 Welcome everyone to the ninth meeting in 2016 of the Rural Economy and Connectivity Committee. Everyone is reminded pleased to switch off their mobile phones. No apologies have been received from any member of the committee. Today, we have our second evidence session reviewing legislative priorities for crofting. As I mentioned last week, we are conscious that there are some very contentious issues in the crofting world at the moment that are being discussed in the media and elsewhere at the present time. I want to stress that the committee does not want to stray into these specific areas and I would urge committee members and witnesses to focus on the legislative process, please, rather than the individuals. I would like to welcome the witness panel, Sir Crispin Agnew, Eddie Ross McLennan and Derek Flynn. Thank you for coming and could I ask you all if you'd like to make a brief introductory statement and Sir Crispin, if you'd like to lead off, please? I've been taking this point for a number of times and years and that is that the crofting legislation is not fit for purpose because it does not have an underlying policy theme which is appropriate for the present day and age. You must remember that the Act started in 1886 which was to provide subsistence farming tenants with security of tenure, a fair rent, compensation when they gave up the land and rights of succession. That security for subsistence farmers underlies the whole Act and we are trying to apply it these days in circumstances where that is rarely no longer appropriate. On to that Act have been tagged various different policies that have taken Parliament at different times and so we have conflicts throughout the Act between one policy regime and another policy regime which are very difficult to reconcile and equally if the land court is trying to interpret the legislation against the policy background they have those conflicts which make it very difficult. So I think if there's going to be any reform somebody has to sit down and think what is the policy which we are trying to achieve in the crofting context. The other problem is that crofting is looked at on its own. We are sitting here talking about reform of crofting legislation. We had the Shucksmith report that looked at it and a whole host of others but crofting sits within the policies that are required by the Highlands and Islands. Often they are in conflict. Often they don't work together and I think that if we are going to have any legislation it should rarely apply to the whole of the area to which it is being applied and not have the random situation where this is a croft an identical land holding next door is not a croft and they're under totally different regimes and so I think there needs to be a co-ordination of not only policy for the crofting acts but also policy for how the crofting acts fits in out to the wider policy of the area and I think that that really is the fundamental problem and it's led to the current current crofting acts becoming extremely complicated, unwieldly and difficult to interpret and apply. For example the 1955 act when crofting was started again in the Highlands on a different basis from the small land holders acts which still applies in the rest of Scotland had 40 sections. The 1993 act when it came in and consolidated the 1961 and the 76 act with the 55 had 64 sections and it extended to 72 pages. The 1993 act is now 125 sections most of which are two or three times the length they were originally and extends to 196 pages so you know that's just an explosion of the complexity. Derek Flynn has worked with the crofting law group to produce the sump I don't think we really want to get into the sump because that is just detailing problems with different sections, statutory inconsistencies and all that sort of thing. So yes that you know that is a particular problem with the current act but I think you need really to look at the matter in greater detail. I wrote a paper which was published in Northern Scotland which is a peer review journal published by the Edinburgh University Press called Crofting a Clean Slate and that was published in the 2015 journal and that really sets out my views on the historical problems which have led us to where we are now and my suggestion about a clean state and the doubt of the committee wants to get a copy of that it does have certain obviously copyright implications for us it's been published in a journal and I've lost the copyright but that sets out my views. Just to give a couple of sort of examples of complexity we have a crofter an owner-occupier crofter who is defined in a way that doesn't work and you can end up with owners who are occupying their crofts all of whom are under different regimes why not just have anybody who occupies a croft is governed by the rules and regulations. A case I've been involved in in the land court where the owner of a croft the owner occupier of a vacant croft got planning permission for 10 houses which was consistent with the local development plan the island council's policy for that area the crofting commission quite rightly on their interpretation of their obligations under the Crofting Act refused to be crafted because there were four people who wanted that land for vegetable growing. Now that's where the Crofting Act was applying its policies quite properly but it was in conflict with really the wider local policy considerations. Another problem is that there's no incentive for landowners and the whole Crofting Act is written on the basis of the definition that a crofter is the tenant of a croft. Now when you get five per year from the croft it costs more than that to recover the five quid and so landlords in a way have no interest in being the landlord of a croft and this I think is something that's of particular importance now that we're having community rights to buy crofting community rights to buy and so on what should the proper relationship be between the land owner and the crofter particularly in that sort of community context. I was involved in a sorry can I stop you there because that's actually a pretty key point and some of the points that you're bringing up are actually going to form part of the questioning that we do and actually illustrating them with cases and examples it's extremely helpful but I think may without taking away from what you're saying be more helpful as we raise the questions so could I stop you there if I may and maybe ask Derek if you'd like to to make a short statement because again I really want to try and develop the questions as I'm sure the committee will with specific examples. Let's finish up with this one last example of a case I was involved in relative recently which dealt with the breakup of a farm in 1910 where the landowner was delighted that it should be broken up into three crofts because the rent from the three crofts was more than the rent he was getting from the farm whereas nowadays agricultural rents are at a totally different level from crofting rents and it's just part of the example of why we've moved into things that are no longer right for this day and age. Thank you very much Derek can I ask you to thank you I'm a retired lawyer I've been retired eight years I worked as a crofting lawyer and in the middle of the period that I worked we had a consolidation of the crofting acts it seemed to me to be a lazy consolidation because it just caught everything that was there and the problems remained and the problems have remained really until relatively recently. It's also complicated that the last times when Crispin and I sat here we were talking about an amendment, a surprise amendment that had to be made and we were asked if there were any other matters that should be given attention and from somewhere I produced the word sump that we needed to put all our problems in one place and somebody should look at them well that somebody turned out to be myself and Keith Graham the retired principal clerk of the land court we were in the middle getting towards the end of writing a textbook on current crofting law the sump took about a year to produce and we were surprised by the number of responses we got by all kinds of stakeholders and it showed that there was an interest in getting things right out there but it was beyond most people to see how it might be done the sump took a year the textbook that I have finished the proof stuff with Keith this week took 10 years and so there will be a working paper to try to explain what the current law is without making many complaints about it and that will be published at the turn of the year I believe there is a fairly simple crofting code there I'm not quite of the same mind as Crispin although I agree that this has been seen as part of agricultural law in fact it was a law that was to protect people that were immobile and really produced for their own consumption and it is that aspect which we have been seeing the law emphasizing recently by saying that people must be living close by their crops or on their crops and should be looking after them looking after the land we've gone through a period when diversification was was to be seen to be a good thing agricultural production may not be the best use of the land but the protection and the understanding of the people on the land as to how the system works has been lost because it's got very complicated but people on the land I do hear people complaining about the amount of regulation but we really have to pin down what they're complaining about when we talk to crofters quite often they see no difference between the commission and the federation which is the union and the department who get involved in their grants they see no difference it's all authority and they don't like authority but someone has to keep a record of what we're talking about and I think we have made great strides by getting a map base register in place now that's something that we called for for 20 30 years and we're finally getting that into place one of the complaints just now is that while crofters have to map their crofts and pay the fees and do all the work there was a promise that the commission would deal with the common grazings and recently they've been writing to say they've got no money to do it they're not doing it then anymore but crofters still have to map their boundaries and without knowing what we're talking about without knowing the land that's involved in the system it's very difficult I think to deal with it you know people are arguing about boundaries they waste a lot of time and money getting a solution because they have to go to law but if there's a good register then that should make life easier is that a place to stop I mean because yes again the registering and recording of of crofts is important and I mean I've read the SUMP report it took me a fair while to read it and understand it not a year but it was extremely informative and I know the other committee members will have done the same so I know there'll be questions on that so Derek you're happy and maybe I'll bring in there to to have a short flavour of your views yeah well good morning everybody I'll try and keep it short as you say convener I would endorse generally what Sir Crispin and Derek have said I think there is broad agreement within the crofting legal community not only that something has to be done but actually on what it is that has to be done all of us have our own little hobby horses as you might expect but but there does seem to be general agreement particularly on the question of the as as Derek has described it in the SUMP the impenetrability of the legislation so I mean I've gone into some detail about that impenetrability well Derek has and Keith in the SUMP report itself but also in my written submission to the committee so I'm not going to sort of rehash that here my other particular concern at the moment while two concerns really are first of all the huge problems that are being caused not just for solicitors but for crofters and specifically for owner-occupier crofters caused by the problems in the legislation around the definition of owner-occupier crofters and I don't