 Good morning, and welcome everyone to the 10th meeting in 2016 of the Rural Economy and Connectivity Committee. Could I remind everyone, please, present to switch off their mobile phones? We have recieved apologies from Mike Rumbles. Now, today we are on our third session reviewing the legislative priorities for Crofting. As I have done at the start of all evidence sessions, I would like to stretch, stress that We are conscious there are some contentious issues, crofting issues being discussed in the media and elsewhere at the present time. This committee does not intend to stray into these areas. I would urge committee members and indeed the witnesses to focus on the legislative priorities that we are looking at today. Before we go into welcoming those people giving evidence, I think that Stuart would like to yn cael ei wneud o'r cyffredinol? Thank you very much, convener. Just in view of the membership of the panel we have today, I draw members' attention to the fact that, as the environmental climate change minister, I was the one responsible for the Crofting Commission election Scotland regulations 2011. Thank you. Today's session is with the Crofting Commission and I welcome the witness panel. First of all, Colin Kennedy, convener and commissioner for South West Highlands, David Finlay, Solista and Joseph Kerr, head of regulations and duties. I believe, David, that you are going to make a brief opening statement on behalf of the panel. That is correct. Thank you very much, convener. I will introduce Colin Kennedy. As you have said, he is the convener of the Crofting Commission, a crofter from Cull, the island of Cull, who was elected to the commission in 2012 and was elected as convener in June 2015. Joseph Kerr is the commission's head of regulation, an important role for the Crofting Commission. He was also seconded to the bill team for the Crofting Amendment Scotland Act 2013. Myself, I am an accredited specialist in crofting law with the Law Society of Scotland and I am also the in-house solicitor for the Crofting Commission. In terms of the Crofting Commission, it is a very, very brief introduction. The Crofting Commission took over from the Crofters Commission in 2012. It took over with a greater emphasis upon regulation, upon fair and impartial regulation of crofting as a system. As such, the commission has got a vested interest in ensuring that the law and any changes in the law are able to deliver effectively for the commission and for crofters, so that it can continue to be an effective regulator. That is all that I was going to say, convener, in terms of introduction. David, thank you very much. We have got quite a few questions that we would like to get through and to delve in. I would ask if possible that you keep—I will give you all a chance to answer the question if you indicate to me that you want to, but I would ask you to try and keep the answers as succinct as possible—it always helps. I think that, Mary, you are going to start us off on you. Thank you, convener. As I am sure you will know, the Scottish Government announced a review of the Crofting Commission on 7 November, and it was just really to ask you if you were content with the remit and the timescales of that review. Yes, thank you. Yes, I recognise the timescales and so on, and I believe that it is achievable and I seek to endeavour to do all that we can to ensure that that timeline can be complied with. I think that it is satisfactory. Does anyone want to add anything to what Colin Macintosh said? I would just reaffirm it. I think that it is good that there is going to be a review. I am satisfied with its terms and scope. I would see this as being—I do not want to comment on particular cases, because you have suggested that we should not comment on particular cases. I would not see this as being integral to the kind of legislative reform of crofting law that is essentially an internal review. I am happy with its terms. Joseph Eub. That is the second regulation, and I mean my staff. We would be quite happy to engage and fully co-operate with the review staff. Perfect. Second question, Gail. Thank you, convener. Good morning. Thank you for coming along. David, you said in your introductory comments about the changes from the Crofters commission to the Crofting Commission, and you explained a little bit about why that was important. In a previous session—this is our third session now on crofting—we have had various opinions about the change, whether regulation of crofting should be more devolved. We have had some for, we have had some against, about the development of crofting and whether the development function should sit within the regulation function and also that merits have elected, as opposed to appointed commissioners. I just really wanted to ask what are the panel's views about the successes or otherwise about the changes from the Crofter to the Crofting Commission, especially with respect of whether there should be a more devolved system for regulating crofting, whether the functions to develop crofting and to regulate crofting should sit with the same organisation, and what are the pros and cons of elected versus appointed commissioners? I think that you will all probably have views on that. Who would like to head off? Colin, it looks like no one is jumping forward, so it will be you. Thank you, convener. Yes, happy to go first. Yes, first of all, I would like to just state that from being a crofter myself who has a reasonable understanding of crofting legislation, I have to say that I found the 2007 act added on to top what we had followed by the 2010 act, followed on to it, something that I am still trying to get my head round. I do quite a lot of studying of the crofting legislation for various reasons, and I think that it has made it extremely complicated from that point of view. From the development function, it is not something that I have been personally involved in a lot, but there appears to be no development function at this moment in time. Previously, there was a development function with the Crofters commission, which is my understanding, worked reasonably well, people were relatively happy with it, and it delivered. I hear regularly over the past five years, where is the development function, there is no development function, it has gone to HIE, there is no money, you hear all the various conflicting arguments, but the bottom line is that there appears to be little or no development function at this moment in time. Where it would be best situated, it is not really one that I could personally call, but given the resources to the commission, I am sure that the commission could adequately deliver it, as it previously did prior to it being removed, but there is a resource issue there. The commission is stretched to the limits, so you cannot just go giving them another function without proper resources. Touching on elected appointed commissioners personally, I see a very serious issue. I see my role as having been elected by the people, but I have equal responsibility from Shetland to Arran and the Crofting Counties. It is as though I were appointed, I have an equal role. I am not there to represent my constituents in Argyll, I am there to deliver for crofting across the spectrum. I am not sure and I believe that other people do not see it that way. We are here to represent an elected area and I personally see it as quite an issue within the commission. If that assists you, I really feel that going forward you cannot have a situation whereby some commissioners are there, it is my electorate. I am representing my electorate, you are representing the Crofting Counties, endeavouring to set strategic leadership to deliver equal policies across the counties, regardless of the provisions of the legislation. You are not there to deliver what your constituents require, you are there to deliver what is contained in the will of the active parliament. That is how I see it. David, do you want to add anything to that? Yes. I would, convener, I think that the point about elections and the devolving of decision making are two connected points. I would see the commission and crofting legislation as being it is really important that it is applied consistently throughout the traditional crofting counties, which have been extended since the 2010 act to include additional areas. I think that there is potential danger in devolving decision making that there would be a lack of focus on consistency and fairness. Those who are making decisions at a local level may develop policies and procedures for their own particular regions, which is good to an extent. However, if one system of law and regulation is being applied, it is really important for all crofters to be treated fairly in terms of the law. The commission is a regulator whose decisions are appealable to the Scottish Land Court, and from the Scottish Land Court a special case can be made to the court of session. From the very lowest level of decision making right up to the court of session, it is really important that crofters, grwzings committees, every person who is subject to crofting legislation is treated within the same legal framework, whatever that legal framework is going to be. In terms of the development function, personally, I wouldn't see development and regulation as being mutually incompatible. The 2010 act emphasised that the commission has got a really important role in promoting the interests of crofting. It seemed to me that a development role would seem to be integral to promoting the interests of crofting. I would see the commission as being the body that specialises in crofting. It has a great deal of knowledge through its commissioners, staff and assessors of crofting and that it is the body best placed to deliver development policies. However, as the convener of the commission has stated, there is a resource issue. At the present time, the commission would not be able to deliver that kind of function without some additional resources for it. Just before I ask you, Joseph, to come in, I think that Stewart wanted to ask something that may add to this discussion. Yes, convener. It may be that Joseph will wish to address what I am about to say anyway. I have gone right back to the original 1886 act. One of the interesting things is that section 37 delegates to the Crofters commission. It powers under the Fishery Board Scotland act, to which is essentially a development activity. It is clear right from the outset that there was a principle view that powers over development should be part of what was operated in the interests of and for crofters. I have heard David say that it has a personal view that it would be appropriate to return to that principle. I just wonder if the board has taken a corporate view on that subject. I am leaving aside the issue of whether resources, because clearly that is a different issue. I just want to know a principle fairly concisely, if possible. If I could get maybe Joseph to come in and maybe you could answer that and the previous questions if there are things to add, then I will give you each chance to come back on the point that Stewart has made. I think that you said about the 1886 act, and that was specifically reinforced by the 1955 act, which focused on development. In terms of development, I will have to declare a double interest here, because while I have been the head of regulation for three years, but prior to that, I was the crofting, grants and development manager over the commission for about 15 years, and my job essentially disappeared in the 2010 act that came in because it took away the development function. However, even during that period, I always felt what David said there about that there is an artificial separation between development and regulation. I certainly have found that in practice, having worked in both elements of the commission's work. I was just thinking back there. In my time, I looked into the five principal areas that we were in charge of—capital improvements, housing, encouraging young entrants, community support and various livestock improvement schemes. However, in respect of how the actual schemes operated, the essential law had the same objective, and that was to do with maintaining and improving population in remote areas. A direct link with regulation in a number of areas, one would be enforcement action in terms of duties or absenteeism. Rather than going into an area with just the stick of being able to terminate a tenancy, when you also managed the young entrance scheme, you could go in and talk to people about what their options were, and there was also the