofting trusts if he wishes to do so. It would be wrong for the Government to seek to compel landowners to sell.

There is also the question of land under the control of the Forestry Commission. There is no legal barrier to prevent the commission from disposing of land acquired under the Forestry Acts to a crofting or community trust. Where the land is in crofting tenure and has not been planted, the Government will positively encourage the Forestry Commission to look sympathetically at disposing of the land to a suitable crofting trust.

In the case of existing or newly planted woodland, a number of options could be considered under the Forestry Commission's recent disposal programme and its recently announced extension to the sponsorship arrangements for preferred sales to communities for social and economic development.

The hon. Member for Caithness and Sutherland spoke about the mechanism for ensuring that transfer took place only where there was demonstrable local support. I assume that the hon. Gentleman had it in mind that there should be a ballot, and that a transfer should take place only if there was more than a specified percentage of support.

It is clearly right that there should be substantial support for any crofting trust proposal before it goes ahead. It would be a mistake to write any specific figure into the Bill. Should the figure be a simple majority, say, two thirds, or should 90 per cent. or 99 per cent support be required? Who should vote—those with crofting rights, or all adults? Then there is the problem of absentees. Should crofters who live in Canada or Glasgow, or whose employment takes them away from the croft for most of the year, have a vote? Should the percentage be calculated as a proportion of those who vote or of the electorate as a whole?

Before agreeing to transfer any estate to a crofting trust, my right hon. Friend the Secretary of State must consult the Crofters Commission, which in turn must have regard both to the general interests of the crofting community in the district and to the views of the crofters. That will ensure that these matters are addressed, but it gives more flexibility to take account of local circumstances.

As my noble Friend the Earl of Lindsay made clear in another place, we have no set views on whether a minimum or maximum size of trust will have to be prescribed. A trust must clearly involve more than one croft holding, and, ideally, at least 10 holdings might be desirable, but we will consider each proposal on its merits. Similarly, we have no upper limit in mind. In our view, trusts are particularly suited to local communities, but a trust for larger areas, such as Skye or the Western Isles, could certainly be considered.

The Bill does not prescribe the size or structure of a crofting trust. It is important, as I and my noble Friend have stressed, that any proposal meets the needs of local communities. The Bill offers sufficient flexibility to deal with a variety of local solutions. It would be open to communities to propose trusts which consisted of a whole estate, part of an estate or an aggregation of several estates. The Secretary of State would listen to representations from any crofter on an estate, any part of which was the subject of a proposal to establish a crofting trust.

As for whether all crofters will have to become members of the trust, if, after consultation with the Crofters Commission and due consideration, my right hon. Friend the Secretary of State decides to transfer an estate to a crofting trust, all the land owned by him in that estate will become the property of the trust. However, it will always be possible for an individual crofter to use his statutory right to buy his own croft land from the trust. In addition, depending on the precise type of body established, it might be for individual crofters themselves to decide whether they wish to become members of the trust, although they should all have the opportunity to join.

As for whether trusts will need to be based on townships with common grazings, the idea of common ownership through a trust certainly makes most sense where there are one or more townships with common grazings, and most of the land in my right hon. Friend the Secretary of State's estate would fall into that category. However, we will not rule out a trust based on a series of separate crofts without any township common land if that is what the local crofters want.

On Second Reading, the question of a pan-highlands and islands trust was raised. It is intended that a pan-highlands and islands trust will be a possibility under the provisions of the Bill. Whether such a trust would make sense in practice will depend very much on the nature of the proposal and the extent to which it enjoys sufficient support from the crofters themselves.

The primary purpose of our initiative is to give ownership and control of the crofting estates to the crofters who live on them, and we would have to be satisfied that any pan-highland and islands trust achieved that objective. We would not be interested in a pan-highlands and islands trust if it meant imposing a remote bureaucracy on reluctant crofters.

My noble Friend the Earl of Lindsay met the crofting land trust steering group on 7 February to discuss the consultants' report. The meeting was useful, but it would be premature for the Government to offer a view on the feasibility of a crofting land trust. We are talking here about a report by the consultants to those bodies which commissioned the work, and there is no actual proposal as yet.

Hon. Members asked why the Government should not interfere with the rights of pre-emption, which have been raised throughout our proceedings. If the Government took no action, the transfer of land to a proposed trust could be delayed while the question of any rights of pre-emption was sorted out, or even frustrated, if the inheritors to title decided to exercise their right.