think that will come as a surprise to anybody that's a huge problem and because it's legally complex it ends up costing crofters an awful lot more money than it should do so the other and the other point actually was which I've sort of been talking about for quite while is is the question of funding and that's not just sort of funding for agricultural improvements or funding for new croft houses both of which are very welcome but actually funding to I suppose free up the market in in croft tendencies or to sort of make it fairer I suppose rather than free it up because at the moment you must be a cash purchaser to buy a croft and that seems to me very unfair so I'll um I think I'll I mean at least you want me to go into any more detail about the specific points do you want me just to leave that there I'm very happy for you to leave at that because you you did actually give a very uh fulsome uh contribution which the committee have had and for which I'm grateful of um it was very detailed and and thank you it kept me busy for a while so I'm sure it would have run us um so if I if I may we we have some questions and uh the first question is going to come from gal ross the deputy convener thank you convener and welcome thanks for coming along and thank you for three excellent introductory speeches I feel that we learned quite a lot about that before we even go into the question and session um I'm going to start with um a couple of questions on the crofting commission bearing in mind um what the convener mentioned at the outset about not going into the specifics of what's happening at the moment but to touch on the changes in the 2010 act from the crofters commission to the crofting commission I think was obviously quite a significant change and you'll be aware that we took some evidence to the committee last week um and three main points I think to bring up at the moment Patrick Kraus from SCF argued that there needs to be a review of the functions of the crofting commission and there should be a more devolved system for regulating crofting um Peter Peacock of Community Land Scotland stated there's a clear gap on crofting development which actually now rests with HIE and others agreed that more needs to be done in terms of development and indeed Eileen in her written evidence today urges us to consider whether the commission once again should be appointed rather than elected um which is also an interesting point indeed so I think I'd just like to ask what your views are about the changes to the role of the crofting commission and the name in the 2010 act um especially in respect of whether there should be a review of the crofting commission um with a view to creating a more devolved system for regulation the function to develop crofting and what your view is on elected commissioners um and also as a follow-up is the current structure of the crofting commission right as it is now so that's a huge question which you'll need a moment just to gather your brains on what I'd like to do is if you would like to lead off rather than me trying to uh point at somebody and say right you you're up first if you if you do you've got a point to start off with very happy to take you in whichever order to start so Derek your hand came up first thank you the the arrival of elected commissioners came at a time when the function of the commission was to regulate and I think few of the elected commissioners could have expected what they were to do was simply to read the act and try and find out what it said and then do it there was very little handover in my my experience because I was involved in helping the new commission read the act to see what they were supposed to be doing things had changed in the law and we had to look very closely at the wording of the act to understand what the commission's powers were or what they were their duties were and the number of different words that were given to the commission's functions was astounding when we went through the act so the commission had this new commission of elected strangers had to sit down and figure out what they were to do and and it's meant that they they got off to a slow start the sorry I'm trying to catch what the the development function at a time when crafting was allowed to expand by new areas being taken in to crafting or the potential of crafts being in new areas there was nobody looking at the possibility of new crafts in these areas nobody at all because the development function such as it was was moved to hie who were only looking at existing crafting communities and only a small proportion of them so developing crafting as something new and attractive fell on stony ground and those outside who are wanting in have found nobody to help them Sir Crispin I was very concerned constitutionally when commissioners were first elected because under the current acts the commission is a tribunal therefore it's part of the court system and as far as I was aware this was the first court with elected judges in Scotland and I thought there were profound constitutional issues arising from that we were going down the American route of electing judges now there's currently a consultation to stop the commission being a tribunal and if that goes through that will take away that particular concern all the local authorities are elected and they make policies they regulate particularly in planning they have all sorts of enforcement powers and so on which are taken by elected officials so if one takes away the fact that it's a tribunal then we have democratically elected institutions to regulate functions and so on so that's perhaps acceptable what does cause me concern is the separation of regulation and development because in a way this goes back to what's the overarching policy because if the policy is to achieve development then the way you develop is linked to the way you regulate and I think it's very difficult to separate separate the two so that's my sort of general view on on that there were various other parts of the question which I've in a way forgotten but I think that's what I particularly wanted to say okay it won't come back if she hasn't got all the answers she needs but we could bring it early in at this stage okay well I think the first part of the question I think I understood to be should there be a review of the current crofting commission arrangements and I I think that yes there should be and in fact I my own view is that that's the one part of of any reform of crofting legislation that should be prioritised I think part of the problem with the last reforms and particularly the one in 2013 seemed to be that there was such a huge rush to get it done and I'm not sure that that always results in the best bit of legislation at the end of it so I think probably the the idea of of taking our time to reform the main body of crofting law is a good idea and to sort of work out exactly what we want to do and take the time to do it carefully but actually in terms of the crofting commission the trouble is that you know I think regulations have already been put before parliament actually for the the next the next elections which are to happen in the spring time so you know that's all cracking on and you know that any new elected commission are then going to be in place for another five years so you know changing that I think is going to be tricky once you have elected people for five years so that sort of then kicks that into the long grass once the once the new commissioners have been elected so generally yes I think there should be a review the second part of the question was I think about the devolved decision making of the commission and I think what was discussed at last week's evidence session was that there would be and I think something that the SCF are very much in favour of is sort of local bodies taking decisions locally and this was something that the Shuxmith report looked at you know back in 2008 from memory and at that time I was of the view that probably more devolution of these decisions was not favourable and I still am of that opinion now that the crofting commission is sort of all things to all crofters if you like and it's a whole lot easier to direct any sort of I suppose discomfort that you might have with any decision regulatory decision that's being made that's much much easier if they are government officials based in Inverness that you never have to see when you drop your kids off at school for example but if the people that you're seeing in your daily life in small crofting communities you know where things can actually become quite politicised quite quite quickly I think that because I personally wouldn't like to see that but actually what might be worth thinking about is the the system of area assessors which I mean the commission have long had area assessors and they have always been the sort of commissions eyes and ears on the ground and it strikes me that there might be a sort of some kind of compromise to be struck there where you have an enhanced role of those area assessors with enhanced accountability that way but actually the decisions are still being taken by the commission officials in Inverness and the third part of the question was about the elected commission and I mean obviously I've made my position on that very clear in my written submission it's very difficult for me to give any sort of more specific information about that because I did act for the commission previously and in fact I acted for the crofters commission before them as well so I'm sort of understandably limited in what more I can say but it does seem to me that generally speaking when the law was reformed in 2010 there was dissatisfaction that the commission wasn't doing enough to for example regulate absentee crofters it was thought generally that the commission should be doing more to regulate crofting there should be tighter regulation but instead of you know so what could have happened is that the law was changed to say instead of the commission having a choice to regulate which was the position before 2010 the law could have simply been changed to say the commission must regulate but actually what's happened is the law was changed to say the commission must regulate but also by the way you know we think that they should also be elected so in a sense the baby was thrown out with the bath water at that point because actually if you'd kept the old structure of commission but given them an enhanced push to regulate that might have had the effect of meeting that desire that people were expressing for tighter regulation but without the huge upheaval and that it has been a huge upheaval that the new structure of the commission has caused. One of the points you've brought up there about the election of the new commissioners will be the committee will definitely bear that in mind when the cabinet secretary comes in with the statutory instrument to ask me about that. Sir Crispin, I know that you want to come back in but Stuart and Rhoda and John are queuing up. Can I just see if I can get Stuart in and maybe give you the first chance to answer which may weave in your point as well? Thank you very much, convener. I just wanted to pick up on particularly what both Derek Flynn and Sir Crispin said in relation to the understanding the elected members of the commission have of what their role is. Sir Crispin referred to the quasi-judicial role and I'm not going to address that. I just wanted to be clear whether there was a clear distinction in the witnesses' mind over the need for members to understand whether they are executives of the commission, in other words managing the day-to-day activities and taking responsibility in a line management sense or non-executives whose role I would characterise as appointing and removing senior members' managers in the organisation, approving the policies of the managers of the organisation and bringing forward policy proposals to be developed and implemented by the managers. Is there that opportunity for there being a clear distinction for those who are elected who are not required to have any particular experience to bring other than the