possibility of support there through a kind of positive role, and so you could say, and look at a whole package. I think that there were benefits in that. Equally without the crofting community scheme, I think that work that we did to encourage crofting committees to be in place assisted even the wider community there, but if we were to work there, because the crofting community scheme encouraged Grayson's committee to work with other elements of the community and put forward a diversified plan that did not just focus perhaps on the traditional agricultural side of things, although that was clearly a key element for the Grayson's committees, but it also brought in historical societies, hall committees, warm memorials committees and things like that. We do very much think that they do work well together, and in many ways, the commission's best development tool was the strategy powers. I do think that there is a link there. Is that an individual view or a corporate view? I am giving that as an individual. David Stewart, do you want to come back for Arles Collin to make comment on that? My understanding is that the board has not reached a position with regard to development functions, but it may do so within the context of discussions that are taking place with regard to reform of the law. Would that be correct? That would be my understanding. We have had various discussions. There have been various communications sent to other agencies, etc. I would not say that the matter is under review, but it is on our radar and we are discussing it. We have no function at this moment in time, but we have had discussions. I think that it would be fair to comment that it would appear that there is a reasonable will among the board that it should potentially be brought back to the commission, but that is not an agreed corporate view. That is my reflection on the discussions that we have had, but it is not considered an agreed corporate view, if I make myself clear. If I could just make a couple of initial comments to you there, on the reflection of the elected versus appointed situation, one of the key drivers when I became a commissioner was to bring in delegated decision making, because I understood that there were a lot of commissioners from this area and commissioners from that area. We make decisions here, we make decisions there. I am personally somewhat uncomfortable that an elected member in the area, including myself and Ergyll, people come to you, my application, my this, my that. By bringing in delegated decision making, which I think is working very well and maybe my colleagues will be able to expand on it, I think that we are well down the road to bringing a much more balanced, equitable delivery of service, whereby we have set parameters and it is no longer the area commissioner making the decisions. There are, is it maybe 20% of functions, Joseph, can you help me? Still to be delegated, we may never get 100% delegated, but it has certainly moved matters forward in my view considerably. Going forward, I am not sure that it would not be a matter for consideration if the commissioner for Ergyll was made, if he had to make decisions, made them in another area, because I am very uncomfortable with this idea that the area commissioner is making decisions on behalf of his elected people, because I think that it leads to some inconsistencies. Okay, I mean, just on that, the evidence sessions that we have heard before actually have indicated the problems of people who may be delivering, I think, the example that was given their child to the nursery met the person that they were going to have to make a disagreement with during the result of a process. My question that I would like to specifically ask is, and building on what you have said, Colin, is do you believe that it is better for the staff to make the decision? I am being very careful when I phrase this as a generic thing, not an individual thing. The staff to make decisions and the team within the commission to make the decision rather than the commissioners, and the commissioners to have more of an overview of strategic policy making. Absolutely, it was my belief in joining the commission that was a role that we set a strategic overview, but it turned out that we were making decisions. People are phoning me up and I am saying, I cannot make a decision on that, I have got to declare an interest when they speak to me. That is my position. I did not fully understand when I stood for the election that people would be phoning me in a Friday night and I could potentially make a decision on the Monday, and it is not something that I sit very comfortably with. Can I ask, taking your position and maybe the other witnesses would like to comment on it, is whether that reflects the views of the other commissioners? David, do you want to lead on that or Joseph? The board has agreed to a system of delegating decision making, which has been a process, and the process will continue. It is very much that the board has agreed that this is the way to go forward. As Colin has pointed out, it has been quite a steep learning curve, perhaps particularly for commissioners who have been elected. I would rather say that the commission is, I think, the only public body of its kind that has got directly elected members, and I think that is something to celebrate in a public body when issues of accountability and democracy are very relevant. I am saying that if there are robust systems in place for decision making such as delegated decision making whereby the board has a supervisory role and is informed of decision making but does not actually get involved in individual decisions, I think that that enhances the ability of the commission to regulate efficiently and fairly. Joseph, do you want to add something there? Yes. Just before the delegation, I think that something had to happen first with the new commissioners. Certainly, David said that I was the quantity of work in the crofting bill team for the 2013 act. That was true, but when I came back, I did not go back to my post as head of regulation. Instead, that has been the next few months on a working group with Pauline, and Derek Flynn and Susan Walker, the previous convener, and our policy manager. What we were doing is reviewing all of the commission's policy and procedures in light of the changes introduced by the 2010 act. We were ensuring that our procedures were fully compliant and that our policies were fully compliant. That was a necessary stage before we could start delegating anything. We had to go through that process first. Since then, we have had a roll-out of delegation. It is an active thing. At the last board meeting, we agreed to delegate a further two and a board paper to the next meeting. I am proposing that a further four function be delegated. It is an on-going programme, and all the commissioners are signed up for it. It is very important to emphasise that, although the staff are making the decisions now in the majority of functions—and we are getting to the majority of functions now—they are doing so within parameters set by the board. The board is setting the parameters under which we as officials operate. It is still an important role for them, but it is moving away from the individual decision-case-decision role. When this all began way back in early 2013, it was myself and Susan Walker, the former convener. We had some difficulty in getting some commissioners to even consider accepting it. I have got to comment that Susan Walker, our convener, did an enormous amount of work. I did myself to bring this to where we are today. I really feel that it is probably the biggest step that we have taken in the past four years to bring impartiality, fairness and equality into the overall picture of Crofting Commissioning for our customers that we have now got to where we are. It is also a credit to the staff that they have delivered. I feel very strongly that it is not out in the public domain yet for people to fully appreciate the difference that is made. That is how I feel. I do not know Joseph Ewing, but I would agree with that. That is how I personally see it. Having worked with Susan Walker, I know that she is very good at finding a clear line and doing it very gently. That is a valid comment. Peter, I think that you would like to ask a question. I do not know if this is possible, but I find it slightly difficult to hear what David is saying. Is there any way that we can up the volume slightly? I know that it is my problem, because I have spent far too many years on noisy tractors in my youth and my hearing is not the best, so I apologise to the rest of you if it gets too loud. I am struggling with David's answer. My questions are about the register of crofts. We have heard that there is concern about the costs involved in the registration of crofts. We have also heard that there is a process of mapping common grazings, which we have heard is ground to a halt. What are the panel's views about the operation of the register of crofts, in particular related to the costs involved, the mapping of common grazings, and why the process has ground to a halt? Whether a mediation service might be useful in cases where parties dispute information on the crofting register, possibly as an alternative to the going to the land court. Joseph, would you like to lead off on that? I do not always want to put Colin up first. I am quite keen that perhaps we could have your opinion first. That would be good. The difference between a register of crofts and a crofting register has been a register of crofts since 1955, which is maintained by the crofting commission and continues to be maintained by the crofting commission. It contains a history of the croft and every regulatory phase that is went through and every individual who has held the croft and all the rest of it. Every croft is on that register, but there is a new register that is partially complete. That is correct. In terms of numbers, the register of crofts has over 20,000 crofts on the register of crofts, which is maintained by the crofting commission. The crofting register has about 3,500 registered crofts in it. It is coming up for its fourth birthday, and only three of those years have been compulsory. The first year was voluntary when there were hardly any crofts registered. People were aware that it was going to become compulsory, linked to certain trigger events, because I think that most people held fire in doing so. There has been lots of issues with respect to that. I was involved in quite a number of the road shows. One of the biggest elements of surprise that people had was when they realised that the £90 fee was not a one-off. The £90 fee is encouraged every time a trigger is met. That was not fully understood at first. I think that people thought that there was going to be one fee when a croft was registered. However, there is now a recognition that it is something that you have to live with all your crofting life when you come to engage in certain activities. However, the commission works very closely with the register of crofts, with the Registiffs of Scotland team. In fact, I was down yesterday with my staff who work in croft registration, and we had a day with the team in croft registration with Royce. We had a good day working together and looking at different issues that we have worked through. In fairness, I think that there is free and a half thousand to the credit of crofters that they have engaged in the process. I think that that has been very positive. The thing about the whole purpose was to give people a greater legal certainty over what it is that they occupy, because the crofting commission's register is not land-based, it is map-based or tall. In areas that we do hold, the land court had judged in previous decisions that they could not be taken to be affordative, so at least that is establishing a greater degree of certainty for what people occupy. However, there are issues with it. One of the issues is the relation to deemed crofts. A deemed croft is where someone tenants a croft land and an associated share that purchased the croft land but not the share, and the land court has confirmed that that share becomes a separate legal entity. If you are going to assign that share or do something with it, it has to be registered. You can see perhaps the benefits in your croft land being registered when your grazing share registered in a deemed croft does little more than we are already holding in our register of crofts. I think that there is an issue with deemed crofts. I think that there is an issue in terms of processing, but in the vast majority of cases, I think that there is only one exception. You do not have to submit your registration application at the same time as your regulatory application, which for administrators is a nightmare, because you are getting something in and you cannot really do anything with it until the croft is registered. There are some practical difficulties, but we have been working through those along with Ross. I know that Rosa has regular roadshows in which the commission tries to attend and deal with people's concerns and inquiries about it. Where are we mapping the common grazings? We are mapping the common grazings. We have mapped about 333 common grazings, and there was about 90 and 100 common grazings that we were still engaging with at the time, essentially, when we ran out of money. We were getting a specific sum of money from the Scottish Government as a specific project to map the grazings, and we do not have that resource any more. Do you feel that that is a resource that you would like to have? Do you feel that it is an important part of the regulation process that these common grazings should be all mapped? Very much so. In fact, if you do not complete the project, you are part of the common graze, and that is by far the biggest area of crofting land is common grazing land, so it is certainly something that you would want to continue with. Can you just clarify? You said that there were 333 common grazings that have been registered. There were between 90 and 100 that you were discussing it with. So we were at some stage of engagement. Some of those might have been very initial, but some of them would have been quite well developed. So how many more are there around that you are not engaged with? About 4 to 500. 