1 Response to the Environment and Rural

RESPONSE TO THE ENVIRONMENT AND RURAL DEVELOPMENT COMMITTEE STAGE 1 REPORT ON THE CROFTING REFORM ETC BILL

Introduction

1. Ministers acknowledge the Committee’s conclusions and welcome support for proposals within the Bill.

2. In response to concerns raised in the Committee’s report the Executive will:

• drop the sections of the Bill relating to the constitution, status and role of the Crofters Commission • drop the sub-sections of the Bill referring to market value of a croft • drop the proper occupier proposals • instigate a wide-ranging Inquiry into crofting issues including the market for crofts, and the status, role, functioning and powers of the Crofters Commission.

The Executive acknowledges that these proposals have not attracted consensus support either in the Committee or in the wider crofting communities.

3. The Executive welcomes the fact that the following key proposals in the Bill were supported by the Committee, and confirms that these proposals will go forward: • on Interposed leases which would enable crofting communities to purchase these leases as part of crofting community buy-outs. • permitting the Crofters Commission to challenge neglect of a croft in place of the landlord • allowing the extension of crofting tenure outwith the crofting counties, • enabling the creation of new crofts without a crofters right to buy that croft • ensuring that the Register of Crofts will be accurate and comprehensive.

These provisions did attract particularly strong support and will be welcomed in a number of communities. On Arran small-holders have shown strong interest in the proposal to allow the extension of crofting tenure. On Gigha and Colonsay the community development companies are seriously considering creating new crofts using the provisions proposed in the Bill.

4. This Response addresses the Committee’s conclusions and recommendations under the broad themes set out in the Stage 1 Report. It addresses the Report with changes to the Bill and clarification or explanations where these have been requested by the Committee.

Vision for the Crofting Reform Bill

The Committee acknowledged the widespread feeling that a vision for crofting has not been developed and then used as the foundation for the Bill. The Committee considered that it would have been preferable to engage crofting communities and other interests effectively around that before proceeding to legislate.

5. The Bill was developed as part of the Land Reform agenda to implement the Land Reform Policy Group’s objectives for crofting legislation. The vision for the Bill was

set out in the White Paper on the Crofting Reform Bill. The proposed Inquiry will be given a wide remit to examine crofting issues as well as look at the role and functioning of the Crofters Commission. The Inquiry will be expected to consult and engage proactively with crofting communities on their vision for crofting before reaching conclusions.

Reform of the Crofters Commission

(Paragraphs 170-266)

The role and performance of the Crofters Commission was discussed at length during the Stage 1 Inquiry and much criticism was directed at the Commission by witnesses.

6. The Commission was criticised for not using its powers. Some witnesses did not understand the constraints of crofting law and blamed the Commission for failing to use powers it did not have. However, it is clear from the Committee’s Report that there is no consensus on the Commission’s role. Whether or not the Commission has the right powers and enough powers needs to be considered further and the proposed Inquiry will be expected consider these issues.

7. Amendments will be brought forward at Stage 2 which will withdraw sections 1, 2, 2A, 2B, 4, 8 and 9 of Part 1 of the Bill. All these sections relate to the Crofters Commission constitution, status and how it functions and these issues will be considered through the Inquiry.

8. This means that for the moment the Commission will not be empowered to develop and operate different local policies. Power to impose charges for Commission decisions and to require crofters to supply maps at their own expense will be withdrawn. For the moment the Commission will be unable to create, develop or operate its own grant schemes.

The Committee were astonished that an adequate register had not been produced despite it being a statutory obligation on the Commission for over 50 years and it is essential that this failure is now rectified.

9. The Commission is reliant on tenants and owner-occupiers to notify it of changes in tenure and ownership, and such notifications are not always made. Therefore the Commission does not always receive up-to-date information about the owners and tenants of crofts. The 1993 Act provides no mechanism which enables the Commission to require that this information is provided. The technology to maintain a map based Register on an electronic format exists, but the statutory authority to do so does not. The measures in sections 5 and 7 of the Bill are critical to improving the Register since these sections create sanctions for failing to provide data that will ensure that the Register can become complete and up to date.

New Crofts

The Pressures on Crofting (Paragraphs 22-34)

The Committee acknowledged that market forces are having an unrestrained and damaging effect on crofting and considered that the Executive must continue to consider ways to dampen the market.

