Seòmar agus comataidhean

I am very happy to support Alasdair Allan’s amendments 1 and 24. Enforcing compliance with statutory duties is one of the commission’s most important functions, and it is right that that is stated explicitly in the legislation. It is also much more appropriate and practical for enforcement to be done by means of a civil fine rather than by approaching breaches as criminal offences.

However, I cannot support Rhoda Grant’s amendment 166. Andrew Thin, the chair of the Crofting Commission, in his evidence to the committee, explained that the commission was modernising its policy plan, which will be significantly more detailed and make it crystal clear what being “ordinarily resident” means and what evidence for that will look like. That will allow the commission to undertake evidence-based residency checks, and I ask that we trust the regulators to regulate at this moment in time.

I am also unable to support Ariane Burgess’s amendments 133, 135 and 136, or Rhoda Grant’s amendment 173. If we extend the list of those who can report breaches and require that those must be investigated, that has the potential to create a lot of additional work for the commission, because it would be obliged to investigate every report that it received, regardless of the strength of the evidence that was provided. One of the things that we are trying to do is get the commission to actually investigate breaches.

09:15

In the view of the Government and the commission, the significant expansions already in the bill strike the right balance. We do not want to diminish the overall regulatory effectiveness of the commission by drawing the scope too widely and giving people who may have no connection to the township such a right. We should also bear in mind the existing roles of Government officials and community councillors, who have their own key roles to play in these communities. That goes back to Rhoda Grant’s earlier point that rural payments and inspections division officers also live in these communities.

We know from the commission’s evidence session that it can and does consider some breaches of duty that are reported by people outwith those mentioned in legislation. However, that decision is based on the strength of the evidence that is provided; no one person or organisation is prevented from reporting a suspected breach of duty, but there has to be evidence behind it.

For similar reasons, I cannot support Ariane Burgess’s amendment 134, which would expand the geographical extent of those with the right to report a suspected breach and thereby require the commission to investigate. Several parishes in the Highlands and Islands extend over a considerable area. Again, I point out that there is nothing to prevent anyone from the wider parish reporting a suspected breach of duty, and whether the commission chooses to investigate that report will be based on the strength of the evidence. That would be a far more efficient use of the commission’s resources. I urge the committee to reject amendments 166, 133, 135, 136, 173 and 134.

I also urge the committee to reject amendment 174. A system of anonymous reporting would be problematic, for several reasons. For one thing, anonymity can be hard to maintain in practice. If anonymity were maintained, that could potentially have a devastating effect on the community. If a person is complained about, they may then harbour suspicion about all their neighbours or may wrongly assume a certain neighbour has made a complaint. Thirdly, as the amendment accepts, a request for anonymity can sometimes be overturned by some other rule of law.

With regard to amendment 175, the commission is already entitled to consider whether a report of a suspected breach is frivolous or vexatious. Considering each case on its merits, which could already include whether it comes from someone whose reports have been considered frivolous or vexatious in the past, will continue to be required. As a result, I do not support amendment 175.

I turn now to eight amendments in my name: amendment 11 and amendments 14 to 20. Section 4 of the bill replaces provision in sections 26C and 26D of the Crofters (Scotland) Act 1993 to streamline the process for the giving of notices and undertakings relating to the enforcement of duties. These amendments further simplify the procedure to be followed by the commission in instances where a crofter or owner-occupier crofter is issued with a notice suspecting them to be in breach, and the period set out in that notice expires when no undertaking has been given. Instead of having separate sections setting out the procedure in which representations are made or not made on time and the consequences that flow from that, amendment 11 will omit proposed new section 26DB, with some aspects being imported into new section 26D. That will provide a clear steer to the commission about what it may do in relation to a person who engages with the enforcement process and in relation to those who do not engage properly or at all.

In deciding whether the duty is being complied with, the commission may treat a nil return by the person as an acceptance that they are not complying with their duties. The commission will still have to consider any representations that are made on time, and it may take account of any late representations.