experience of being crofters? Is that part of what underlies what I think I will stretch the boundaries by describing as a rather dysfunctional board? Sir Crispin will lead off. The Crafting Commission now regulates. The decisions have to be made by the commissioners and at the moment they are acting as a tribunal in the nature of a court. If that is taken away they have to act quasi-judicially rather like an elected local authority making decisions about various aspects. So they are not there in a sort of non-executive role. They are there, they have to make the decisions. At some levels it is a decision whether A can take over a croft. Other decisions are at the policy levels but the policies have to relate to their regulatory function. So they might have a broad policy as to the sort of person they would accept as a new tenant of a croft. I think the chief executive is probably there to manage the staff but the staff are there to serve the commissioners and to provide them with the necessary information and so on. But they are not there in a non-executive role. Every decision or perhaps every important decision has to be made by the commissioners. They might delegate a certain, some of the more minor ones to the officials but it is their decisions. Sometimes they delegate it to one commissioner, sometimes they take the matter to the whole board but I think you have got to be very careful. I will come back on that. Having spent 30 years working for the Bank of Scotland not on the board but often present, the board is wholly non-executive. Nonetheless, they had the final approval of the major lending decisions but they had no role in developing them, writing them or the material. The decision was there and they were non-executives. Is that not the parallel that we should see in the way that the commission works? The responsibility for the proposals, the detail, ensuring that it is legally compliant that is put before the decision makers, is a management role but the decision itself is one that can properly be made by people who have no management function. They are non-executives, they carry responsibility for the decisions but they are not executives. Am I missing the point in the way that this does or should, and I make that distinction, work? My understanding is that somebody decides to assign his croft to somebody else, not to get the consent of the commission. If it has to be advertised, if there are objections, there is a hearing at which it is conducted by one commissioner with staff. The commissioner then reports back to the board. It is the one commissioner in a way is reporting back and taking the function. It is not a member of staff who is sent out to hear the evidence and then he makes a recommendation to the board which is rubber stamped. I think that if it is going to be a regulatory function, then it must be taken by those who are the regulators, whether they delegate to one person, to three persons or the whole board. If you are into development and that sort of thing and running it more as a local authority, if you like doing development policy and all the rest, then perhaps you will have more what you are describing as the non-executive rubber stamping, the policy which is really being implemented at the local level and so on. But it is part of the clash of policies which is the point I wanted to pick up. The drive for local ownership and then you have centralized regulation takes out the UST which is now a community company with, forget how many crofting townships in it, they are probably about five or six. They might have an overall policy that they would like to apply within their area, but it has all been dealt with in Inverness. This is why I said one needs to, again, to think what the relationship is to be with the land owner and the commissioner. I want to add something briefly to that. I am only conscious at the time and we are on question 1 and we are a quarter of the way through the timing session. I would make, hopefully briefly, that the staff almost looked at the commissioners there making the decision, but with this commission it was the same personnel as the previous commission which the Shoxmouth reporter sought to disband. I think that there was drift into personalities. I beg a pardon. On the committee of inquiry on crofting recommended the disbanding of the crofters commission. What that does to the staff of the crofters commission, one can only imagine, but after a long period they are given a completely new personnel as a commission and they are in control. As I said before, they had to sit down and look at the acts to find out what they had to do. Now there was very little handover, probably partly because the previous commission expected it to be defunct. Just a small point about, I suppose, the conflict between the tribunal function and the elected function. Sir Crispin Agnew said that the tribunal function could be removed from the commission and that would make it more compliant with certainly our understanding of how those things do. But where would that function lie? Would we end up with a commission on the commission? Would it be the land court? Where would that function be? I am going to ask Sir Crispin to come back. I thought that I had picked up that he said that he did not think that it would be appropriate to separate the development function from the regulatory function. I want to say that it is a technical constitutional point that under the present law, the commission is defined as a tribunal under the Tribunal and Inquiries Act. We are going into electing tribunal judges and I thought that was a constitutional problem. We were going down the American route of electing judges. There is currently a consultation to take the commission out of the Tribunal and Inquiries Act, so it will merely be an elected body which will be carrying out regulatory functions subject to appeal on most points to the land court or judicial review by the Court of Session. That, I think, is constitutionally acceptable. It is like a local authority licensing committee which has regulatory functions, either granting licences, taking away licences and so on. If you like, I was taking a technical point. I am not saying that the regulatory function should be taken away. I am quite happy that the commission should carry that out. Whether it should be devolved to meet local needs is a different matter and how it should operate. My view is that you want to be more like a local authority where you have the development function, the local policy functions on housing, population retention, what planning development should take place, and you have a regulatory function. If somebody puts a building up in breach of the planning regulations, then the local authority regulates it and enforces it. However, the two are very difficult to separate. More things are going to end up in court rather if you do separate it, while more things end up in court than do currently. Just mindful of the time period and I noticed that you raised your finger. John wants to ask a question, which you may be able to add specifically the point that you want to raise. I am sure that you will do the same. I am a city person. I am fairly new to this whole area of crofting. I realise that some of my colleagues have a lot more experience of it. The word that has come up a number of times this week and last week is Shuxmouth. As somebody new to all of this—obviously, I have got the legislation, so we can look at that where we are at the moment—is the Shuxmouth report also a good place to be starting at and looking at what they said? Is it still relevant today? Is there stuff in there that is useful to take us forward? I think that we must use it. It was the biggest investigation of what crofters wanted. Since the Napier Commission in 1886, it is very valuable. I cannot imagine that we want to go off and do all that again. Is there a lot of respect or general acceptance of Shuxmouth? We are talking about a small world where there are opposing voices, and not everything pleads to everybody. Even the Government's response to Shuxmouth about the formation of the commission agreed that there were going to be area bodies, and we did not get near that. We just moved the crofters commission into the crofting commission with all the different things to do—the annual return, the introduction of a map-based register that is colossal on the commission side, as well as the air hat registers of Scotland. It might be worth distinguishing within the Shuxmouth report between the research that he and his team carried out and the recommendations and the implementation that followed it. It might well be that I did not agree with everything that the report recommended, but I do support the research that it carried out. I do not think that there is much of an appetite for repeating that exercise, having evidence sessions in the crofting counties and so on. It might be that we can still make use of the investment that was made by Shuxmouth and his team, even if that means changing some of the recommendations that were made. We can pick and choose. I have something to say. If you do not know much about crofting, read the Shuxmouth report. It is a very good, useful background material. My complaint about the Shuxmouth report, as I said right at the outset, is that it was looked at crofting in a bubble. What did crofters want out of it? It was not an investigation as to what is needed in the wider highland area and how crofting fitted into it. It looked at crofting narrowly. My view is that that was its failure, but it is well worth reading our investigation. You can see all the different views, which I think are probably just as relevant today as they were then. I am delighted that we have now got off question one. We are going to move over to Peter, who has some questions on the next thing. I think that Peter's question is going to be quite targeted. Quick answers or not politicians' answers would be much appreciated. My question is quite targeted. It is about the 2010 act and the introduction of a register of crofts. That register is moving on, as we know, as crofts are assigned and de-crofted. They appear on the register. There are three specific things that I want to ask about that process. We heard last week that the cost to crofters of public notification was quite high. Could we do something about that? We also heard that the mapping of grazings was seen to be a very important part of that exercise, but we heard that that had almost ground our halt. I would like your thoughts on that. The third thing that I would ask is, what do you feel about the option to appeal to the line court as being the only way to resolve a dispute in this region? I have got one general point about the registration. I think that it is a very good thing. There is no end date. At the moment, up until 2007, you could prove that a croft on the register was no longer a croft if you proved that it was there in error. They put that right in 2010 by saying that if it had been on the register for 20 years, it was unchallangable. Everybody had asked that the converse should apply that if it had not been on the register for 20 years, equally you could not apply to get it put on. You probably heard of a Dornoch golf club case, which is going in the land court where a crofter has come along and said that the Royal Dornoch golf club is, in fact, on a common grazing, even though the evidence is that it has not been used to grazing since the 1930s. I have been involved in a lot of cases where people have come out of the woodwork and said that this is a croft. We need an end point that once the register is apparently full, there should perhaps be—you have got five years—anybody who claims that land should be on it to get it on. If it isn't on, if you like, the register should be closed so that you can't have anything coming out of the woodwork. I think that's quite important. Otherwise, it's not a definitive register and solicitors will always have to say because this land is next door to the common grazing, next door to a township. We'll have to go on for that. To answer your last