4 to 500 still no engagement? There is no money to continue that process. I was going to go to David and maybe ask David at the same time if he would deal with the question of mediation, because that may follow what he may have views on that. Thank you, convener. Can you hear me better now? Yes, I am speaking a little bit closer. Can you hear your phone now? Thank you for raising that point. Joseph has set out the main issues that we have with the crofting register, which is to do with the deemed croft registration, which many think is unnecessary and an unnecessary expense. There are also advertisement costs associated with the registration that some people consider to be over-the-top and add additional expense to what crofters are doing. In terms of mediation, I actually think that mediation is a very good idea. Mediation is a way of bringing people in a potential dispute together and reaching pragmatic practical agreement that avoids the expenses of litigation. If some kind of mediation role could be set up to look specifically at croft boundaries and common grazing boundaries within the context of crofting register disputes, I think that that would be a great step forward for crofters and also for grazing committees. I would rather say that the Land Court is often referred to as a layman's court. You do not need to have a solicitor to go to the Land Court. The Land Court deals with croft and boundary disputes very effectively, efficiently and fairly. I think that for those who do go to the court, they get a very good service, but I agree that mediation would be a very pragmatic way forward and would avoid the need to litigate. Colin, do you want to add something on this? Yes, thank you, convener. I come at this from a slightly different perspective. I am a crofter and I hear crofters on the ground and at a cost of £90 to register your croft, two consecutive weeks in a newspaper circulating in your area, in my area, local paper open times £240 for two weeks, £90 comes to £350. Your average crofter cannot grasp exactly what is required in the registration. You read the legislation, 20 times and you are not sure, so you have to go to your solicitor and pay a fee to make sure that you are getting it right. I had representation from one man on my neighbouring island of Tyrie, who has got 14 crofts. It is going to cost him over £5,000 in quiddy felt to register his crofts. He just could not do it, he was telling me. There is an element there that does the registration require the complexity that is attached to it. The gentleman here, I believe to be the authority on it. I have had a number of discussions with him and he has been very helpful, but I go away and I say, I do not remember half of that, dead serious. I am saying what I am going to do and then I go back to the act and I struggle. Your average crofter or more than your average crofter really cannot make any sense of it, so you have to go to the solicitor to get advice. The cost of this registration is one thing. I am familiar with a case where there is a croft in the crofting register. It is declared as a croft, it has a boundary, it has a landlord, it has a tenant but the land court ruled it as a croft that can be bought. I am not sure what value the crofting register has brought in the situation. That is a separate issue. There is another issue from a practical point of view being a crofter. We have deemed crofts within the common grazing that are marked by an X on the map. The court has ruled that all the statutory definitions of a croft have to apply to a deemed croft. That was in the commission's reference in 2012, so all the statutory definitions apply. We have crofter A with a deemed croft and we have crofter B with his croft and his right in grazing and we have an IACS map. Does the deemed croft take precedent over the right in grazing? You draw the boundary around the grazing of the IACS map and to put it in short terms, people just do not understand it. I have a reasonably good understanding of it but it has either got to be a common grazing or a croft that cannot be both. Here we have a legal entity known as a cross, somewhere in 5,000 hectares, maybe 7,000 hectares, 50 hectares, it is a cross. How does your average crofter understand that? They do not. I struggle to understand it and I have a reasonably good knowledge of it. The point that I am trying to make to you is that the whole croft registration needs to be a complete revisit, to be simplified so that people can understand. Yes, crofts need to be registered to give certainty, but the current system is creating more confusion than I can comprehend. I think that we are definitely going to be coming later on and asking you a question on whether crofts should be separated from common grazings. That is a separate issue, or that common grazing share that was allocated to the croft. I thank you for that, Colin. Stewart wants to come in, so I am going to let him come in again and then come back to you, David, if I may. Because of what I am now going to ask, I declare that I have a three-acre agricultural hauling from which I derive no income, which is registered on the IACS. The IACS map is quite different from the one in my title deed. I just made that as an observation. However, I just wanted to allow the panel to perhaps agree with that we are not really going to get anywhere unless we have maps that are applicable across ownership of land, entitlement to rights in that land and access to rights that come under various pieces of crofting legislation. Unless it is one set of maps, we are always going to have difficulties. I illustrate that from previous experience. I know that there was a dispute between the airport of Bimbacola and the adjacent crofters, which entirely derived because I saw the map from the fact that it was a tiny scale map and the chalk line that had been put in the map when you put it in real life was 100 metres wide. Therefore, there was a dispute as to which edge of the line was the line. So many of the disputes are going to be because we don't have maps that cover the whole thing. Would you suggest to us that getting a consistent universal mapping that is legally enforceable in all contexts ought to be an objective for registering all interests in land and all land holdings in relation to crofting? David, do you want to head off on that one? Yes. I would very quickly address a previous point, which is in connection with Common Grazing's registration and the concerns that that process has stopped. One possibility for future registration may be to allow Grazing's committees to apply to register common grazing, and so some of the present impasse could be overcome if that were to be considered. In terms of registration and map-based registration, I agree that it is important that crofting interests and interests in land are registered. Mapping is a very imperfect science. The scale of mapping in much of the highlands, in rural highlands, is 1 to 10,000, which is a very imperfect scale. When you get down to precise croft boundaries, you are talking about a very considerable margin of error. The topography of the land is not reflected on the map, so when you have the combination of a 1 to 10,000-scale base map from ordinary survey plus undulations in the land, perhaps deeply sloping ground, it is very difficult to register that land accurately. Whether it is a register of land, or whether it is a register of crofting, both have to grapple with those technical difficulties. However, the broader point about all crofting interests being mapped comprehensively, I agree that that would be good for general transparency, public transparency, into who owns land, who has interests in land and what the status of land is. Can I just engage on the issue that David Finlay has raised? Mapping is an imperfect science, and perhaps put you to him that using the WGS84 standard, which is one of over 100 mapping standards that are international, is now the most generally used one. Aviation is now mapping in three dimensions, height as well as terrain, to within 500 millimetres. Is that not good enough for our purposes? I understand your point, Stuart. I am concerned that the Government, having not been able to find the mapping previously, may not want to go down to that level of detail. I want a principled point. However, I think that the generality of being accurate mapping, in the sense that the FIS maps that we have, is that there is a way of making it work without going down to the last decimal point? Yes. I emphasise that mapping is the responsibility of registers of Scotland, not the Crofting Commission. Development of mapping technology would be developed by registers of Scotland using whatever technologies are available, but at the moment the margin of error is quite considerable. However, notwithstanding that, I would consider that from a purely crofting perspective, mapping gives greater certainty as to the status of land. For individual crofters who want to know what they own, for their solicitors who want to know what they own in the context of buying, selling and assigning croft tenancies, it seems to me that a map-based register provides not a perfect but an imperfect element of certainty that is good for crofters and good for crofting. Colin, do you want to add on the mapping? In broad terms, I feel that every crofter is to their own advantage to map their croft. I feel for the sake of your £350 to average register your croft and advertise it. I think that it gives you certainty and security of what you have or occupy. From that point of view, I think that it is excellent and that it should be carried on. It is all the layers on top of that where every time you do a transaction, a sale or whatever it may be, there is another trigger point, and that is where I think that there needs to be a bit of simplicity brought into it. Common grazings should be a blanket mapping exercise carried out. We have a lot of maps going around arped, iAX maps. There should be a blanket form of mapping. Get the whole thing mapped and an arm estate. We are doing all the maps. You have got 90 days to check it. If you have not come back and said that it is wrong in 90 days, that is it. End of story. We then have the system all mapped. The problem that I have within that map is who, what, why, where are the rights. Some folk own the rights, some folk have rights as part of their croft tenancies, some have deemed crofts. There are various sorts and types of rights. It is how you record the rights. One of the problems that I see the commission, which we have not even looked at, is that we get an application in. Some people have in their title deeds the rights contained in it. The court reference in August 2012 declared that, by a separate inclusion in the disposition a crofter can purchase his right. Provided that it is in a separate inclusion in the title deed and not under parts