10. The introduction of the proper occupier proposals aimed to go some way to dampen market forces and ensure that croft owners and prospective croft owners understood that ownership of a croft carried obligations. We welcome the Committee’s acknowledgement that these proposals are worthwhile, while recognising their preference that a simpler approach could have been found through the legislation.

11. The Executive plans that the issues around market forces be considered by the Inquiry.

Creation of new crofts by a landowner (Paragraphs 50-76)

The Committee welcomed the ability to create new crofts. They considered that there were a number of concerns and practical details which need further consideration. These were: • Provision of more clarity on how communities should develop their ideas • The size of eligible holdings which could become crofts • The status of small landholdings • The effect of converting small landholdings into crofts would have on the tenanted agricultural sector • Interaction with the community right to • How new crofts were to be allocated • Lending to crofters.

12. The Executive agrees with the Committee that guidance should be given to communities and individuals that are contemplating seeking the designation of an area outwith the crofting counties as an area in which crofting tenure should operate. After the Bill is enacted secondary legislation will set out the procedures required to provide clear guidance. This guidance will consider the interaction with the community right buy.

13. The Crofters Commission keeps a record of people who have indicated that they wish to acquire a croft. The list indicates expressed demand and it is impossible to establish the real level of serious demand. Breaking down the data on an area basis does not reveal how demand could be met by creation of new crofts. Many people on the list are prepared to move to a new area to obtain a croft, and from past experience, any proposal to create new crofts generates demand from near and far. The Commission’s list is unlikely to drive the creation of new crofts. The main driver for creating crofts is likely to be initiatives by land-owners. Community and public sector land-owners are thought to be the most likely initiators of new crofts. However, in recent years private landlords of crofting estates have shown a willingness to re-organise croft land to create new crofts.

14. The proposal for turning smallholdings into crofts was developed on the basis that this opportunity should be available to tenants of smallholdings which were akin to crofts in terms of size and value. The 30 hectare size limit is based on the normal expectation as to the size of a croft. Small landholdings were originally created on the same basis as crofts and were of similar size. The proposed limit in the Bill will therefore exclude very few small landholdings. A new higher limit would create a new and even more arbitrary cut off.

15. It would only be possible to bring the status of smallholders into line with crofting or agricultural holdings legislation by alternative primary legislation – this is beyond the scope of the Crofting Reform Bill. The proposals in the Bill are designed to enable existing croft sized small landholdings to become crofts. It could prove difficult to justify the cost of preparing further specific legislation for small landholders given that it is currently possible for a landlord and a tenant to negotiate other arrangements. Small landholder tenure is unlike crofting tenure and is not a burden on the land which must carry forward to a new tenant.

16. There is no lower limit on the area of land which can be let as an agricultural holding and there is land which has been let as smallholdings under this form of tenure across Scotland. The difference between the respective rights to buy available to crofters and agricultural tenants is not anomalous as it merely reflects the differences between the forms of tenure.

17. We intend to monitor the situation regarding the effect that conversion of smallholdings into crofts may have on the overall tenanted agricultural sector and will continue to look to the existing industry led Tenant Farming Forum for advice and information about developments within the tenanted sector of Scottish agriculture.

18. The selection of tenants for new crofts should be a matter for the organisation or individual who creates these new crofts. Prescribed rules or criteria governing selection of tenants would be a disincentive to the creation of new crofts. In the past when new crofts have been created through re-organisation the Crofters Commission has invariably been asked to advise and assist with the identification and selection of tenants. This will continue to be possible in the future. After tenants for new crofts have been selected any subsequent transfers will be in line with arrangements agreed between the landlord and tenant, but the law in relation to Crofters Commission consent will apply to these transfers as they do to any other transfer.

19. Government has made concerted efforts over the past many years to tackle the issue of lending to crofters. However, it has become clear that lenders expect to be able to recover the capital sums lent for house construction in the event of default by the borrower. The way they choose to do this is to ensure that they can take possession of the property and sell it on the open market.

20. The Executive agrees with the Committee’s desire for consultation on the areas to which crofting tenure would be extended. The Executive is committed to consultation and will consult on an order to designate an area in which crofting tenure is to operate. Indeed on a matter such as this it is clearly in the interests of the Executive that it should consult before bringing forward proposals for subordinate legislation. A legislative requirement to consult creates unnecessary inflexibility and for this reason

it remains the Executive’s view that insertion in the Bill of a requirement to consult before making a draft order would be undesirable and unnecessary.