point about appeal to the land court, I'm a qualified mediator. I'm a great fan of mediation. The Scottish Government puts into various legislation these days options to mediate, and I would have thought that if you could perhaps have a mediation service, perhaps funded by the Scottish Government or funded by the commission or supported by the commission, a mediator might well be able to resolve boundary disputes and things like that in a cheaper way, perhaps than going to the land court. However, the other two are better to come with me. Ellie, if I could come to you. Do you agree with the end point? Yes, I do. I think that it's a role that the Croft and Commission, when it was the Crofter's commission and when it still had a development role—I worked as a student in the commission before the development function was given to Highlands and Islands Enterprise—a very common occurrence for senior commission officials, not just commissioners but senior officials, to go out to hotspots in the Crofton counties where people were unable to make any progress with various disputes that they were having. So often, they were able to make progress with that, and it was a real shame, really, that that seems no longer to be as common as it once was. The hearing system goes some way to doing that, but the problem with a hearing is that it's an extremely—well, it feels like a very formal environment to people because it is a tribunal. Actually, what I think worked better was more informal meetings. Everybody sitting around a table trying to work out, essentially mediation by another name. So yes, I would agree with that. The first point of the question on the cost of public notification. It is good for local newspapers, there's no question about that, but that's really the only benefit that there is to it. It strikes me that nowadays, there's no reason why you couldn't have some kind of web-based notification system that would be cost-neutral, I would think, once it was established. So there's that. Mapping of the common raisings. The crossing register in general has been—it's hard work to get there sometimes because there are boundary disputes, not in as many cases as I feared, actually. It does happen, but by and large, people manage to sort things out between themselves before it gets to that point. If it does get to the land court, even then, it's still possible for—once people then take legal advice and they're able to sort of work out, actually, do I have a case here? Am I just misunderstood or whatever? People are able to—it doesn't necessarily, just because you apply to the land court, doesn't necessarily mean that you end up in a village hall in Durnas having a land court hearing, although, of course, that does happen sometimes. By and large, the crossing register has been a great thing. It's a shame that the mapping of the common raisings has ended, but I think that that was the withdrawal of funding. The commissioner is really, really well-placed to carry out the registration of common raisings, I would say. You're agreeing that the mapping of the common raisings has gone to a halt, but do you think that that is something that should change and that process should continue? In an ideal world, yes. I would like to see it continue, but I'm aware that that depends largely on funding being made available to the commission for that to happen. Derek, do you want to add, hopefully, your agreement or a short? I see the common raisings as being a land asset. At a time when we're talking about land reform, here is land that's already in the hands of other people, of local people, and the mapping of the raisings is one way that you can focus on this asset. It is unfortunate, I think, that it's called common raisings, because even within the commission I found recently an understanding that it could only be used for grazing. Well, no, this is one of the difficulties of crofting that we started off with common raisings. Even the land register, the register of Scotland wanted to call it initially a register of common land, but that means nothing. That's bringing another term. So we now have a register of common raisings and land-held run-break. Now, I've been involved in crofting for a long time. I've only once ever had a client who claimed to be involved in the run-break system, and we've got things like that in the act, run-break, cutters, without anybody looking to see if we've really got them. In the department regulations, there's a mention of Kyle's crofters. I don't know what they are and I keep asking people. The best answer I've got is that if you were a Kyle's crofter, you would know you were. Well, I'm writing a textbook and I can't find the answers. Hopefully, this textbook will still be relevant after this inquiry, but thank you for that. Unless there's anything particularly that the committee would like to ask, I'd like to move on to Stuart who's got a question on regulation. In particular, the 2010 act made provisions in relation to absentee crofters and neglective crofts. I really just hopefully can get a fairly brief answer as to whether that's had any beneficial or deleterious effect. Express a personal view that what we're talking about is a law that protects the people who are on the land, and I believe the law should do that. I think it should be for the people who are living on the land and looking after it. In principle, I agree with Derek, but whether or not the jobs are enough people to be able to work in the area, should people be able to go away, work and then come back because there's a very strong emotional connection with the land. I think absenteeism has to be linked to whether in fact you have the job opportunities in the area. Otherwise, you are forcing people to come back when there isn't the wherewithal for them to live there. If it's available and there are jobs and all the rest in the area, then yes, force them to live there, but I think there's got to be a certain amount of sensitivity that if somebody's gone to Glasgow to work because there isn't work locally and perhaps comes back to help with all the gathering and comes back at weekends to work and so on, I think there needs to be flexibility. From that, it is, of course, possible for people to be legally resident in two places at once. I got a nod, so I'm correct in that. Providing that they don't stray too far away from the craft according to the registration, did you say that? I'm somewhere in between Derek and Sir Christopher's views on that. I'm well aware of how painful it can be for people who are forced really to give up their craft because they are unable for various reasons to return there. That's something that haunts people for decades, this threat of the commission might regulate, the commission might terminate their tendency. I suppose that the issue of the tightness of regulation, particularly on absenteeism, goes to the root really of what you want crofting to achieve. Is it about population retention? Is it about agricultural activity? Is it about protecting people's rights to their family heritage? I suppose that if you're clear about that, and my recollection of the Shucksmith report was that it was a lot to do with population retention, which was why the priority was, at that time, to regulate people who were not ordinarily resident on or near the craft. There's no question, by the way, that the tightening of the regulation on that point freed up crafts. Absolutely no question in my mind that that was the case. I've acted for a huge amount of people, both who were pursued by the commission and who were receiving crafts from people who were being pursued by the commission. That did happen. I dare say that that was what it was intended to achieve. No sooner had the commission started to regulate on the basis of residency, but people started to say that it's not really about residency, it's about what you're doing with the craft. It's more important to be working your craft than it is to be resident there. I suppose that comes down to policy priorities and what the commission wants to do and what guidance the commission is given by Government and Parliament. While it's difficult for people who are the ones being regulated, that's always going to be the case. That's the nature of it. However, if the desired effect was to free up the number of crafts to enable new people to move there, that objective was met in my experience. Richard Scott has a question about ownership. Good morning, gentlemen and lady. I think that Sir Crispin and Derek Flynn I met you when I was last on the rule of affairs committee, which was discussing crafting, so nice to be back. From my mind, I'm a lowlander. Crofting effectively has been a tradition in Scotland for hundreds of years. Land owners gave their local population land to work on, land to live on and give them a living, which they paid rent. I don't think that I'm wrong in that situation. Crofters worked to land. The land was still theirs. We've now got a situation where some crofters now own their land. I'm going to quote back a point that you've put down. Crofters were given the right to acquire their crofts in 1976. Crofters buying their crofts were called owner occupiers for want of a better label. However, the term has never defined in law, and the legal reality for those crofters who have purchased their crofts was what they considered to be landlords of a vacant croft. Those people who were working the land now are landlords. Basically, as a landlord, they could then turn around and give their croft to someone else to work. Would the panel agree with Murray McShane, who last week said that there was no good reason why owner-occupier crofters should be subject to the same rights and obligations as crofters who have remained tenants? Is this one way that crofting law should effectively be simplified? I agree. Crofters should be the name given to those people who properly occupy the land. Even the terms are unhappy, but if you have a croft that is mapped and registered, you should be able to record the person who should be occupying that land, who has the right to occupy that land. We can't control ownership of land. Anybody can buy bits and pieces, and that is one of the difficulties of crofting. If it is not understood, if there is not a transparent system, nowhere to go to look at the maps to see if this land is a croft or not, then people buy pieces of land. Some people have built houses on land, which is actually in crofting tenure. Trying to unravel that is virtually impossible in some situations. There is a suggestion in the sump that the commission should have a right to go and look at the reality of a situation and find a solution, but some people have no way out of the difficulty that has been created by the confusion of the law before. Now we have the possibility of registering pieces of land that are identified as crofts and a place where we can put the name of the occupier who has been approved, either by succession or whatever, by the commission's approval. That would bring some simplification to the system that has gotten terribly complicated since 1976, since title deed started being made available to tenant crofters. With the rules that people should be residing on or near the croft, it becomes more important that we identify who that person is. However, the law has changed to allow this annual notice to be sent out to the occupier to find out if the occupier on the register is, in fact, living there and looking after the croft. Those are changes that have come in recently and which I applaud. Can I just clarify? I'm not sure if everyone else on the committee has understood that. Murray McShane basically said that if you are an owner-occupier, you should no longer be regarded as a crofter. That's what he said to us last week. Are you agreeing with him or disagreeing with him? I'm sorry. Who said that? Murray McShane, when he was here last week. There's nothing wrong with disagreeing with him. We had an act that introduced owner-occupier crofters. He was suggesting a way forward in the future, which was the point that Richard was making. He was suggesting that someone