pillars and permits, then you own it. It is impossible for the commission to be recording all that, looking at title deeds when we get applications. The map is one issue where the rights are vested is a much, much, much more difficult issue. Quite how you would address that when it is beyond me. I do not know of any, but the gentleman beside me has any comment to make on that. That is, to me, a serious issue. Joseph, hopefully you are going to give us the answer. Yes. Mapping is just one of the issues. At least with a croft, we can refer to our register of crofts and know who the principal parties are. We know who the tenant is, the owner of a crofter, the landlord, the sub tenant if there is one short-term latee. The problem with a crofter's common grazing is that there simply needs to be a plurality of crofting interests for it to be a crofter's common grazing. Every one of the rest of us could be non-croft shareholders in that grazing. We do not regulate that. The other thing that you have to capture is who holds the right in that grazing, and there is a lot of work involved in that as well, especially since we are not—these people are within the Scopody Act for certain purposes, but outwith it for others. It makes it very difficult. If I could just add, we would need to check every title deed. Before we could get an accurate account, we would need to check every title deed. Who won't what? It is a monumentous task. Okay. Unless there is anything else on that, I am going to move on to the next question, which I am going to ask. One thing that has become absolutely apparent over the years is that if crofting is to continue, it needs a future and it needs new and younger crofters coming in and working their way up. We have heard evidence from that during the sessions that we have had. My question is based on that. Has the enforcement and the regulations on absenteers and neglect led to the freeing up of crofts and are there concrete examples where those crofts have become available to young crofters because of those regulations? I do not know who would like to lead on that. You are all looking— Oh, yeah. Anybody else want to speak up? There are a couple of things there. One of the things—the 2010 act brought in a specific duty to be resident, etc. Before then, there was just a right for the commission to take action where someone was not resident. That is just a specific duty. It also brought in enforcement powers in the commission as well, but they are very convoluted. I think that there is about four separate appeal provisions in it. Therefore, while the commission uses that, we put the emphasis on encouraging someone who is in breach to resolve the breach themselves. Either through themselves taking up residency or starting to use the land, making the croft available to people on anasignation or a short term, basically, or a subletting. We have been successful in that. After the first crofting services, we wrote to everybody who was in breach of duty, and we set out various options to them. Since then, we have got a lot of applications principally in terms of subletting and short term writing rather than anasignation, but there will be anasignation cases as well. In terms of taking a case through to where we are asking people to resolve the matter and they refuse to do so, we continue with action. Last year, we dealt with about five cases like that, and certainly there was a young crofter part of the SCF youth—I cannot remember the lady's name—in the sky, who obtained a croft because of that. We have a number of crofts where we have terminated the tenancies, and in the next few weeks or early months, we will be advertising those. They have now come to the commission to advertise and we will be taking those forward. David, do you want to— Yes. As Joseph has said, there have been some real stories of crofters who have entered new crofters who have entered the system. The commission cannot—age discrimination is not something that we can promote, so a potential crofter—whether he or she is in her 70s or 20s—can't be any discrimination based upon age. I think that the emphasis would have to be getting new people of whatever age into crofting and into active crofting. As Joseph has said, there are some good news stories on that particular front. The problem that I have as a lawyer is that the duty sections of the act are really complicated. Time intensive and resource intensive as well means that the commission cannot take the kind of duties action that it would otherwise be able to take were the legislation to be much simpler and more straightforward. The underlying principles, the underlying policy, it seems to me, is quite simple, but the process set out in the legislation is anything but. Colin Smyth. Thank you, convener. Yes, I would endorse what David has said here in full that it is a very convoluted and difficult process, time-consuming, very onerous. The commission has engaged the process with limited success, potentially. At one stage from my memory, I think that the commission had terminated around 44 tenancies and a random figure, but some two years later, 30-something of those crofts were still lying vacant. As I see it, there is a demand for crofts. We talk to young people and there are two scenarios. If you are fortunate enough to obtain a tenancy of a croft, you are getting free land, you have access to land, potentially build a house, et cetera, there is equally a substantial number of crofts for sale. There are assignations for sale, there are owner-occupier crofts for sale, and people—I do not know, but it would appear to me as sitting on the outside looking in—that people do not have the funding to go and buy the croft. There is a great demand for crofts, we are told. We hear about it all the time, but a croft tenancy for £20,000 can get you a croft. You can buy a owner-occupier croft with a house, maybe for £100,000 to some of the places, but they cannot get the money. The real demand that I see as a crofter living in the islands and in the heart of it all is that we cannot get money to buy the croft or to borrow or whatever. We cannot get mortgages, but if we can get a tenancy free of charge, we are going places. I feel that there is something that has to be looked at, examined and a solution to come up with, because there are any amount of crofts out there on the market, but it is getting the means. I spoke only recently with someone in the financial industry who had an application and was trying to give money to a crofter, and he could not give money. My point of answer to you is that, yes, there is demand for young crofts and old crofts, but it is getting the money. There are crofts there. If you get a tenancy, you get a croft. Most councils have presumption in favour of planning on a bare land croft, so you will get planning. You have now got the grant system, which is much appreciated. You have got £40,000, and you are on your way to getting somewhere. However, if you could borrow the money at reasonable rates, you could be there much quicker. If you comprehend what I am saying, the real issue that needs to be looked at is that the drive for duties to freeing up crofts is to free up free land, whereas, if the focus was going more on or equally on, how do you make it available that people can get money, you could satisfy a lot of the demand. That is how I see it. Richard, I think that you have got a question now. I have got a number of questions. Based on the last one that we heard about this last week, what about the Highlands and Islands, given loans to people to encourage that HIE? Could they do that, or should they do that? Do you want me to comment again? I might understand that every time we have spoken to HIE about this matter, people from the board of HIE have not done anything with us. We would only deal in crofting communities, individual crofters. I work for a bank for 10 years, so I know the problem. I will not name the bank. I am a lowlander, but I think that crofting is an integral part of Scotland and has to help. What you have laid before us this morning is confusion all over the place with the greatest respect. One of the situations—I respect the point that you made earlier about people being elected when you are a council and elected on to that council—is to represent area, but also to see the bigger picture and to represent the whole of the country or the area that the Crofton commission. I agree in a respect of comments from earlier on. What would be the final cost to get all this mapping done because, with the greatest respect, x-marking in the spot is not good enough? What would be the cost, since you get that taken away from you, to get all this done because if we do not, we are nowhere? What would be the cost? Before I go on to the question, I should be asking— Can I ring? Is the budget £100,000? We have got £400,000 and £12,000. Right, £400,000, so I would re-extrapolate that from the £3.30 to the £3.30. I will call it around half a million. Thank you very much. Oner occupiers—again, I will go back to the terminology of the council. When you were a council tenant, you were done with what the council told you. When you bought under the legislation your council house, you then became an oner occupier. So when you buy your croft, you become an oner occupier. We get several different views on this. Patrick Cross and others argued that anyone who occupies a croft should be subject to the same rights and responsibilities. Murray McShane, on the other hand, said that he does not understand why oner occupiers are subject to the same conditions as other tenant crofters. He argued that there is no good reason for this. Changing this would be a big step in simplifying crofting legislation. Is the legislation on oner occupiers crofters clear and simple to apply, or is it just the confusion that you have painted this morning? Can I start by saying that the 2010 act brought in a very good provision, and that provision was that the right to buy was awarded in 1976 by the 76 act, so people had the right to buy an absolute right to buy your house site and a qualified right to buy your whole croft. Quite a few people took advantage of that, and a little thousands. However, what it continued to do was that, even though you purchased as a tenant, what happened to the croft status was that it was vacant, so you immediately lost your status as a crofter. You were an oner occupier, but you weren't a crofter, and that croft was vacant, and at least in theory capable of requiring the commission to let it to a tenant. The fact that the commission didn't or did was a policy decision and not a legal question, so basically they were a landlord. It's the same as anybody else who wants land is a landlord, but a lot of these people purchased the land in order to occupy and work it. The good thing about the 2010 act is that, for the first time, it recognised those folk as crofters, and that was good. It took away their vacant status, so that was a very good outcome. The problem was that, because of the definition of oner occupier crofter, it has left about 1100 crofts—there will be more on that—where they are held in ownership, but they do not meet the oner occupier crofter criteria. You have tenants, oner occupier crofters, landlords with tenants, and now you have this new category of landlords without tenants, but where the crofter is vacant because they do not meet the criteria, and that is very confusing for people to know exactly where they stand. The first thing is to look at—I would say to—and there is obviously a thing about being subject to the same terms as tenants, but they are not throughout the act. There is an inconsistency. Where you do qualify as an oner occupier crofter, you are subject to the residence part, and you are subject to the land use part, but there are other things that you are not subject to, and there are other rights that a tenant has that you do not have, so there is an inconsistency there. There are only some of the provisions that relate to tenants relating to oner occupier crofters. They share some things, and they have their own path in others. All the things that we have done and all the changes that we have had over the last number of years have actually made this more confusing rather than making it more easy to understand. To my mind, if you are an oner occupier with the greatest respect, and as I say, I respect the tradition, but at the end of the day, a crofter was a terminology when basically a landlord, or a lair, or whatever, and they gave it to their local folk, and their local folk paid a fee, and they became a crofter. They tended