When the commission decides that the duty is not being complied with, the amendments provide that its obligation to give the person a further opportunity to give an undertaking before it takes enforcement action will apply only in cases in which the person has engaged with the process properly—that is, in cases in which the commission received representations from them on time. In all other cases, the commission can exercise discretion in deciding whether or not to offer such a further opportunity. New section 26DA sets out the procedure to be followed if an undertaking is given, whether in response to an initial or further notice.

Amendment 13 provides that, when the commission has a suspected breach of duty notice and then chooses to decline to do anything with a regulatory application that the person has an interest in, the commission must notify the applicant of its decision. Amendment 21 will apply the standard timescales and grounds of appeal to any appeals against a decision of the commission to decline to do anything with an application.

I move on to amendment 22. Section 5 will insert new section 29BA into the 1993 act, which will give the commission powers to vary or revoke consent for a sublet or short lease when it considers that the subtenant or short leaseholder is not fulfilling the crofting duties or is otherwise breaching a condition of let. Amendment 22 provides that, when the commission makes an order under that new section, its decision will be appealable to the Land Court.

I ask the committee to support Ariane Burgess’s amendment 137, which will enable the commission to treat a breach of grazing regulations in the same manner as it treats a suspected breach of duty when considering whether to process a regulatory application or decline to do anything. Oversight of common grazings is an important regulatory function of the commission, and there is the same need for sanctions as we have recognised in regard to enforcement of crofting duties.

I cannot support Rhoda Grant’s amendment 189, which would remove the right for a crofter or owner-occupier to apply to the commission for consent to be absent from their croft. The consequence of the amendment would be that the crofter, who might have to leave their croft for work or health reasons, for example, would not be able to advise the commission in advance. They would leave and have to wait and see whether someone decided to report them, and if they were then reported, they would not be at home to respond to the commission’s suspected breach of duty letter. All of that would cause unnecessary stress and uncertainty. It is far better to have a system that encourages people to be up front about their current position and not to wait and see whether they are caught or informed on by a neighbour. I urge the committee to reject amendment 189.

I also cannot support Rhoda Grant’s amendment 190. One of the aims of the bill is to simplify the legislation and make crofting regulation less onerous for crofters and the commission. The amendment would bring yet more regulation into the system and would have a resource impact on the commission.

If she allows me to finish this point, I will let her in. I apologise—I was not seeing the screen, so thank you for letting me know.

I agree that we need to raise awareness of the crofting duties. That is why I welcome the action that the Crofting Commission is taking to issue guidance to solicitors and agents on croft sales. The guidance is designed to ensure that those who are acting for the sale of a croft or croft tenancy are fully aware of the legal duties and obligations that come with owning a croft.

I am happy to take Rhoda Grant’s intervention.

I am more than happy to have a discussion. I should say that, throughout the amendments, there are a lot of things that we agree with in principle but in relation to which the bill is not the place to make the suggested changes. I am more than happy to have a discussion on many of the things that we will cover as we go through. The fact that I am saying that we cannot support an amendment at this point does not necessarily mean that further discussion cannot be had. I am more than happy to have that discussion.

I was dealing with amendment 190 and talking about the work that the Crofting Commission is doing. The advice that it gives to estate agents outlines the key responsibilities of a crofter, including the legal duties that the crofter needs to be ordinarily resident or near the croft to make purposeful use of it. The advice also highlights the offence of failing to return the annual notice, which requires crofters to confirm that they are complying with their duties. I have been encouraged by the work that the commission has done on that, and, on that basis, I urge the committee not to support the amendment.

I ask the committee to support Tim Eagle’s amendment 155, as it will bring clarity to the material in section 40A of the 1993 act and remove any potential for confusion.

I am happy to make that commitment.

I am confident that Beatrice Wishart’s proposals cover the issues raised in the earlier parts of the debate. I am not quite sure why the member—or you—[Interruption.] I am not quite sure how to address members in committee.

I am not quite sure why the member considers it necessary not to support Beatrice Wishart’s amendments at this stage.

I would be content to meet and have those discussions.

I have nothing further to add, thank you.

Amendment 42 agreed to.

Amendment 43 moved—[Jim Fairlie]—and agreed to.