who bought was a crofter, worked on the land or whatever, and then bought the croft that they should no longer be considered a crofter. Do you agree with that or disagree? I do not agree with that. I didn't want to interrupt you. Sorry, so Chris Pyn, do you want to follow on with that? There is a crofter is defined as the tenant of a croft. Section 19, capital B, defines owner-occupier crofter, and it's a highly technical definition. If you own your croft, but you don't come within the technical definition in 19B, you are an owner-occupier or a landlord of a vacant croft. And even though you might be exactly the same as a 19B person, you are subject to the crofting commission coming along and ordering you to re-let your croft. So you've got three different types of occupiers, different regimes, highly technical. I think that you should define what is a croft, which it'll ultimately be in the register. Whoever is the occupier of that croft should be subject to the rules and regulations that apply to crofts, and it shouldn't matter whether you're the owner, a crofter, or whatever. If you are occupying it under a sublet as the owner or as the full tenant, the rules that govern the use of that land should apply equally to anybody, and you should do away with all the different definitions. I don't want to interfere with a 200-year or more tradition or something which is inherent in Scotland, and I'm proud of being Scottish and proud of what we're doing, but what you've just told me is basically bordering on a situation where it's so farcical. If I'm a council tenant, I was a council tenant, I bought my council house, I now own that house. If I want to go away and work in Australia for six months, I still own that house. What you've just laid out to me is that all that is in the last hour is a situation where people buy their croft, if they don't work it, somebody can go and snitch on them, report them and basically, with the greatest respect, I do apologise for the word, all hell breaks loose. Is that where we are? So, Crispin, can I let you come back to Crispin? I know Ailey's itching because I've read as we all have her submissions, so she'll have strong views on it. So, if I could let Crispin come in briefly and then Ailey come back, I'd be very grateful. Very briefly, this is a matter of policy. At the moment, a croft is regulated, but we've got the odd situation that different people are regulated in different ways. Now, if you want to get rid of the regulation and stop crofting and have free use of your property, I'm not against that. But if you've made a policy decision that this area of land should be, the use of this area of land should be regulated in a particular way, then my view is, on whatever basis you occupy it, you should be subject to the same regulation. I hope that answers your question. You must remember there are quite a number of small land holdings under the 1911 act in the Lowlands. Indeed, I was looking at one at damn head only yesterday. It's a fair point. Why should these crofters be answerable to the commission? I suppose that, in general terms, I see the crofting system as, like with most things, you've got rights and you've got responsibilities. As a crofter, you have very strong rights, security of tenure, succession of compensation for permanent improvements, you get extra public money over and above the agricultural support that other farmers get. Some people would say that you get a pretty good deal, but the flip side of that is that, because you get a good deal, you've got to comply with certain regulations. You've got to help population retention, you've got to do something with your croft to facilitate landscape management and facilitate agricultural production in whatever small way it happens in those outlying areas. In my mind, that's the justification for it, but there's no doubt about it that it is a farcical situation that exists currently where you have these three groups of people. The whole point of the definition of owner-occupier crofter was to sweep up the landlords of vacant crofts so that they could be regulated in the same way as tenant crofters. The problem was that the definition wasn't drafted in a way that did that, so it was unsuccessful. That's why you've got this group of people. To my mind, the greatest danger to that group of people is not really the commission forcing a tenancy light on them, because the commission has had a policy since 1976 not to do that as long as you are compliant with crofting legislation, but you are at the mercy of the commission on that point. If somebody wanted to make something of it, I'm sure they could. From the commission's point of view, it's also difficult to regulate. It's been well known over the last sort of 20, 30 years that if you wanted to sort of escape commission regulation by your croft, become an owner-occupier, become the landlord of a vacant croft, because then, although the commission can regulate you, it's so much more difficult than it is for them to regulate tenant crofters because the procedure was there in the act and everybody knew what they were doing with that. At the time, that was what was trying to be achieved, but it wasn't. The various problems that I'm not going to go into just now, they're in my written submission, but the various problems that before that group of people are really quite serious. It can cost them a fair bit to go through all of the legal processes to get themselves, and it's not always possible, but sometimes you can get yourself from that neither fish nor fowl category back into being an owner-occupier crofter, or you can enter back into a tenancy arrangement, but it's not always possible to rectify that, so it is a huge problem. Derek has been recommending the concept of a proper occupier as long as I've known him a long time and to Crispin, too. There's no question that it would make life an awful lot easier, and perhaps if we are beginning with a clean slate, rather than trying to cater for those two different groups of people, because ultimately, over the fullness of time, over several generations more, all crofts will be purchased. Everybody will eventually get to that point, for various reasons, that's the direction that we're going in. I forget that the current, I think it's about 5,000 crofts that have been purchased, but it could be far more than that, because lots of people don't tell the commission when they buy their crofts, even though they should do. But there's no penalty for that. Richard Rennart, briefly, because I do like your illustration of the council house. Maybe I should say that where public monies and support have created a situation, it doesn't seem to me to be unreasonable to say, and I suppose if I'm allowing me to follow this on, the formal council houses should be occupied and kept in good order. Now, I think that it's not an illustration I've used before, but if I said that there's a council house stock that is moving into private ownership, but there still should be a rule that they are occupied and kept in good order, and that would parallel what I'm saying about crofting. I don't have that you have. I don't have the crofting commission coming after me. I think that we may see a split in the committee if it comes down to discussing council house purchasing. I like the analogy there, and I take the point out, and I think that Richard Rennart, your point is… I know other people who get questions. I may want to come back in after this time. Thank you. Can I move from what I thought was not going to be a contentious issue to one that perhaps is, and just advise you again if I may please to concentrate on the issues rather than the personalities, and John's going to lead this question. Okay, I don't even know some of the stories that are going on. We mentioned common grazing before, and I'm specifically interested in the grazing committees. On the whole, are grazing committees working? Is the legislation fit for purpose, or do they need to be looked at again? Broadly, no. I'm not dealing with personalities or some of the current issues, but it's the very narrow role of the Grazing Committee under the Act, which is basically that the Grazing Committee are there to manage the common grazing and to maintain or replace the fixed equipment, so they have a very narrow role under the Act. Now, with the subsidy regime, with all the environmental obligations, and all the other agricultural obligations, which are floating around under totally different degestation, the Crofting Act isn't an appropriate mechanism for trying to manage all those other functions because the Act doesn't, in fact, allow it to be done. And where Grazing Committees have tried to, if you like, expand their function to deal with other legislative requirements, if somebody doesn't want them to do so, they can frustrate them from doing so because the legislation doesn't give them those powers. I think that it goes back to my what's the policy, what's the aims behind the whole thing. You need to look at what the proper role of the Grazing Committee is or is not going to be. There are specific things that were raised with us, including that nowadays it's a lot more than just grazing. There could be a lot of other uses and income coming in. There's a bit of a question over how that's handled. Yes, and that's because they don't, under the Act, they don't have those functions. They were given a function under the 207 Act, in which they could borrow money and things like that, that was taken away in the 2010 Act. That's why I think the whole of that needs to be looked at, because yes, the money that comes in for the subsidy is money that's technically due to each of the Grazias out of their own rights, but shouldn't come centrally. If you're running a sheep stock club, which is often done on the common grazings, that's not a Grazing Committee function. It should be a function under your lease, which sets out how the sheep stock should be created. I can go into it in great detail, but you don't want me to do that now. It's just that their powers are very narrow under the Act, and they don't fit for purpose in the modern day and age, where there are all sorts of other legislative and European factors. John, I was going to bring an idea in there first, if I may, and then Derek in afterwards, please. The question being, are Grazias committees working? In the majority of cases, they probably are just about, but my experience of being a solicitor led me to believe that there is quite a widespread concern not just amongst shareholders about Grazias committees, but also inside Grazias committees about what they're supposed to be doing. A lot of people running Grazias committees are doing it on their own time. They're putting in a lot of effort into what they're doing. They're doing it entirely in good faith, but entirely without training and support, and that's a lot to expect of people. I think that, as a first step, that's one thing that is required. Grazias is a different world now, and the law relating to common grazias has changed quite a bit over the past 20-odd years. You can have crofter forestry now, you can have other developments on croft lands, you can have new common grazias, you can do other things with common grazias apart from just graze. It's a different environment, but I don't think that the grazing regulations produced by the crofter's commission in standardised format have changed in a generation. They've added bits on to them for crofter forestry or other things, but it's basically the same set of regulations. That's because of the act that they call me. That's right. I think that that's true. I think that increased training, increased support, if not wholesale, is looking at what grazias committees are there to do, but at the moment you've got a sort of unfortunate situation generally, and this is not specific at all, but in lots of cases, you've got clerks and common grazias committees who feel exposed because of increased duties on them to prepare reports on all the crofts in the township. That's a big ask to ask somebody to do that. You've also got lots of shareholders in