the land and worked the land and fed their family. I do not make it through, you know, the tradition better than I do. Here we are in a situation in 2016 that crosses and also the confusion of what is happening. I really envy you guys with the problems that you have got, you know, because it is a thing. Oner occupier, just to finish, oner occupier, she did not actually be physically taking out the scenario now because they own, they are not a lair, they are not a landlord, they own their own piece of land, so therefore they are like any other farmer in Scotland. Do you not agree with that? David, come to that and Joseph, come back. The question being asked is an oner occupier, a landlord, and a tenant, and should they no longer be a crofter? I do not know. Yes, in answer to your question, I would consider that there are higher level policy issues to address here. Should Crofts, and I am talking about oner occupied Crofts, as well as tenanted Crofts, should Crofts be subject to absentee action? Should Crofts be subject to action where there is neglect? I am very suspect and sorry. Again, we are going down a road that is going to confuse. The tentacles seem to be growing every five seconds. Simple. I am an oner occupier, I was a crofter, I bought my land now, I own it, I can do as I want. The Crofting Commission cannot tell me what to do in the story. I now own that land, that is it. It is subject to a scheme of regulation because a croft, once the old system of land holding before they formally became Crofts in the 1955 act, a croft once created can never be, as it were, taken away unless it is resumed or decrofted. Once a croft comes into existence, it cannot disappear from the crofting system unless it is taken out of crofting by either of those two processes. It would be potentially subject to re-letting. It would be subject to Teutie's action under the 2012 act. I think that this is a high-level question as to whether it is a policy objective to ensure that Crofts collectively, however their own, are subject to regulation on absenteeism and neglect or whether only some Crofts are subject to that scheme of regulation. If you want, I cut you off and then I'll come to you Colin. I cut you off to give David a chance. It's a difficult one because the 2010 act, one thing it tried to bring in was a degree of parity between owner-occupier crofters and tenant crofters because I certainly, the commission used to have a presence at the black house show every year and there was a particular gentleman who used to come and speak to me in the afternoon to say that the then crofter's commission went up and down the country encouraging everybody to buy their crofts and he exercised that right and then he promptly went in to claim a grant and was told now you're not a crofter, you don't get any grants. One thing a 2010 did, it says that any grant schemes now they have to give the same access facility to owner-occupier crofters as to tenant crofters and I know that CAGS was a new statutory mention brought in to do exactly that. Are we going to take away the support system from them if we take away the regulation from them as well? Do you want to come in? Yes, in answer to the gentleman's question, prior to the 2010 act, it's my understanding and reading from section 3 of the act meaning of croft and crofter. In this act, crofter means the tenant of a croft. So once you've bought the croft, you want a crofter. You want the tenant according to what the act says. It now goes on to say subject to section 3 said A2C which says from the date of registration, any person of the time being entered in the registration schedule of the croft as the tenant of the croft is a crofter. So that was introduced but from 1976 to 2010 you want a crofter. You want your croft, you want a crofter. So you're the landowner of a vacant croft who was the provision in section 232 was that you're potentially a criminal. You could be a criminal if you didn't comply with it. So not a great position to be in. Me personally, from my crofting perspective, I see all the difference in the world from another occupier crofter to a tenant crofter and only last week I was asked by a man a simple question. He said, that's a croft calling in that side of the road there, he says. Somebody wants to buy that corner off, meet, build a house on it. What do you think? I said, you need to make an application to a crofting commission. He says, but they refuse it. I can't guarantee that. I said, go through a process. The man on the other side of the road there is not a croft. He says, he can do what he likes. He says, I own that land, he owns that land. He says, and I can't do what I want with my own land. Me, Colin Kennedy, on the other call talking to that man, I see a serious issue there, a very serious issue. I've got to emphasise not on my crofting convener at my head, I told him to go through the proper process that will be treated. I see a serious issue, and I really think that's got to be addressed, because when you own your croft, there is all the difference in the world from the tenant of the croft. If that helps to answer you, that is my view. That is my point entirely. That's the point that I'm driving at, the difference, the confusion. The people who are not being treated fairly and the honest is on you to try and solve it and try and be solemn based on acts that are confusing. If I could move that forward, my view is that there is a presumption against the crofting at all times. Crofting croft land is sacred. There are less and less animals, and your point, crofting was set up to feed the family in 1886, a cow, a sheep, a goat, a hen, all the things you required to live. It wasn't about making money. Today there is no requirement in the Crofting Act to keep a goat, a hen, a sheep. What have you? What is so sacred about the crofting land, from my perspective? What is so sacred about it? It's about communities, it's about keeping people in rural areas, about infrastructure, schools, all the things that I don't need to name, and I think that the wider picture needs to be looked at in a bigger context, and what are we trying to preserve is that people, communities, what are we doing? Are we preserving land that's going wild in the highlands? Thank you. Just so, but if you allow me just to be clear, I totally agree with you. I want to keep crofting in Scotland, I think it's a great tradition, but I want to see fairness and a better system for crofters and for the people of the highlands. I couldn't agree more, thank you. I think that I'm just going to leave that one there if I may, because I think that it actually goes to the crux of the problem, which I think we'll be looking for some guidance from the Government on that. John, I think that there's— Thank you. Yes, next on to me, and I also confess that I'm from the city, I'm from Glasgow, so I do not have an intimate knowledge of crofting, but I'm getting into it a bit more. We've mentioned common grazing before, and I wanted to ask about grazing committees, and without getting into any specific cases, but really just is the legislation that the Crofting Commission has to apply to grazing committees fit for purpose, given that, as I understand it, the whole picture has become more complex with subsidy regimes, environment obligations and renewable energy opportunities sometimes on the common grazing. I've been told by the experts that I should look at the Sharksmith report, which I have been dipping into. It says that, at community level, grazing committees should be modernised to become crofting township development committees and a broader remit and more inclusive membership, their primary function will be to develop and agree strategic plans for local crofting development, which, I'm assuming, hasn't happened. I'd just like your comments on grazing committees. I'm going to let Colin go first, and if I could just reiterate that I'm looking, as the committee is, at the big picture and not specific examples, if I may. Thank you, convener. My position is that what the act provides for at this moment in time is relatively simple in terms of common grazing. If we want to change it, that's a separate issue. I can address what the act provides for. The act provides very clearly that when crofting was set up way back in 1886, large numbers of crofters within a crofting township and it was appropriate to make a small committee 3, 4, 5, 6, however many people to manage the grazings and basically take their term in office to deal with things, make grazing regulations, which were approved by the commission basically as fit for purpose for that area and in broad terms compliant with the law. The powers given to them are vested in section 48, one of the act. It's to maintain the common grazings, namely if there's a fence needing repair, the ditch needing fixed, what have you, those powers are vested in them and it is quite clearly set out that the moneys for those maintenance matters should come from the crofters to deal with it. There is provision for improvements and if the improvements are not agreed by all the shareholders, the provision is there to call in the commission as the final arbiter and say, yep, that improvement is required, we approve it and the matter goes on and they've all got to pay their moneys. To me, the role of the grazing, sorry. No, I was just going to say that that's the scenario where the individuals have to pay in to the fund. What happens if the common pot actually has money in it? Is that also clear in the legislation? Well, it is my position that the only provision in legislation where money would come in other than from the crofters is in section 21.4 under assumptions where a landlord or landowner, as the case may be in the common grazing, wishes to resume land from the crofters and there is a provision in section 21.4, I could read it if you so wished to you, but whereby the money is payable by the landlord to the grazing's clerk for onward payment to the crofters. There is a provision that should the crofter not wish the clerk to handle the money, it may be paid direct to the crofter. The law has at the moment, but what about somebody wants a winter by and what happens then? I was going to come to that, so that's the only provision that I am aware of in crofting legislation whereby moneys come in to crofters. The moneys come from crofters to the grazing's clerk for those matters, but section 50b has been introduced at a later stage, I can't be precise, do you know of David when it came in? 2007. Section 50b whereby you can go through a process for doing other things in common grazing which provide and you know you've got to involve the owner, the crofters, the committee and the commission, you know that there's a fairly reasonable not too onerous provision, but it's my understanding to date and maybe my colleagues can assist me. I don't think that the commission has ever received an application under 50b. We're dealing with a couple at the moment. Well, there's a couple coming in now, but today we've never had one under 50b, so to answer your question, there is no provision that I am aware of other than for assumption money for a grazing's committee to be making money. I mean you've used the word reasonable there, so that suggests to me that the present system is working. I mean you also said if they want to change it, I'm not quite sure who they might be. I mean we're here partly to see as the present legislation working but also to listen to recommendations as to how it should be improved because we then need to decide should there be new legislation, so I'm interested to know in this area around grazing committees. Are you happy with them? I wouldn't, you know, I don't want to touch and respect the conveners, I don't want to touch on current line issues, I want to keep as far away as I possibly can, but from my perspective, in the majority of the Crofting Counties, the legislation regarding common grazing is working adequately. We have no issues of which I'm aware, there are certain specific areas where there are problems or issues which may arise from the law as enacted being deviated from. If that's a fair way of describing it. Right, but my key point is do we need to be pushing to change the law and I'm getting the answer that we don't? I don't personally feel if the law is compliant, I don't feel the law on grazing on common grazing section 47, 48 and 49, I feel it's not far away from the mark. David, would you like to? Thank you convener. It seems to me that there are two issues here. The first is the present legislation and the second are proposals for reform. I think