Section 12, as amended, agreed to.

I ask the member to allow me to finish. What I was going to say is that we are currently looking to revise CAGS. Part of that will involve looking at what projects will be supported, and discussions are already under way with stakeholders.

I will now take the member’s intervention, but I hope that she will bear that information in mind.

Amendments 65 to 69 and 73 are designed to introduce a more comprehensive and flexible system for achieving our policy aims on grazings shares and their connection to crofts.

My officials have reviewed the provisions in the bill with the help of a group of stakeholders with legal expertise. They have concluded that the provision currently in section 15(2) of the bill is inflexible and might have adverse consequences. Amendment 67 will therefore remove that section from the bill and amendments 65, 68, 69 and 73, supported by amendment 66, will introduce a new set of provisions.

New subsection (2), which will be inserted by amendment 65, provides that, if a crofter purchases the entire croft, including the grazing right, that right counts as part of the croft for the full range of purposes of crofting regulation. It therefore cannot be separated from the inby land unless a division application is approved by the Crofting Commission.

Amendment 69 reinforces and supplements amendment 65. It explicitly provides that any grazing right that is held by an owner-occupier crofter, whether as a purchased heritable right or as a deemed croft held in tenancy, is part of the croft for the purposes of section 19D of the 1993 act. That means that the right cannot be separated from the rest of the croft except by a division application that is approved by the commission.

Amendment 68 considers what happens if an owner-occupier crofter who also holds a deemed croft sells his inby land without having secured approval to separate. It provides that, in that circumstance, an assignation of the deemed croft automatically takes place. That will apply to all deemed crofts that are held by that owner-occupier crofter in the relevant common grazings, including any deemed croft that existed before the passage of the bill.

Amendment 73 will require the crofting register to record links between crofts and deemed crofts that are held by the same person. The registration schedule for the croft will have to include a reference to the deemed croft and vice versa. That provision will be forward looking so will not apply to shares that had become deemed crofts before the commencement of the section until those are next transferred. However, even when the links are not recorded in the crofting register, the constraints on separation and other provisions set out in amendments 65, 69 and 68 will still apply.

Other important changes are made by amendment 65. First, it creates a new situation in which the right to buy applies to an apportionment—which is when someone who is not a crofter holds a separated share that has been permanently apportioned to them. In that situation, it makes sense for them to be able to buy the land, which would then become a new owner-occupied croft.

Secondly, it provides that, if an owner-occupier crofter lets a croft to a new tenant crofter, any grazings share goes, too, and becomes a pertinent of the new tenancy.

Thirdly, it confirms that a grazings committee and the Crofting Commission have the same management and oversight roles for all grazings shares, no matter who holds them or in what form.

I agree with the intent of Rhoda Grant’s amendments 193, 194 and 195, as those appear to be designed to do largely the same things as the set of amendments that I have just described. However, they will not be needed if the full package of my amendments is approved. Moreover, my amendments do not require further regulations to be made to achieve the desired effect. I therefore ask Rhoda Grant not to pursue those amendments.

Amendments 70, 71, 72 and 75 make small improvements to the bill for readability and clarity, and I hope that members will support them.

I cannot support Ariane Burgess’s amendment 141. I appreciate the importance of dispute resolution for common grazings, but a regulation-making power for what is a very specific aspect of commission activity is not necessary or appropriate. The commission already has a broad range of general functions and duties that can extend to such intervention, and it has the right to devote resources to mediating in disputes. Indeed, if necessary, the Scottish Government already has the power to direct how it fulfils its functions. It is not clear what the proposed new power would add, other than further legislation and process.

11:30

I also cannot support Edward Mountain’s amendment 199. Each party will be considering its approach to further crofting reform ahead of the upcoming elections. I do not think that it is helpful at this stage to single out one aspect of that, however important it is, to be prioritised for the review as a matter of law.

As Ariane Burgess will, no doubt, explain, her amendment 163 will correct an important deficiency in the legislation regarding the review of part of an apportionment. I encourage members to support amendment 163.

I move amendment 65.