common grazias who are wondering what exactly is going on and what's happening to the money, and resumption money, and this money, and that money. There's not enough clarity, and I think that all of that is ripe for improvement. I think that in short terms, the way I describe it is that common grazings management is in need of a new business model. There are too many functions now available, but I think that retreating from that would say that in any walk of life it seems to be more and more difficult to form committees because the responsibility is there. The common grazias committee in the last round of reforms was given the function of reporting on all its tenants as to what they were doing with their crofts. Although the commission itself has sought to water that down, that's not what it says in the act. It is what it says in the act that it should be reporting on all the crofts, but the commission have backtracked them because they know that that's made a lot of committees unhappy that they would be policing their neighbours in some way. The new business model to cope with modern times is a must, and it's not even somewhere that the sump went. It's far too complicated. I've got a couple of questions, if I may. Sorry, I've been waiting patiently on grazings, and there's two particular things that I'd like to ask. Derek, I know your point that the commission has turned a blind eye on the reports, and when I asked the commission how many reports they'd received, they wouldn't tell me, but it was no more than a couple of hands worth, they said. I think that there's two questions that I would like to ask. One is, do you think—some grazing committees are in receipt of a huge amount of funds and do you think that they should be treated differently to those people, the grazing committees, that have less funds? The second question, which is almost unrelated, is, do you think that it's appropriate for grazing shares in the common grazings to be separated from the croft? We certainly heard last week that that was an obstacle to new crofters coming in and young crofters coming in, so I don't know who'd like to tackle those two questions. There are two big different questions. Could you give me the first one again? The first one is, do you think that there should be different business models, depending on the size of turnover of the common grazings, cash-wise, and the second one is whether it's appropriate to separate shares in common grazing from the croft? The different business models, I think that there should be a range of business models made available by the commission. And separating common grazing shares from the croft? This was a problem foreseen in 1976 when crofters were given the right to buy their croft land, but not the share in their tenancy. It was only really recognised when the commission had to catch these shares, which hadn't pursued the ownership of crofts and got separated from them. The act said in 1976 that they would be deemed to be held in tenancy, and they would be deemed to be crofts. It was a great, almost an outcry that this should happen, but the law had been in place like that and had been, well, subject to criticism but no activity since 1976. I think that there is a trend that they get separated because not everybody wants to work to share in the grazing. One of the difficulties had been that people hold shares in the grazing that they never ever use. This is really the difficulty of common grazings, that some people want to use 100 per cent and should be entitled to 100 per cent of the value of what they do, but they only get their own little share of the value of what they do, and so less people get involved. If you separate the share from the croft, you are making the croft unviable agriculturally, basically. People are very keen to separate the share if there is a wind farm in the prospect, because you then get the money for your share from exploiting the common grazings for whether the landlord is doing it or anybody else. You then sort of end up with a whole group of people who have a share in the common grazings, but no land nearby, so do they have to live within what is it now? 32 kilometres, it was more than 60 miles, 32 kilometres of your share. Now, if you have a common grazing that is 10 miles wide, do you have to live where is the 20 miles from this end or that end? I personally think that they shouldn't have been separated. They are currently separated. We've recently had a land court case that said that you can assign it separately, so you can separate it off. When you buy your croft, you're not entitled to buy your share in it, it makes it a separate croft. We've sold that pass. I would like to see them all reattached if you're going to keep an agricultural content to it. So that's really the separation of the shares. Holding money, under the act as it is at the moment, the common grazes committee should not be holding any money, accepting money they recovered from the shareholders for works that they have done on the common grazing to maintain it or put in fixed equipment or improve the fixed equipment. They can also be given the money from a resumption that is given to them to distribute to the shareholders who entitle to it, but I believe sometimes it's kept by the Grazing Committee for then for use in the future on maintenance and so on. Maybe everybody's agreed to that, but it's not something they're entitled to do under the act. That's why one needs to look at what powers do they have. Yes, they get sort of environmental money because in a way they're the only people managing that area, but they don't have any right to manage it for environmental reasons. They only have a right to manage the common grazes for grazes. So that's why the whole thing needs to be looked at in detail again in the context of, you see, their duty is to maintain the common grazings and to provide, maintain and if necessary replace the fixed equipment required in connection therewith. So it's to maintain the common grazing. So that's part of the problem that it's not fit for purpose. Eilidh, do you want to add something to that? I'll be brief. So the first part of the question was should there be different business models for different types of common grazing operations? That's not something I've ever thought of before, but it strikes me as a really good idea because there is such a breadth of Grazing committees, you get some that are not even regulated and so really there's no way of establishing who holds a share in that or you can obviously, but it can get difficult. You have some common grazings who have maybe two or three active shareholders, who are maybe they have a sheep's dot club, maybe they don't. You get some who have really quite substantial sheep's dot clubs with quite large amounts of funds coming in and going out from that. You've got others where there are large renewables developments and obviously that's a sort of different class entirely of funding that's coming in from that, so good idea. The second question should shares be separated from Croft? I think we're all sort of harking back to thinking back probably here to the reference that the Croft and Commission made to the Land Court a few years ago and Crispin mentioned that in what he's just said and the Land Court in that case said that yes, when you buy your Croft it is separated and you're left with this grazing share. What can happen actually is that regardless of whether the grazing share has become detached from the Croft and that can be an issue not just in sort of everyday life but also particularly at succession where a Crofter dies and it's an owner occupied Croft. Quite often you will find there's no mention made of the grazing share because the Crofter never used it and you know the executor who may or may not have knowledge of the Crofter's working. It's never mentioned as far as the executor's concerned so it's not mentioned on the confirmation so the succession to the grazing share is never attended to and then when somebody decides in 20 years time to ask the commission who shares in that common grazing that's somebody that died 20 years ago and there are remedies to that. The commission can terminate the tenancy, the landlord of the grazing can terminate the tenancy but also what can happen is that if somebody in the township wants to be an active Crofter but needs more of a share in common grazing than they have so say they're assuming is for four cows and they've got their four cows they could really do with another four cows for whatever reason they can actually go to the grazing committee and say look can I use so-and-so share and that happens quite frequently I think so that's a sort of cobbled together solution that might work in the short term but it does get messy when the Crofters are separated that way. Technical question really for my own information obviously all the grazing committees will be of a different size but I was just trying to get a grip of is there a sort of common size to a grazing committee in other words how what are we talking about how many how many Crofts would be involved normally in an average grazing committee I mean just to give us an idea of scale. I don't think there is an average to be on I mean you get some common grazing they are yeah I mean you know you get you get some townships in lewis for example where I mean obviously that you know there's thousands and thousands of Crofts in lewis but you've got some of the Crofts there will actually have common grazing shares locally and they will also have a share in for example the storm away general common grazing so they'll have two grazing shares you know our own township in in sky has got 12 or 13 Crofts 12 or 13 shares in the common grazing that's fine you get other Crofts crofting townships where there's two Crofts and two shares in common grazing some of them are hundreds so I'm I'm afraid I'm going to dodge that and say I can't give you an average I'm sorry. The act says a point of grazing committee of such number as the meeting shall decide so it can be whatever they like I'd like to come back to the sheep stock clubs it's not the function under the act of the grazing committee to manage a sheep stock club all sheep stock clubs used to be pre second world war operated under the provident and industrial societies acts and there were obligations under those acts for financial regulation my view is that there's an argument that any sheep stock club ought to be regulated still regulated under those acts although I know most of them no longer do so but I think they in a way come under those acts and they ought to be registered and regulated but that's terribly complicated and it would be sensible that they are regulated by the grazing committee but they can't be under the act that's for the future this is why it all needs to be thought about. Sorry could I just come back in there so I misunderstood your question Mr Rumbles I thought you were asking about the average size of a township not the committee. One of that was really I was trying to find out but that's also interesting but I was just trying to find out and understand obviously they're all different but it goes to the previous questions about what types should be how we should handle the different types of grazing committees. It's always the biggest committees who've got the most activity sometimes you will have much smaller townships with a lot more going on so there's no. I should once come in very briefly to you on this or at the end okay fine thank you I think that we we've navigated those rough waters quite quite well so I'd like to go to Marie and ask her she's got a question to ask. Yeah it was just that you had mentioned in your evidence Ailey about the the funding I mean quite a lot of detail there and you mentioned earlier as well about having to have the cash to be able to buy a croft so it was really just a question about that because are there other ways in which young people and those that live locally would be able to purchase a croft and what suggestions would you have or how do you think that yeah we could potentially move forward and make