That would create uncertainty, and would be contrary to Government policy, so the Bill abolishes any rights of pre-emption that might exist over the land in the public interest. However, to be fair to the persons who may enjoy such rights, the Government will consider claims for compensation, and the Bill provides a right of appeal to the Scottish Land Court.

Where a particular individual can demonstrate that he or she has a legitimate right of pre-emption, stemming either from the 1919 Act or from the title deeds for the land in question, it is only right and proper for the Government to consider compensation. In considering the amount that might be appropriate, the Government will take account of the circumstances of the case.

Our understanding is that such rights as do exist are simply a right to have first refusal to buy, usually at market value, and it may be that, in the context of crofting land, such a right would have little value. At the end of the day, however, if the person is dissatisfied, it will be for the Scottish Land Court to decide whether a right exists, and the level of compensation that should be paid.

Tracing persons who have a statutory right of pre-emption can be a very lengthy and expensive process, and it will often be simply impossible. That is why the Bill puts a duty on the Government to publicise the transfer, so that any persons who consider that they have a right of pre-emption can lodge a claim for compensation. However, the Government are prepared to give an assurance that they will, in practice, notify any persons whom they think, on the basis of the information available, have a right of pre-emption.

The Bill allows four months for a claim to be lodged. Since all that will be required at this stage is the simple initial notification of a claim, four months would seem to be adequate. Any subsequent discussions between the Government and the parties concerned—for example, to obtain more information in support of their claim—would not be affected by this four-month period.

The Bill places a duty on my right hon. Friend the Secretary of State to advertise the disposal in such a manner as appears to him appropriate. Flexibility is necessary, as the precise arrangement for advertisements will need to be according to the nature of the estate. For example, rather different arrangements may be necessary when a whole estate is purchased than when part of an estate that is still in the same family ownership is involved. Each case will have to be looked at separately in order to identify the best means of advertising for the estate in question.

Unfortunately, there are no established principles for valuing rights of pre-emption that could easily be incorporated into legislation. My right hon. Friend will consider all evidence submitted by claimants in respect of compensation for loss of rights of pre-emption. When agreement cannot be reached between the Government and the person concerned, provision has been made for appeal to the Scottish Land Court, which has considerable experience in dealing with crofting matters. We believe that the court is best placed to consider the facts of the case, and decide on an appropriate sum.

The Bill requires the Secretary of State to consult the Crofters Commission before disposing of any of his crofting property to a particular crofting trust. In giving its advice, the commission is required to have regard to the general interests of the crofting community in the district in question, the views of crofters in that district, and any other matters it considers to be relevant.

That gives the commission an important role, which is entirely right, given its position as statutory adviser to the Secretary of State on crofting matters and its knowledge and expertise. My right hon. Friend will therefore wish to give careful consideration to the views of the commission, but, at the end of the day, the Secretary of State must have the discretion to make the decision that he thinks is right.

During the debate, it was asked whether the Crofters Commission would be required to hold a ballot of those crofters who are affected before giving its advice on their views. That will be entirely a matter for the commission, which has a great deal of experience of consulting crofting communities in the course of its day-to-day work.

The Crofting Trusts Advisory Service was set up to provide advice to crofting communities interested in establishing trusts on public or private estates. It is doing valuable work in providing that assistance. Advice of the sort it offers will be vital to those who wish to take advantage of the provisions of the Bill to establish trusts on former Scottish Office estates. The longer-term future of CTAS will be decided in the light of developments following the successful passage of the Bill.

Iain MacAskill, chairman of the Crofters Commission, has made it clear that the commission has taken no position on the relative merits of different trusts. The commission has provided advice to successive Secretaries of State for four decades, and is well-placed to ensure that the interests of the crofting community and the views of crofters are properly represented in advice given to the Secretary of State. We see no need, therefore, for any additional body with the inevitable additional bureaucracy and resources that it would require.

The Bill will provide the necessary powers to put into effect my right hon. Friend's crofting trusts initiative. The initiative has received widespread support from all parties in the House, which support was shown on Second Reading in the sitting of the Scottish Grand Committee in Montrose, in Committee, and today on Third Reading and Report.

The Bill will allow my right hon. Friend the Secretary of State, following consultation with the Crofters Commission, to transfer his crofting estates to bodies that are representative of the crofting interests in the property. It will allow my right hon. Friend to provide financial assistance towards the costs involved in establishing such a body. The Bill also ensures that any rights of pre-emption over the property are extinguished and makes provision for compensation to be paid in appropriate cases. This is a sound measure, which will devolve real responsibility to local communities to take decisions on the future of the land on which they live and work.

Question put and agreed to.

Bill read the Third time, and passed, with amendments.