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Crofting (Amendment) (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament on 6th June 2013.

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Photo of Paul Wheelhouse Paul Wheelhouse Scottish National Party

It is a well-known fact that crofting tenure forms an important part of our environmental, cultural and social heritage and that crofting traditions are close to the hearts of so many. As a consequence, the topic of crofting often inspires emotion and debate, and the Crofting (Amendment) (Scotland) Bill is no exception, even though there is general agreement on its purpose.

Those involved in crofting will know that the Crofters (Scotland) Act 1993 has already been amended by the Crofting Reform etc Act 2007 and the Crofting Reform (Scotland) Act 2010. We are now seeking to amend it further through the Crofting (Amendment) (Scotland) Bill, but for very good reasons.

I am sure that those involved in the introduction of the 2010 act did not imagine for one moment that we would be here today addressing an unintended consequence of it, but crofting legislation is renowned for its complexities—as minister with responsibility for crofting, I can certainly vouch for that.

As many members know, the issue is with the provisions allowing crofters to apply to decroft land. The 2010 act was intended to allow decrofting by both tenant and owner-occupier crofters, but legal advice received by the Crofting Commission said that, in fact, the act does not provide for decrofting by owner-occupier crofters. Therefore, on 25 February this year, the commission announced that it could not accept any further decrofting applications from owner-occupier crofters.

When the flaw in the legislation was identified, there was widespread support for solving the problem, and solving it quickly. The Scottish Government listened to the concerns raised. It then took swift action to bring forward this bill to ensure, first, that owner-occupier crofters could once again apply to the Crofting Commission to decroft their land and, secondly, that the direct impact on those affected would be addressed as quickly as possible.

As I indicated to Parliament on 28 March this year, there are known examples of people being negatively affected by the flaw in the legislation. Some are unable to start building their houses until the land is decrofted, and deadlines for completion are approaching because of time-limited planning consent. Others are unable to decroft to increase the size of their house site to provide sufficient garden ground. A young crofter is unable to proceed with acquiring part of an owner-occupier crofter’s croft because of the uncertainty around being able to decroft part of his new croft to build a house. A young crofting couple who are planning to start a family are unable to decroft a house site to sell in order to finance a larger house while remaining on the original croft. Those are just a few examples of real people being directly affected by this decrofting issue.

This bill, once enacted, will provide a solution for those people and many more in similar circumstances. That solution is required urgently to ensure that owner-occupier crofters are given similar rights and are treated in a similar way to tenant crofters and landlords.

Before I go into the detail of the bill, I welcome the Rural Affairs, Climate Change and Environment Committee’s stage 1 report, which was published on Friday 31 May. I congratulate the committee on its thorough consideration of all the issues raised. Bringing forward legislation quickly does not mean that parliamentary scrutiny should be compromised. In fact, I place enormous importance on both stakeholder engagement and parliamentary scrutiny. For that reason, in a moment, I will cover the main issues raised in the committee’s stage 1 report.

The Scottish Government has taken time carefully to consider the best way forward and has produced a bill that meets the key aim of allowing owner-occupier crofters to apply to the Crofting Commission to decroft. That aim attracted widespread support during stage 1. The original intention in the 2010 act was to align decrofting by owner-occupier crofters with decrofting by landlords, which comes under the vacant croft provisions in section 23 of the 1993 act. However, that intention does not work because of section 23(10) of the 1993 act, which provides that, if a croft is occupied by an owner-occupier crofter, it is not vacant. The existing legislation does not work as intended.

The bill will remove decrofting by owner-occupier crofters from the vacant croft provisions and insert new stand-alone sections 24A to 24D into the 1993 act. Some people have suggested retaining the link between owner-occupier decrofting and the vacant croft provisions, even when the croft is not vacant. However, in the Scottish Government’s opinion, the new provisions that we propose will provide a greater degree of clarity and legal certainty.

The bill sets out what the Crofting Commission can do when it receives an application to decroft. The commission can of course grant or refuse the decrofting application. However, if the Crofting Commission is already taking action against the applicant for a breach of crofting duty, the bill provides for the commission not to consider the decrofting application in the meantime. That mirrors the equivalent rules for landlords of vacant crofts.

Section 25 of the 1993 act sets out the matters that the commission must take into account when determining a decrofting application. The bill will apply most of section 25 to owner-occupier crofters in as similar as possible a way to how it applies to tenant crofters and landlords. However, the bill purposely leaves out the provisions in section 25 that relate only to tenants, such as the provisions relating to a crofter’s right to buy.

The bill will also extend to owner-occupier crofters the existing right of a tenant crofter to decroft the site of the dwelling-house, where they have not already decrofted a house site. There was of course a question over what to do with the 159 decrofting directions that were already issued by the commission and—I can update Parliament on this—the 44 applications that are currently held in abeyance. The observant will have noticed that the figures have changed slightly from the earlier announcement in Parliament on 28 March—the number of outstanding applications has reduced from 50 to 44 as a result of checks undertaken by the Crofting Commission at our request, which have verified that six of the outstanding applications did not in fact relate to owner-occupier crofters.

I turn now to the issue of retrospection. In the bill, the Scottish Government has proposed retrospective provisions that will allow the legislation to apply to cases from 1 October 2011, when the definition of owner-occupier crofter was introduced. The provisions will place those involved in the 159 cases where they expected to be—and, crucially, where Parliament intended them to be—and will allow the 44 outstanding applications to be fully processed as soon as the bill comes into force.

The bill will also make consequential modifications to the 1993 and 2010 acts, as a result of new sections 24A to 24D, mainly by adding cross-references to the new provisions. The consequential modifications will ensure that the new provisions work as intended alongside the existing legislation. That is an important safeguard.