Crofting consultation provides patches for symptoms instead of tackling the root causes
(Our full consultation response is available here)
SCF appreciates the opportunity to provide feedback on the proposal for crofting law reform. Unfortunately, the proposal does not substantially address the root cause of the most pressing problems the current system faces, namely: the escalating market in crofts and crofting tenancies leading to a lack of affordable access to land for young people, putting the sustainability and resilience of crofting communities at risk. As such, SCF is unable to fully endorse the current proposal. While some of the technical changes are sensible and to be welcomed, overall, the reform is missing the point. Sixteen years after the Shucksmith report has been published, no meaningful crofting law reform is in sight.
In its opening paragraph, the consultation document acknowledges the detrimental impact that the free market has had on the capacity for many younger people from crofting communities to enter crofting. Yet, it only proposes some minor legislative tinkering as a means of addressing this problem, with no credible evidence to support the respective proposals. Further, and even more worryingly, it makes other proposals that will be detrimental to crofting and crofters, since they reinforce the market dynamics within the crofting system. Meanwhile, a serious examination of the major structural faults of the system has been omitted.
Access to crofts / entry to crofting
According to the ministerial foreword, the draft Bill proposes ‘significant innovations regarding entry to crofting’. The two measures aimed at facilitating access to crofts for new entrants are the introduction of joint tenancies (question 1.1) and changes to enable standard securities over croft land (questions 1.2 to 1.6).
While the former measure may not achieve a lot in terms of enabling access to crofts for younger, less affluent new entrants, the latter is potentially counterproductive: Facilitating commercial lending simply reinforces the market system and may increase the cost of entry, since those with the deepest pockets will more easily be able to access the respective loans. Even if the proposed solution helps some new entrants to get hold of a croft, their resources will be expended on paying for the cost of entry, rather than developing a meaningful crofting enterprise. Generally, it is to be doubted whether introducing a standard security would change anything at all, given that commercial lenders shy away from lending on croft land, even in cases of owner-occupiers or crofting landlords who hold full title over the land (See Scottish Land Commission: Benefits and Barriers to Affordable Tenanted Croft Housing, p10).
The real obstacle for young new entrants to crofting is the unregulated, and increasingly escalating land market. A tenant crofter has a statutory right to buy their croft for fifteen times the annual rent with the annual rent typically being less than £ 100. This means that a tenant can buy their croft at a few hundred, maximum a few thousand pounds, and subsequently sell it on the open market for hundreds of thousands, putting it out of reach for most people. This is not to say that everyone able to afford a croft at those prices has no genuine interest in crofting, but for the people the Scottish government allegedly seeks to provide solutions, namely the many young people from existing crofting communities, land prices are a significant barrier.
To meaningfully address the price hikes in croft land, instead of further fueling an overheated market, the Scottish Government should contemplate how a) the creation of new tenanted crofts – with a restriction on the right to buy – could be incentivised and facilitated, for example within the current land reform bill, and b) the assignation process of tenancies can ensure that those to whom the tenancy is assigned are genuinely intending to actively work the croft, or c) consider providing a government backed loan facility for which the criteria could be set by the government.
With regards to assignation and ensuring the tenancies are assigned to those genuinely interested in crofting, unfortunately, the proposal suggests quite the opposite: Instead of checking at the time of assignation, this only will happen long after the croft has changed hands, which will make it more difficult and onerous to intervene if the croft is not being used for crofting.
Another proposal that may exacerbate rather than mitigate the problem of lacking access to croft land is the proposal that a crofter does not have to maintain their croft personally, but instead could let other people do so on their behalf (question 4.2). This could not only lead to outcomes where people will hold on to their crofts while unable or unwilling to cultivate them – instead of passing them on to someone who would – but also may incentivise informal, potentially exploitative arrangements such as absentee crofters letting young people work their crofts without payment, waiting for the crofter to eventually pass on the croft in return but with the crofter having no intention of doing so.
Crofting regulation / assignations
The consultation paper suggests that there should be very little regulation on assigning croft tenancies in the new legislation because the assignation process currently does not have much impact on who gets the croft anyway (question 5.1 and 5.5). However, making such a concession will again reinforce the open market in crofting given that there will be even less scrutiny of croft entry: Croft tenancies may be taken on without the intent of ever complying with the duties to live on (or near) the croft and work the land.
It is argued in the consultation paper that instead of scrutinising the applicants at the time of transfer, a ‘post-transfer check’ after two years should be applied to a percentage of new assignees to ensure that they are compliant with their duties to live near and cultivate their croft – which they are required to do by law anyway, regardless of whether the croft has been assigned just recently or anytime in the past. We therefore object to removing the requirement of prior approval through the Crofting Commission.