Reforming Regulation of Crofting

The Committee welcomed the desire to simplify crofting regulation and believed that the complexity of the Bill as presented makes it extremely difficult to see how simplification is achieved. An approach which would have presented a free-standing consolidated Bill would have been preferable. The Committee also raised concerns about how the Commission would use their powers to charge for regulatory functions. Other concerns were the definition of purposeful use; action on neglect; managing land for conservation purposes and the provision of support for active land management.

Simplification of crofting (Paragraphs 79-101)

21. The Executive notes the concern expressed by the Committee about the width of subsection 58A(13) (new Section 5). However, to have provided all the criteria applicable to deciding whether or not the Crofters Commission should intervene in a particular regulatory matter would have made an extensive list. Such an approach would also have limited the discretion of the Commission to consider the differing circumstances and priorities of different crofting areas.There is a question over whether it would be worthwhile creating an independent body and then fettering all its discretion. The proposals in the Bill set out the fundamental principles of what should trigger the Commission’s intervention.

22. Much of the slimmed down Bill is about how to get Crofters Commission approval or consent for transactions between crofters or between crofters and landlords. This new Section 5 sets out the approach to these decisions and this involves setting criteria which trigger intervention in transactions and the identification of the factors that the CC must consider. The other sections remaining in the slimmed down Bill and relating to transactions are based on the approach set out in Section 5. This means that removal of section 5 would be likely to be viewed as a wrecking amendment. .

23. The Executive welcomes the Committee’s particular support of certain aspects of the Bill – creation of new crofts, tackling neglect, extending crofting tenure, improved Register, etc. - and shares their view that these provisions should not be constrained by any lack of resources. The Committee will therefore be please to note that the approach to Crofters Commission regulation set out in section 5 should be capable of reducing the resources devoted by the Commission to administering regulation significantly, and that these resources could then be diverted to attend to the new provisions and priorities.

24. This should also address the Committee’s concerns regarding the terms of the Financial Memorandum. Committee members were concerned during the Inquiry that with all the new expectations in the Bill – challenging neglect, new crofts, improved Register etc. – the Commission would require additional resources to meet these expectations. As indicated above. new resources would not be required as the new approach to regulation (in new Section 5) would release resources which could be re- deployed within the Commission.

25. The Committee raised concerns about the proposals for new powers to enable the Commission to charge for regulatory services. These powers are part of the sections relating the Commission which will be withdrawn.

26. Concerns were raised about the adequacy of the definition of “purposeful use”. The approach adopted aims to ensure that crofters will be subject to a single set of rules which governs the minimum standards for care of the croft to maintain agricultural condition and comply with grant and subsidy obligations. It would be possible to provide a full definition of neglect in the primary legislation and the Executive did consider this when drafting the legislation, however decided in favour of using ‘purposeful use’ as the single definition of a situation whereby a croft is not being neglected.

27. The definition of purposeful use in section 11(2) of the Bill (new paragraph 13 of schedule 2) is deliberately drawn widely to allow crofters to undertake any business or commercial activity which they can legally undertake on the croft and which does not adversely affect the croft, the public interest, the interests of the landlord or the use of adjacent land.

28. Whether a croft is actively managed for conservation or simply neglected will in the first instance be capable of being tested by the Commission. Invariably a crofter will be able to demonstrate active management for conservation by their formal involvement in a management agreement, environmental scheme or Land Management Contract. Beyond these tried and tested mechanisms it would be for the Land Court to consider the circumstances of a particular case.

The Proper Occupier Concept (Paragraphs 101-159)

The Committee welcomed the Executive’s intention to ensure that croft owner occupiers were regulated in the same way as tenants. They had many concerns about the proposal including: • Croft assignations • The late submission and complexity of its approach • The criteria to be applied in considering applications to gain or retain proper occupier status • The use of the Commission’s power on neglect • The erosion of crofts due to decrofting house sites.