it's really important to appreciate that the Grazing Committee is essentially managing the individual crofter's right to graze, so it's intimately connected with crofters and the pertinental right that they have to graze over an area of land together with other crofters. If it is the Government's view that there should be wider social, cultural and environmental benefits associated with common grazings that deliver wider benefit, then a completely different system of regulation and a completely different system of law would be required to do that and it would detach the common grazings and the benefits that can be derived from it away from the crofters who are the ones entitled to a wider community, so that would require a change in the law and I don't want to provide any view as to whether that should be changed or not, but from the commission's point of view I would say that sections 47 through to 49 are fairly clear, but I think to be honest and frank, some grazing committees are carrying out activities that under a question marks as to whether or not the commission can regulate them in terms of the act. That's a situation that has arisen and I don't want to comment, convener, obviously on individual cases and I think that that is an area for debate, but I do think that it is clear that grazing committees are there to manage the grazings for the crofters. They have a role to improve the common grazings as well and it's a particular procedure for doing that, so the law at the moment is not as unclear and not as out of date as some people might be suggesting. I think that the individual grazing committees are pretty clear as to what they can and cannot do. I think more or less so. I think that sometimes the situation is complicated by the fact that although the legislation is pretty clear, there are also grazings regulations that are applied in addition to and as part of the legislation and sometimes the regulations may add layers of complexity and uncertainty and one thing that the commission is currently working on is to simplify regulations so that, going back to your very point, the crofters who are sharing in the grazings and the committee members are clear as to their rights and responsibilities and how far they can go with their role as a grazing committee. That's helpful, thank you. Joseph, do you want to add something to that? The only thing that I would add is that there is an element of confusion about where the grazings committee and the shareholders in the grazings are engaging in something other than simply grazing the land. Simply we know that because of so few applications that we've had to use the common grazings for something other than cultivation, which is a requirement under the act, but we see very few applications. Until very recently, ARPD had in their guidance for SRDP that the Crofting Commission had to give their approval to any project that was applied for and that's simply not true, there's nothing yet to say as that, but what we do, what a grazing committee does have to do, it needs to come to the commission for approval, not of SRDP funding or anything like that, that's not our role, but to engage in something other than cultivation and that's not how. Just before we go on, because I'd like to weave in another question, if I may, with Johns, is that one of the things that we've heard mention of is that the separation of shares in the common grazings from crops and X marks the spot of your craft in the common grazings and that that may stop young entrants coming into crofting. I wondered if you had an opinion whether you think it's appropriate for people who aren't actually crofting to retain shares or if they've sold their croft to retain shares in the common grazings, so Colin, you indicate that you want to speak, can you weave an answer to that one as well please? Absolutely, it's a legal right, you know, if you sell your croft providing you comply with the legislation, you sell your croft, section 34 I think of the act clearly states that if you sold your croft the right has not been sold, it's a separate entity, it's to be treated as a deemed croft, so you hold it as a deemed croft. Section 35, if you apply to a portion of that right and you get an apportionment from the Crofting Commission then it is deemed to be a croft, you know, so before apportionment it's marked by an X, but once you've got an apportionment it's got a boundary. I'm going to declare an interest now as a farmer in the sense that I farm, one of the things that I found was quite difficult was slipper farmers and I'm glad that the regulation has changed, that we are getting rid of that. It's some indication that somebody has mentioned that somebody could have shares in the common grazing and benefit from income from the common grazings are getting, but actually not doing anything for crofting and stopping young crofters coming in. I understand it's a legal right. Well, I've questioned on many occasions how the deemed croft marked by an X is eligible in an IACS forum where you've got to have a FID and a field identification number and a map and GPS, you will be familiar with all the current regulations. I've repeatedly questioned over the years how does an X square up for the IACS requirement and nobody will address the question. My view, it doesn't add up. I don't think I could produce a map and say there's an X, that's my share in the IACS. It doesn't work. There is a grey area, there's an area that needs addressing. I could go further into it, but I don't know if it's such a point. I think your answer gives us a pretty clear indication. Joseph, if you were indicating you wanted to say something. If you're happy to leave it there, I'm happy. David wants to say something nice. Just one point. I think that the deemed croft situation arises because of the right to buy. It's an integral part of the right to buy the croft because when you buy your croft land, in order to preserve the integrity of the share that was associated with that tenancy, therefore the tenancy has to become an independent entity in its own right. If the Government is minded to address the issue head-on, it would have to go right back to 1976 and look at the fundamental provisions of the right to buy, what they mean, whether crofters can buy their grazing right or not. All of those difficult legal issues would have to be tackled head-on. I need to declare an interest as a farmer, because I'm going to speak a wee bit about claiming subsidy regimes from CAP monies. Is there a confusion as to who claims BPS and environmental schemes money between the grazing committee and the individual crofters? Is there some confusion in there that we need to examine and I would like an explanation on how that works in practice? That's a very quick point that I was going to make before the gentleman spoke. If the matter is going to be resolved, first of all you've got to understand the legislation where it all begins and the rights of crofters. It's my understanding that the rights of crofters are clearly established and statuteed in authority. Crofters are right to eat grass for his animals, namely assuming in the common grazing. So many sheep, so many cows, a horse, whatever. You have a right to cut peats, you have a right to take thatch for your house, you have a right to overturn your boat, clean your fishing nets, access to the sea for seaweed for the land and in arable and macher you have a right to crop. I think that that is the statutory rights of crofters. So the question that arises out of all this is if, and I repeat, if we're going, you wish to get the matter resolved going forward, who occupies the land? Occupancy of the land is the fundamental key issue that I see. Those are the crofter's rights. Does the crofter occupy the X on the land? Does he occupy the land? I'm not in a position to answer it, I have a view. I think that the answer to the gentleman's question is who occupies the land if you're going to go back and we're going to be looking at a modern crofting world where the Grayson's Committee does that. I think that we've got to look at the EU legislation of who occupies the land and get back to the fundamental basics. If that was achieved, then the crofting commission would have no difficulty in regulating, but the difficulty that we have in regulating is, A, we don't know who occupies the land, we don't know where the X, what the bound of the X is, and you gentlemen are farmers, so am I, and if you know your way around the IAC system, I think that you'll know exactly what I'm coming from, with no disrespect to other people who are not familiar with it, the root of the problem lies in who occupies the land. To me, and the crofting commission's problem is we're grappling and trying to deal with something which is unclear in legislation to us, and it comes down to ARPD how they determine, interpret what's going on, and they interpret. We give you an SRDP scheme and then that impinges on the rights of a crofter. The crofter comes to the commission under section 47.8, I think it is, Joseph. We have a process for section 47.8. The crofter comes and says, my rights are being violated by this scheme, being administered by ARPD. We are restricted to the rights of crofters, we can't deal with ARPD schemes, and that all goes back to occupancy of the land. If that assists gentlemen in any way in what I'm… I'm mindful that this is a difficult area, but I think that your answers have been very useful. What I'd like to do is move on, I'm mindful of time as well. John, you've got a question, the next question. Yes indeed, thank you, convener. Good morning, panel. Much of what I was going to ask has been touched upon, and maybe if I can just expand that a little bit. I did plan to have a question about a national development plan for crofting. The Scottish Government's programme for government in 2016 commits to begin work on a national development crofting plan this year. Now, we've heard from Joseph that the development function was taken away in 2010, and Collins confirmed that there is no development function on-going at the moment. Significantly, David talked about the development role as integral to the promotion of crofting. My question is about where the conflict of the Scottish Government's proposal would be drawing together a development plan and the existing arrangements. Maybe broadening out a bit, given some of the discussion that we've had already, what is crofting? What's its purpose? I think that that's fundamental. Fundamental. Proper retention has been alluded to by Collins. We are clearly housing an issue. Local food production would be an important role, too. Collins talked about the infrastructure. Can you give some views around the development plan and the Scottish Government's proposals and how that would deal with existing legislation? Tell us what you think crofting is, please. Joseph, would you like to lead on that? I've always seen the crofting from the population side of things, and maintaining and, hopefully, improving population. I'm aware of at least one study that a comparison was made with an area in Sutherland that had been subject to crofting tenure, and a rural area very similar to it out with it. The result showed that being under crofting tenure had slowed down the de-population of that area. As early as when I was crofting grants manager, whatever scheme we were operating, I certainly always saw that at the end of mine because of the population of that area. As a previous convener of the Crofting Commission said to me, Hugh McLean, one of the staffs basically stopped the car and looked back and said, your job is to keep the lights on in the glim. I think that's right. What is crofting? I grapple with it as a man who has been heavily engaged in agriculture, crofting, farming and slipping down. I see less money in it. The profitability isn't there nowadays, the payments are on the land, there's less animals. If you don't mind my quoting, my little island used to 1,000 cows, 12,000 sheep. We have 250 cows today, less than 3,000 sheep. It used to be a dairy island making cheese, so over my lifetime I'm giving you the I wonder what the future holds for crofting. I don't see it as about keeping two cows in the croft and a couple of sheep because people now have to go out to work to earn a living. They don't want to come home at night and have to feed the cow and all those things. There's not enough money in it. I see crofting as a way of keeping rural communities around alive, to keep the local school open and to try and maintain rural communities. Crofting will play a part in that because some people