some changes there to enable that to happen well thanks for that question that the um it's a huge problem for people because you know unless you unless you're able to borrow from family friends unless you have a home that you've got equity in that you can remorgage and use that to but you know for the vast majority of young people you know they've only just got a mortgage and you know it's going to be 10 years or so before they've got sufficient equity to think about doing that excuse me so it is a problem and by and large there you know there aren't any ways around that um you know I mean even even sort of personal loans from from banks um will will usually come with the caveat that you're you know they've got to be used for a certain purpose and if you're truthful with the bank and you tell them that what you're going to do is is buy land with it they won't lend so and they certainly won't lend uh you sort of you know on a mortgage so it's a huge problem I mean I I I certainly what I don't think is is an option moving forward is for commercial mortgages as they are currently to be used to buy croft I think there's there's such a huge gap between where we are at the moment and what would need to happen nothing's impossible obviously um but there's such a huge gap and there's there'd be an awful lot of persuading of of lenders um to do and they would need to know that their rights were going to be secure and that I mean that was actually part of the crofting register was was the theory of it was to to give everybody certainty over their rights but particularly with a longer term view so that lenders would know exactly what they were having a security over so I don't think there's a ready-made answer I certainly don't have unfortunately a ready-made answer for the committee or for anybody else but it strikes me that you know it's it's a it's a problem um and it's it's something that I hear um I do some some teaching for the Scottish Crofting Federation for incoming crofters and new crofters um and it's a cause of huge frustration for people because they they wonder really how are they ever going to do it if they don't have a family croft um or they don't inherit a croft or they don't have a a sum of money and of course all the while the value of croft is going up so on the west side of lewis you may well be able to get a croft for £15,000 you know on the black isle um you know it's going to be tens of thousands of pounds at least so and that's you know there aren't many people who could buy a house for that amount of money without a mortgage um at a young age so um so it's a huge problem I think this goes back to the problem of putting a value on a croft and the problem of there being or not being a marketplace for croft it's in my memory you don't have to go very far back to when the commission refused to accept that a croft had a value of more than the permanent improvements on the croft that there was no additional value because people wanted that specific location norm um and we had to confront that we held a seminar on the value of crofts I've plucked in when we invited speakers to talk about the value of crofts and we got the value of crofting as a social value but you can't put a pound sign on to that but we did get the district value coming along said the government will look at the value of the crofts as open market value and I think there is still out there a resistance to accepting that a croft has an open market value now that will pose difficulties going forward if for instance uh the children of a DC's crofter are all entitled to a share of the value of the croft it will mean that these crofts will be marketed to get the highest value now that was already in the past produced problems but it's in reality we have a system which has resisted being in the marketplace and the future holds that it will be dragged into the marketplace if it's not already there now the other people in the marketplace the lenders don't like it they will only really lend on decrofted houses which are easily marketable and until a marketplace is set up for crofts in tenancy for instance nobody's going to lend on these things because they're so very difficult if things go belly up they're so difficult to get the funding back again the the proposal that tenancies should be registered which would make them available for lending on which came out of the committee of inquiry and crofting seemed to me to fail to catch that the present law requires that if lending goes belly up and the crofter goes bankrupt the money comes from the landlord and I know that the landlord representation did not quite understand that the easiest way to get the money out of a croft that's been vacated by someone going bankrupt just to get the land court to fix a valuation and the payment is made from the landlord's resources if that landlord is a company that's limited in Andorra or Liechtenstein as some of them are you will not get that money so you know anybody lending and burning their fingers on that it's just going to pull out of the lending place and do you want to add just briefly as a matter a commercial lease of 20 years or more can be recorded in the land register once it's recorded in the land register you can record a standard security against that lease and then the standard security holder can take possession of the lease and market it and so on because the crofting lease is a lease from year to year it can't be registered in the land register therefore you cannot have a standard security over the lease and one of the shucksmith recommendations was that the law should be changed so that lenders could take could take a standard security and register it in the land register over a crofting lease and part of the crofting register was to facilitate that there was a lot of resistance to it from the crofting community because they saw lenders coming in for closing on the crofting lease then selling it on the open market and so on and there was resistance to that but you know if you go you need to set up the legal system whereby that can be done if you're going to if you're going to provide for it through the commercial sector. I was in the agricultural holdings legislation review group and we had various meetings with bankers about lending to agricultural tenants and security issues there and it might be worth looking at that report because there was discussion from the lenders or the circumstances when they would lend to agricultural tenants and so on but it wasn't a very sort of positive or strong one in the way of crofting and therefore as Ailey said the only way to get a mortgage is to buy your croft house, decroft it, take it out of crofting, divide the croft, make the croft smaller, less economic and so on and you then end up with a house that's sold separately, you have a bare land under the act on my interpretation, you can't then apply to put another house on it unless the landlord agrees, some people disagree with me, you then put a house on it, you then buy that, decroft that house and you buy it and part of the sort of conflict is there's a sort of theme to encourage crofts to be divided and made smaller and smaller and to all you end up with a whole bundle of house sites. Stuart's got a quick question and then I want to to look more generically I think the committee does at the future so sorry Stuart. Can I preface it by saying if it can't be answered in two sentences please don't answer it. While there can't be standard securities unless the lease is 20 years is it possible to get the same certainty for the lender through adopting a process of real burdens instead and I ask this as a non-lawyer. There is no I think you need to have need to have a standard security and to have that you need the legislation change perhaps that you can have a standard security registered in the land register. Disagreement so I'm going to move on if I may and ask John to to to finish to take us on with with the next one. Thank you. Good morning panel. I would like to talk about the future. You may or may not be aware the programme for government for 2016 commits to begin work on a quote a national development plan for crofting and to do so this year. Now if I noted you correctly Sir Crispin you talked about in question whether there was an underlying policy theme connected with crofting and you said it couldn't be viewed in a bubble. Ailey You mentioned about population retention in agriculture, Lewis and Derrick land use featured. The development function did move to high. I just wonder if you would like to express a view on what you think this national development plan for crofting is likely to result in in terms of any policy changes. Now nothing to do with the technical legal issues that we've identified but on policy changes and would you like to speculate on what should be part of that please? That's a difficult one. Derrick's avoiding it. I must confess I haven't thought about it at all. I think there will be a problem just from a legal point of view in sort of trying to have a policy on development when you've got the current act with its limitations. I think it will be a good thing to have a discussion about it. That might then lead to a discussion about what's in fact the underlying policy for crofting and therefore what do you want to end up with with the new and simplified simplified act. But yes again it's development of crofting but it's development of crofting in the context of the development of the Highlands and Highlands and I don't think that you can separate the two as we have done and I would like to see it rarely as a policy for the development of crofting in the wider context of the requirements of the crofting areas. I suppose it illustrates to me how odd it is to have that function with Highlands and Islands Enterprise rather than with the Crofters commission where in my view it should be. To have policy consultation going on at the same time as possible legislative changes and surely the two have to be done in tandem with each other. My view really is that the development function should be with the commission. For my money that would be the starting point is that it should be with the commission and then as part of the same exercise as what do we want crofting legislation to do? What do we want the crofting system to do? Because if we don't want the crofting system to do something entirely different, surely the crofting legislative system should simply be providing the legal framework for implementing what we want the crofting system to do. Do you have a view on what that should be? There have been issues raised about housing frequently, the technical issues around that, but population retention in many remote and rural areas is absolutely dependent on a dearth of housing in the associational land. Having lived on sky for the last three years, there simply is no private market, rental market, from March until October. There is just nothing. The amount of people who are obliged to move out of their accommodation in March—whether they want to or not—to make way for tourist accommodation, you would just assume that everybody was doing that unless it was their own property. I know that it is a huge problem in other parts of the crofting county. Population retention is a thing. I also think that the agricultural element of crofting is still important. I am no agriculturalist, but I have sort of day-to-day dealings with agriculture. It seems to me that it is an important part of the culture of those places. If not, the amount of money that is probably generated by the agricultural economy in the crofting county is probably not going to change anybody's life, but it is going to the market. That whole cultural aspect is quite important as well. If he wants to come in, he has been deliberately trying to avoid my gaze, but it is just in fairness to give you a chance to answer that before I bring back Sir Crispin, because we have a few more questions and time is not waiting for us. Derek, if you would like to add something briefly. Briefly, I am of a mind that crofting is not an industry. I think that that is something that most of the