Some of the rationale for the Crofting Commission not overseeing assignations is premised on the view that there is little evidence in advance as to whether an individual will fulfil crofting duties, and that this can be better assessed after two years on the croft. We do not, however, think that this approach is helpful: It is not apparent what happens if a check is made, and the duties are not adhered to. Will croft tenancy status automatically be rescinded, or will non-compliant tenants – who potentially never had the intention to croft in the first place – have the benefits allowed by the duties process which is there all along anyway? In the latter case tenants will have ample time to find ways to comply with their duties while not actually intending to ever maintain the croft themselves – for example by simply subletting their croft to others. Further, if the standard security provision has enabled the respective tenants to take on a loan over their croft land (as per the proposal on standard securities), it will be even more difficult to revoke an assignation.
Moreover, the ‘post-transfer’ check does not seem to apply to owner-occupiers. SCF has previously proposed, and continues to do so, that owner-occupiers should need to seek approval of the Crofting Commission upon acquiring ownership of their croft to secure crofter status (and would be required to install a tenancy in case approval is not granted). Conversely, with the current proposal, there will be minimal oversight on croft transfers in any case – regardless of the croft being tenanted or owner-occupied, as long as the individual in question does not hold three other crofts already (which is in itself an impractical criterion given that one individual croft can range from one to hundreds of acres in size). Hence, we would strongly urge that any transfer of owner-occupier status will have to be subject to prior checks on approval of the Commission, just as it is presently the case with the assignation of tenancies (question 5.2 and 5.5).
The proposal deceptively gives the impression that crofting duties are the only matter of substance that the Commission must consider and that it cannot really do this until two years after a croft has been transferred. That appears to dismiss some other important elements that the Commission is currently required to consider in theory when deciding over assignations such as:
- The interests of the crofting community in the locality of that land;
- The sustainable development of that community;
- The interests of the public at large;
- Any objections from the landlord; any objections from members of the crofting community, including the grazings committee where the land or part of it is common grazings; any objections from anyone the Commission consider has a relevant interest in the application.
- Any approved Commission Plan and any other matter the Commission consider relevant.
The new proposals would appear to eliminate these requirements introduced to ensure better crofting regulation, simply on the basis that the Crofting Commission appears not to apply them anyway. Noticeably, the interest of the estate will generally still be considered as a landlord will retain the right to object. However, it is not clear how the interests of a crofting community will be considered as there will no longer be any right for a member of the crofting community or a grazings committee to object. Hence what is proposed now will entail minimal regulation of croft transfers and is contrary to the aspirations of the 2010 Act which followed on from the Crofting Inquiry to ensure the better regulation of crofting.
We welcome the intent to enforce breaches of duties more stringently and we do acknowledge the significant workload of the Crofting Commission and the general pressure on the public purse. We also understand the desire to make procedures more efficient, however, we do not think that crofting law reform should be mainly guided with a view to maximising efficiency, if this comes at the cost of a heightened risk for crofters and crofting communities to face further unsustainable and unjust outcomes. A proposal of this nature should not be contemplated in isolation, particularly when there is no serious consideration of controlling how the market impacts upon crofting. Until that is done there should be no alteration to the croft assignation process.
Points where we see potential improvements
There are several proposals in the consultation which we do support because they either address known issues with the legislation or introduce changes that will strengthen current legislation in a way that benefits crofting or simplify/modernise administration procedures for the benefit of all.
These include:
- proposals to expand who can report a breach of duties
- changes that allow for the Crofting Commission to determine which methods can be used to serve a public notice
- changes to allow for public meetings to be held online/hybrid
- all of the proposals under section 3 – Use of Common Grazings
- the change that allows for streamlining of the breach of duties process when a crofter has volunteered the information that they are in breach
- that only natural persons can be an owner occupier crofter
- that sublets can be terminated by the Commission if the subtenant is not meeting their statutory duties
- all the proposals allowing the Commission and Registers of Scotland the ability to make corrections when a clear error has been made, or all parties agree that the change is required
- all proposals which strengthen the Commission’s powers in relation to Decrofting and Sanctions (questions 5.9 to 5.13)
- Most of the proposals under Simplifying Crofting other than 6.2 as this places extra onus on the crofter for no significant improvement as the landlord can review the application when it is advertised, and 6.5 where we agree in principle but have concerns that this may inadvertently end up lengthening the duties process whereas the overall aim of the bill changes is to shorten it.
Regarding the questions about the members of the Crofting Commission, we have no strong view about the number of Commissioners, it is difficult to determine what the split between elected and appointed should reasonably be without a fuller discussion on the intended purpose of the Commissioners. We would suggest that any review of the number should include a proper review of the constituencies as they currently are not representative of the number of crofters in each area. The question about a maximum number of terms for an elected Commissioner would potentially depend on all of the above.
(Our full consultation response is available here)