want to keep the hen and the general bits and pieces, but I think that the key to what I see in my area in the west coast is what is keeping us alive is building tourism, creating for tourism, and that requires land. If we can't free up croft land to put on—there's a boy at home who's just now trying to put on two pods, he's wanting to do a couple of pods for tourism—a £45,000 investment, will I get the landy croft that he's saying to me? He's saying, well, you need to apply. I think that we need to have a more open approach to what we want crofting to deliver, what do the Government want crofting to deliver? It's not what I want it to deliver. I'm telling you what I think it's delivering. It's delivering people, it's delivering schools, it's keeping the doctor in the place, it's keeping the peer master on the islands, all those things. I think that crofting plays a significant role, but we need to have a clear steer from government on what they want it to deliver and then create the legislation to provide for that. If you don't mind my saying, there is a faction out there that do not want decrofting for house sites. There's a faction who think that it's okay. Where do you sit? My position is that the law provides for decrofting, reasonable purpose, section 20 includes housing, so it's reasonable purpose. Why is it frowned upon by some people? Parliament have enacted it. To try and summarise the situation, we need to get clear direction on what you want crofting to deliver, because I don't think that it's any longer about cows and sheep on the islands. There's a role for it, but it's not about keeping cows and sheep on the islands, it's about keeping people, community, schools, et cetera. We need to get legislation to provide for that, bearing in mind that this legislation started in 1886 to keep the cow, the sheep and to keep people on food. The legislation is for a different purpose, as I see it. I don't know if that assists you. If I may, just one comment. I would be very keen that the residents of the crofting counties say what they want, think that it should be, rather than perhaps wait for any report from this committee with the greatest respect to my colleagues or indeed the Scottish Government. I think that the impetus must come, you're right, it's part of an evolving situation. Can I ask them, David, since you said about the development integral to what changed when the function moved over to high, because we've heard basically they don't do it. So what is it they're not doing that would have changed how crofting would look in that six-year intervening period? I think that what it has meant is that there isn't an active crofting policy to bring new entrants into crofting and perhaps to develop schemes and subsidies that support and revitalise crofting, township reorganisations, those kind of very crofting specific things that deliver benefits not just for the crofting community, but for the wider community that lives within the crofting counties. I think that there has been no or very little focus on these because high's focus is very different. Back in 1886, that legislation was created to give crofters security of tenure fair rents and legislation that came in in 1919, the Land Settlement Act, it was about settling crofters on land who would otherwise have emigrated abroad. That was back in the 1880s through to the early 20th century, 2016 what is crofting about, it's not really about these things anymore. I think it is about the rural economy, it's about connectivity in the sense that not just the ferries moving back and forward, of having viable transport links, of having communities that are engaged with schools, etc. I also think that crofting is about an enduring relationship with the land. Many crofting families there, the tenancies will go right back to 1886 and before to the system of tenure that was essentially unregulated before then. I think that that enduring connection with the land is an important strand that goes all the way back to 1886 and I would see it as going forward into the future, but it has to be connected with the wider benefits that crofting can bring in the economic, environmental and social sense. Do you want to come back in and then I'll let Colin come in? No, I'm conscious of time, that's been very helpful but just to encourage you to keep telling us what your views and if those views are changing as issues arise, that would be very helpful. Colin, if you want to come in very briefly because there's a follow-on to that. A point that I've made on quite a number of occasions, we're looking for new crofting, we're looking to bring people into the Highlands and Islands, we have vast swaths and swaths of common grazing doing nothing. In the ownership of Scottish ministers and other people, it would be very easy to resume some of that land at very minimal cost and create new crofts to meet the demand required. You could go round the outskirts of, you know, just take a random selection of 20 of the main places, common grazens, any amount of shares not being used, resume 20 hectares, make 10, 1 hectare crofts, permit a development, planning, housing, it would not be difficult. The land is there, don't be chasing people out their crofts and annoying folk, just resume a chunk of common grazing that's doing nothing and it could be delivered. It wouldn't be difficult and a lot of folk have said to me, that's a great idea Colin, but you know, I'm putting it on the table here today, you're the committee for consideration. I'm sure we'll consider that, thank you very much indeed. John, thank you for that and Jamie may have answered your next question but I'd like you to ask it anyway please. Yeah, thank you. My question originally was going to be about encouraging young people into crofting, I think Colin covered that quite eloquently in the biggest barrier is funding and I think that's something perhaps you may want to touch on more quickly in terms of access to funding to purchase cross or just, I think I'll take a step back, I mean a lot of this has already been covered. One of the things that really strikes me over the last few weeks is this from somebody who knew nothing about crofting to be honest a couple of weeks ago, is that this isn't something we should look at in isolation and that this is really about a much bigger issue around what we do with our land in Scotland, how we protect rural communities and keep them together and I think one of the biggest learning points from me over the last few weeks is about how important that is and what part crofting can play in that but if it isn't about a couple of sheep or a couple of hens on the land and if the land isn't being used I wonder fundamentally what, how do you attract new people to crofting, how do you attract young people if it's not just to have somewhere to live in their local community, you know what I guess what I'm getting at is what what do we expect them to do with that land if it's not graze and provide for their families in the traditional sense. You know I see the importance of crofting in that respect but I don't necessarily understand what the appeal or attraction is to therefore bring new people in who have to lump some finance to get into the market. It sounds that you, what is the appeal? Do you want your looking around? Thank you. From my perspective the appeal is if you can get a croft you've got free land. I'm not going to be disrespectful to anyone but to me the key is if you've got nothing and you can get a croft you're going places. You certainly get a croft tenancy, the rent's 10 pound, 15 times the rent's 150 pound, you pay the solicitor, you buy it for 450 quid, you've got an asset, you maybe get planning permission on it and it's immediately worth 50,000 to sell. That is to me you know if somebody can tell me to the contrary I'll be willing to take it on board but in my area that's what they're wanting cross thought. It's people come in we can get a free bit of land and we can get access to buy it planning permission and if we're lucky enough we'll go to the commission and divide it and we'll get planning for a second house and we sell that site and we build our own house and we're in business. That's what I mean I don't know if there's a country views but that's what I see in our part of the world nobody comes into our island our place and comes in and puts on a herd of cows they're a flock of sheep that just doesn't happen. I think that that's the point is that I think there's maybe misconceptions to what people want cross for is it develop cottage industries is it to graze is it to to have hens that feed you know their families of an eve it doesn't sound like that's the case it sounds like it's a more fundamental modern need and that's to build a house to have somewhere to live to bring out your family in a community where there's a good school and a local you know community and I think you know in my area I'm in the west of Scotland which includes Aaron really you know croft in an isolation isn't isn't really what we should be looking at it's a fundamental problem about how do we keep young people on our island communities in a rural communities to stop them heading off to the big cities and providing them a bit of land where they can build a nice house to live in actually seems to be not a bad idea. Well it's a good idea that if you can view that if I could just make a comment my son is in university trying to return to my native island I've got a croft a bare land croft the problem we've got is trying to get planning from the local authority so an issue it needs to be looked into in the big picture is planning how the system's working or how the system's not working and if you've got a croft you know people don't have the money you know to fight the system to get planning and it is fundamental if you want to get people into the rural economy and you know the general conversation we're having the planning department of element if it has got to be looked at now whether it's permitted development rights or whatever you know I could preach about that as well because I'm up to hearing it I can't get planning I've got outline consent on this croft for my son to return home and the problems with the planners is just I think croftings bad crofting simple compared to the planning thank you Colin I don't think we're going to allow you to sort out the planning problems for your son here but I mean I think the point is we're trying to identify what's needed to be done for young crofts or and David understand David do you want to come in on that yes I mean crofts are used for a diversity of purposes but there are still a substantial number of crofts that are used primarily for agricultural purposes I know many very fine crofters who have got brilliant herds of cattle sheep he used the common grazings to their full extent there are some common grazings that are run as sheep stock clubs that are also very effective businesses which deliver a dividend for the members of the sheep stock club and have a substantial size of flock so I think we have to remember that that crofting was born with within the context of agricultural tendencies and that that remains still an important part in some areas more than in others but an important part of what what crofting is about and will continue to be about because where crofters are engaged in agricultural activities they will be able depending what happens with with EU subsidies etc they'll be able to continue to claim subsidies which will sustain them for for future years to come. I want to stop this particular issue just there because I'm mindful we've got quite a few questions to get through all of which are important and the next one's going to come from Peter and it's a fairly straightforward question and I wonder if you could you could start your answer by a yes or a no and and one sentence afterwards if that's possible so Peter. Thank you and I'll be brief in my questioning as well. There's a group of landholders under the small landholders act that have similar sort of rules and are occupied by similar areas as crofts. Is there merit in bringing the legislative system of small landholders and crofters together and could this be part of a simplification of crofting law? I don't really know enough about the small landholders act and on what basis they're held to comment. Straight, thank you as a simpliser. David. Lawyers never say yes or no. Lord of politicians. Although it's that there are small landholdings throughout Scotland including quite a number in Highland Prathshire which is where I come from that act like crofts but they're not regulated. I