people out there are not participating in the crofting industry. The system itself, we have moved towards the protection of the system and the sustainability of the population. I see that as being for the people on the land to do with what they will with that land that is in their control. The annual returns, checking that, the map-based register and the clear statutory duties to live on the beside and look after it has been a big movement towards that. In the past, there has been a tendency to see crofting as part of the agricultural law of the land, and we have separated it. Now, whether it is a good thing or not is perhaps an argument, but we now have different titles. The steering cyclopedia of Scots law, we persuaded them to move that out of agricultural law and give us our separate title, crofting law, because it is different. We are talking about a different history, a different feel to it all. At a time of land reform, it seems to me that a system that allows individuals to hold small areas of land under a settled system is extremely valuable. Sir Crispin, do you want to add something briefly to that? Very briefly. I agree population retention, housing sites and so on. Ask yourself why should the croft land be providing the house sites, because it is quite a convenient way to regulate it and you can buy the croft, blah, blah, blah. If you want housing, you need a wider policy. Why shouldn't there be compulsory purchase powers for acquiring land elsewhere? Land reform act is giving communities greater rights to acquire land. That's why I say we don't want to look at it in a bubble. In a way, why should croft land be providing house sites, which are then decrofted, which are reducing the amount of croft land, if having croft land and crofting is an important contribution to the overall development? It's a decreasing asset and that goes back to my bubble point. Are you happy with that or are you happy with that? Jamie, you've got a question relating to land holding. My initial question was going to be a very specific one, so I'll ask it very quickly and maybe you might have a short view on it. That's simply about the simplification of crofting law and bringing together the current legislation on small landholders with crofting law, if there's any merit in any consolidation. That's a very brief question, but I think that overarching there is a wider theme here and how we as a committee look at the future of crofting law. Just quoting from a piece from some written submission from Eilam, I'm sorry it's not dated, but it just says whether you believe the solution lies in fresh legislation, redrafting, consolidation or restating. The one point that we all agree on is that crofting law needs to be improved. Therefore, my question is if you could each give me one piece of advice to this committee as we think about the structure of any future legislation, what that piece of advice would be? Two questions. It is two questions. If you'll indulge me. I've been quiet all day. You've been very good. The question is whether small holders should come in and the advice. Who wants to start? If you ask any of the small landholders, they don't want to come under the crofting regulation. It was offered to Aaron who'd been made one of these areas. As far as I'm aware, nobody's applied to become a crofter from Aaron because of all the regulatory difficulties there. Unless you're going to apply crofting to the whole of Scotland, again as happened in 1911, I think the answer is no. I think they need to do something different with the small land holdings. One bit of advice. I'd go back to think of what your underlying policy objectives are before you start doing anything with the act. That's very succinct. Derek, are you there? I'm for it. I think small landholders should be dealt with under the same or similar legislation because new crofts don't have to bring with them the right to buy, which was an important part of what happened to traditional crofting. If you're creating new crofts now, you don't have to give people the right to buy. You can resist the right of assignation. That's who the next croft is going to be. New crofts are a different breed to all crofts if you were creating new crofts. I feel that there's a suspicion that some people think new crofts will never be created and I find the community-owned lands are wanting to create more crofts. They see it as a way of holding population. I see nothing wrong with small holdings elsewhere having a very clear code and having their land registered. After all, the new crofting register is a map of the whole of Scotland with crofts placed on it. There's no reason why small holdings shouldn't also be recorded in the same register. Have you got something that you'd like to add to that? Yes, just to clarify, Mr Greene, that those comments were made in a paper that I made to the Crofting Law Group conference in 2013. I don't have a view on land holders, so I'm not going to make one up here. I would echo what Sir Crispin has said and make sure that it does what it wants to do. I made the point earlier about not to rush it or not to rush the bulk of it. It would be lovely to think that, within the next few years, we had a crofting act that did what the consensus seems to be wanting to do and to be able to get used to that and work with that. It's hugely labour-intensive to come to terms with new legislation because you're not familiar with it, so it would be lovely to get to grips with something properly and get used to working with it and to have that for the foreseeable future anyway. I'm looking at the clock and I'm going to be very tight on how long I'll give you in the sense that you've got—I'm afraid of a short time, but I'll read it, please. That follows on from Ailey's last comment. You know that we're looking towards new crofting legislation that the Government has said at the end of the Parliament. They'll bring forward new crofting legislation and that's why we're really having this inquiry because there seems to be pressure on to deal with the issues in the sump, maybe other issues along with that, given events recently or maybe not the whole sump. Should we be dealing with that as a matter of urgency or should we be consolidating? Should we be doing them both in different order? Should we consolidate first, then look at the sump or should we be starting with a clean slate? What's people's thoughts? So a very short question, which is very easily answered, and Sir Crispin was wanting to go first. There is a section, I think, in the 2010 act, which says, if the Government brings forward a bill to consolidate the crofting legislation, then prior to the bill being passed, it may bring a statutory instrument amending the legislation so that they, in fact, are amending the consolidated bill. It struck me as very convoluted and difficult. I can't pick it up immediately, but I think that it's somewhere in the 2010 act or perhaps it was introduced into the 1993 act by it, but it does say, if the Government brings forward a consolidation bill, before the bill is passed, they can amend everything that they want to do so. As I say, it seems rather convoluted. Yes, if you want to do a sort of corrective consolidation and a corrective to try and put right the things that are in the sump, yes, that would be one way to approach it, but I think it needs a much more radical look at why don't you apply it to every landholding in the Highlands? Derek? I've been at many stakeholder groups, and I'm not hearing an awful lot coming through us to changes in what I would call the code, what we're about. There's a lot of unhappiness out there, but I don't hear anything new as yet to change things in the way, for instance, as Crispin's suggested. There is a lot of discussion. I've been to 10 stakeholder meetings. There's a crofting stakeholder group, but we've had less meetings because we're waiting for something to happen. I don't see a lot of changes coming forward. My view on that is on the final page of my submissions before all of those annexes, but I don't think that the Shucksmith report needs to be revisited. I've said that already. The entire act needs to be rewritten. I think that we need to start with a blank sheet of paper and, without going back to work out exactly what the priorities are, use the Shucksmith report as is and use the evidence that the committee gathers and take a decision on what you want it to achieve and then sit down with a fresh bit of paper and try to avoid the sort of layering and the impenitability that Derek has talked about in the sump and that we all sort of are all too familiar with. I hear what Ellie's thoughts are. The others give ideas that are out there, but not their own thoughts as to how we should proceed, and I would welcome those. It should be new legislation or consolidation or a new act? Well, you have to take what we've got and do something with it. A blank sheet seems to me to say, well, what have we got? We've got security of tenure. We've got compensation for improvements. We've got fair rent. Are we going to change that? Because unless you have the basis changing the crofting code remains the same. The general policy asked whether we're sustaining a population or whether we're creating an industry that's producing agricultural goods is a different debate, but the actual working of it, the people's control over land and their rights in that land, are we attacking that? Are we expecting anyone to attack it? Are we expecting it to change? And to me it is not a consolidation, but it's certainly a simplifying of what we've got there. New simplification answer, Chris Finn. I think that a matter of urgency, the act needs to be consolidated and during that process simplified in some of the ways which we've suggested, which could be done under section 52. I think that's a matter of urgency and to put right the various some things. I think in the longer term somebody needs to look out if you like the policy for the crofting counties and in the wider sense. I have not chaired this very well because I had a question to ask at the end, but I seem to have eliminated myself on a timescale thing and I know Richard's got a question. Do you know if Richard, if I've eliminated myself, I'm afraid I'm going to have to ask you to hold on to yours and we could submit it as a written question? If it's a very simple one. With all you've said, I'll look over it. Do we honestly need the crofting commission? Yes or no? To have crofting, which is subject to rules and regulations, then you need a regulator. You need a regulator to implement the system of regulation. I would thank you for your off to stay on and thank you for letting Richard to ask his question. I'm glad you answered it so succinctly. I could give you each a minute if there's something that you would like to leave us with before you go. Your evidence has been extremely good and extremely helpful. I'm happy to give you a quick chance to say something else if you feel you've missed anything. I'm not sure if I, I think the role of the landlord, particularly where you have community ownership, is something that needs important consideration and how their role links in with the regulatory role of the commission. Whether one wants to apply that also to private landlords is perhaps a matter of policy, but I think it's, I think there are conflicts between community ownership and community objectives and aims when it's being regulated separately by the commission. Eddie, do you want to say anything? No, nothing further, thank you. I would echo what Crispin has given, but no, I have nothing else. Okay, well that concludes our formal business and I'd like to thank the witnesses for coming. Crispin, Derek, Ellie, thank you very much. I've been extremely informative I think to all of us and thank you very much for sticking to very clear and concise answers on the issues and I'm sure if there's any matters that we discuss later that you won't mind if we come back to you with a written question if we think there's things that we need clarity on. But thank you very much for coming today. I'd now like to close the meeting.