would say there's merit in looking at that idea. Thank you convener. Obviously we're looking at this because legislation is up and coming and we're looking at what kind of legislation we should be bringing or the Scottish Government should be bringing forward. Should they be looking at consolidation of the crofting acts? Should they be looking at a brand new crofting act? Or should they be looking at the Sump report and putting right what the Sump has identified as being wrong with crofting acts plus or minus any aspects of that? So big question and I'm happy to give time but as brief as possible would be appreciated. Well from my own part I was part of the 2013 crofting bill team and that was a very narrow act. It looked at one particular problem and that was the inability of owner-occupied crofters to decroft because of a specific flaw in the legislation and because it was very limited when the consultation period was very short and it was made quite clear by the minister Paul Wheelhouse then that we wouldn't look at any other issues but these other issues came in and what the minister did say at the time was those other issues wouldn't be forgotten about but they couldn't hold up this bill because people were waiting for the croftings or they were holding pieces of paper which legally the validity of it was questionable, the piece of paper being our particular crofting direction, so the focus was on that. But at that time my understanding was that it would be revisited again and it grew from then to be revisited through the crofting sump and basically the crofting commission prepared an extensive contribution to that crofting sump which was administered by Derek Flynn and Keith Graham and I think that to identify the principal areas in the legislation that needed to be revisited I still think that's a good strategy myself. Colin, do you want to? Yes, thank you convener. My position is that crofting law was set up in 1886, the principles are sound of what was to give security tenure etc etc. We're living a different day and age, I think we need to get a new act, the basic principles still there to give security to people etc, the basic principles but you know to quote our vice convener IG McDonald, it's like a shed that's had 10 layers of felt put in the roof, we need to take off a lot of the layers of felt and get back to the basic principles, you know the basic six, eight, ten principles that's in the act look at the day and age we're living in and decide what's required to make it work for the 21st century. It's simplified, you know, a tenth the size of the book we've got and that's my view, thank you. David. From a lawyer's perspective I would say that to work within the existing legislation to simplify it to address the problems that have been identified and to filter in whatever policy directions the government wants for the future of crofting, that would be a much more effective solution than the so-called clean slate approach. My concern about that is that it would simply replace one system with another system that would have its own complexities, anomalies, it would be difficult to see how it would relate to what had gone on on previously and people's rights under a previous system, so I think in many ways that the cleanest and in some ways the most radical solution is actually to work from within to simplify and amend it. A huge amount of work has gone on, intellectual work and practical work has gone on to identify through the crofting law sump that Joseph referred to to identify some of the main practical problems with the legislation and I think that this would be about using what is there and simplifying it. I think that would require repeal of large part of what is currently in the existing 2010 act but it wouldn't be about replacing it with another piece of legislation. Jamie-Claire has a quick follow-on to that. I will let Joseph finish first, but there is clarity for us that are we looking at or should we be best considering a completely new act that is a clean slate that is a fit for purpose for the modern day act, which takes into account the initial considerations of what crofting is all about and what does it mean today or do we work with what we have as Mr Finlay suggests trying to simplify the existing legislation or perhaps there is a third suggesting coming out. I guess what I am trying to get at is that we have heard different views over the last few weeks from different people and I think it would be very helpful to get a summary of what your view on that is. In terms of the policy for legislation. As I was saying earlier, I managed crofting regulation on a day-to-day basis. Largely, it works. It was brought in to bring in a series of protections and those have stood the test of time, so I would certainly be for it. The other important thing about the sum, to remember, is as well as identifying the issues, also sought to establish a consensus and I would not dismiss that at all, to get the various parties who participated in that, who went forward with the agreed priorities identified. I think that was an important achievement. Just very quickly, we have been told that this legislation will come at the end of the Parliament given that the 2010 legislation was at the end of a Parliament. Is that the right timing? Should we allow more time or is the end of the Parliament suits? Is there more conversation to be had? Me personally, I think that the first fundamental that has got to be established is what the new act is going to deliver. When it is brought in is secondary to what it is going to deliver to my mind. I hear what we are saying about the sump, but the sump is addressing issues stemming back to 1886. It may be if there is a consensus of what the act is intended to deliver. It may shift the dynamic of what is to be delivered and it would be ideal to have it next year, but if it was going to take beyond the end of the Parliament to get something fit for the modern day and age, I have an open mind on that point. David, do you want to add something? Yes, I think that if there is clarity from a policy point of view, then that is going to be really important in shaping the legislation clearly. If there is a lack of clarity as to what crofting is the new act is going to be about, then I think that there is potential for some of the mistakes that happened in 2007 and 2010, and that would be unfortunate, particularly with the amount of work that has gone on with the sump and the commission's contribution to that, to identify the specific problems that there are and to relate those to the bigger issues that the Government will be considering in due course. Peter, quickly, and then a more question. Very quickly. I absolutely like what Colin Kennedy just said. We need to get back to basics. I would love to see the act to be a tenth of the size it is, as you rightly said, but there seems to be a wee bit of a difference of opinion. My gut feeling tells me this thing has to be far, far simpler, far more easily understood and far, far smaller. How big a job do you think that would actually be to start from basics, clean slate, get right back to basics and produce a set of rules that are a tenth of the size that are now and move forward on that basis? Is that a huge job or is that something that is doable in a reasonable timescale? Very brief answers, if I may encourage you. The temptation will be to give a long one. Establish what you want to deliver and then make the legislation. It is what you want to deliver that is crucial to how you set out the act. Joseph, do you want to… I think a system of protections is by its very nature going to be complex. David? I think that simplifying is the most difficult process of all. It's much easier to tinker with legislation. I think that simplification is incredibly difficult but it is achievable. Stuart wants to ask a very quick question and then we've got one more if I may. It's an observation. We did reduce planning guidance when I was planning a minister to a tenth of its previous size without losing any of the policy content, so it is possible. Thank you for that observation. The final question will be from Richard. Can I honestly thank you for your evidence? It's been impressive this morning, especially Mr Kennedy. I wish you well on your planning. If you come to local areas in my area, planning is a problem in our area, too. The last question is, you have given examples of where the cross-crofting commission has been unable to effectively carry out its functions due to the lack of resources. I believe that we now need a new renaissance, a new era for crofting, as Mr Kennedy said earlier, high on the islands possibly to come in and provide those loans that you are talking about. What else can the cross-crofting commission need? Now we're facing hard budgets and hard times in some way. Do you need more money? They'll always say they need more money. I think that if the objectives of the act of government are clear, I think that I would assist the commission greatly and it could then budget appropriately as to what it can deliver year on year. I think that the legislation needs to drill right down to the level of what the commission is going to be able to achieve in its regulatory role and how that relates to the wider benefits, the renaissance, as you said, in crofting. I think that the most important point at the moment is that there are some key changes required in the legislation so that the resources can be most effectively deployed. A lot of that is to do with enforcement, a lot of that is to do with new crops, a lot of that is to do with crofters. Colin, do you want to add? Yes, thank you, convener. My position is quite clear when I study this at the Crofting Act. I don't see it that complicated in principle and we work on a daily basis and we don't have major issues but where I see vast resources filtering away is where we have customers who don't like the legislation, they ignore the legislation and they phone up the crofting commission and a member of the team has got to sit on the phone and talk to them and try and talk to them and they don't like it, maybe lose an hour, somebody else comes on the phone from the other side of the fence, we don't like it. If people recognise the legislation complied with it, it would be the commission's job so much simpler, regulation is so much simpler and our resources would go so much further. It's dealing with issues not within the legislation that I see as the key drain on the crofting commission. If a new actor, a new legislation would be along the lines of, I think you said there are five principles that a crofter stays on the land, they can turn over their boat, they can do their nets, they can go fishing, they can do this, that we bring, this renaissance batch and make it a new area for crofting, that would release all this time that you guys are spending on all this going into the nitty gritty. Yes but we wouldn't be turning over the boats and the nets in this day and age will be putting on the caravan, whatever the modern world brings for and I could make one comment common graisings in general principles give the commission a lot of problems and grief. Shetland has got a model where I believe that they have done planned schemes, I have not heard of a problem with a common grais in Shetland in five years, the model in Shetland I think is commendable and looking at the common grazing aspect of it is something that is fundamental to any new legislation functioning and for the crofting commission going forward. I mean quoting the Shetland scenario, do we hear problems from Shetland? I haven't heard a problem in five years at once. It's always nice to end on a positive note, it's convention that I give each of you the chance to say anything that you feel that you want to say, you have a very very short while to do it, is there anything anyone would like to say that haven't come up already in the conversation? David, you would like to say something? Other than that, I think that there is a bright future for crofting and I think that if the legislation is amended in a way that matches that then we can all look forward to crofting continuing into the end of the 21st century. Do you want to say anything, Joseph? I'm just going to talk. Okay, well can I thank you on behalf of the committee and I'd also like to thank you on keeping to the big picture which has been incredibly useful for the committee. I think we've all found the evidence that you gave today will help us in our deliberations, so thank you very much and on that note I'd like to formally conclude the meeting. Thank you.