29. It has been suggested that the Crofters Commission could reject all proposed assignees until a crofter is left with no-one to whom he/she can assign the croft except the Commission’s own choice of assignee. This does not recognise that the Commission must act reasonably and may be subject to judicial review if it fails to do so. In addition, crofters have other options. These include assigning to a family member, exercising the right to buy and then selling the croft, or just remaining on the croft. The bulk of assignations are family assignations and the Crofters Commission has no role in these unless the landlord refuses consent. The Commission does, on a regular basis, reject proposed assignees when its consent is required. Crofters were given the right to choose to whom they assigned their croft in the 1960s. The intention behind this provision was to encourage older and retired crofters to give up their croft to someone who might use it more effectively. It recognised the strong

bond between families and their father, mother, grandfather’s croft and the probability that if a crofter could not influence to whom the croft was assigned he would be less likely to assign it at all. The logic of this remains valid today.

30. A points based system for allocating crofts would give a crofter no real say in determining to whom the croft is to be assigned. The Crofters Commission is already required to take account of set criteria when making a judgement on the suitability of an individual. In crofting legislation a croft is an individual’s asset first and a community’s resource second. It is not social housing owned by public or quasi- public landlords. Some of those who gave evidence to the committee believe that crofts ought to be treated as a community resource. Changing the law to achieve this would have significant implications including implications for the human rights of the current occupiers. This is an issue that would therefore require long and detailed consideration and further extensive consultation. It is likely that aside from being extremely bureaucratic an allocation system would be unworkable. Crofters would be liable to take the view that it is simpler to retain their croft and, rather than assign, ask a family member to manage the land. If the rent continued to be paid and the land was not neglected, then there would be no way to force the crofter to release the croft to someone who might have more energy or ambition to devote to the croft.

31. The provisions in the Bill and the existing provisions of the 1993 Act provide adequate means for dealing with absenteeism, neglect and misuse. The suggestion that someone who plans to make use of a croft is subject to a probationary period and so risks being removed from the croft because some part of the plan that they prepared in good faith could not be implemented seems unreasonable. This type of arrangement could stifle investment in the croft, as an individual may be unwilling to spend money on improving a croft whilst there was a risk that it might be taken away.

32. The Committee considered that a much simpler way to apply the same obligations to croft tenants and croft owner-occupiers would be to amend the definition of “crofter” to mean either, rather than its current definition as croft tenant. The existing definition of “crofter” is the foundation of the Crofters (Scotland) Act 1993 (the 1993 Act) and changing that definition would change the meaning of most of the provisions of that Act. It would require consideration to be given to the effect of the new meaning in almost every section of the 1993 Act and the introduction of appropriate amendments to these sections. The current definition in the 1993 Act involves a crofter/landlord relationship. Any other meaning introduced into the term “crofter” would not have this relationship. Also any references to the use of the term “landlord” would require to be amended. This would involve a great number of amendments and take up a lot of Parliamentary time. It would also have potentially unpredictable impacts on extant case law which would need to be explored.

33. In addition, in order to deal with the real differences between the legal status of owner-occupiers and tenants (which go beyond crofting law), the new provisions would apply statutory requirements on owner-occupiers which would be more complex than the existing “proper occupier” provisions. For example, using the term “crofter” to cover all categories of crofter at all times would require that: some parts of the legislation be amended to say “In this (section or subsection) the term “crofter” only applies to croft tenants”; in other parts of the legislation it would be necessary to say “In this (section or subsection) the term “crofter” only applies to former croft

tenants who have purchased their croft and the successors in title to such former tenants”. This would make the crofting legislation more complicated and confusing, and lead to greater misunderstanding.

34. The Executive recognises that proposals for Proper Occupier did not attract wide support from witnesses during the Stage 1. Inquiry. Alternative approaches require further consideration and therefore the proposed amendments to bring forward the Proper Occupier concept at Stage 2 will be dropped. Issues around market forces will be considered by the Inquiry which Ministers will set up.

35. The Committee asked the Executive to consider whether provision of housing through short-assured tenancies could be permitted on both tenanted and owner-occupied croft land. This provision in the Bill could be extended to allow surplus houses or other buildings on a croft to be let as social housing through use of short assured tenancies. However, it is unlikely that permitting croft owner-occupiers to let a croft house would help to avoid absenteeism and neglect of croft land. It might simply ensure that a single croft, now without a vacant croft house, could only ever be worked in conjunction with other crofts rather than on its own.

36. In relation to derelict houses on tenanted crofts it is not clear that legislation would achieve anything that could not be done at present. Discussions should continue around ways in which to improve the will to take action and the resources to finance renovation.

37. The Committee asked for clarification on the number of absentee owners. There are 315 absent owners, of these 174 are absent from their crofts and the remainder, 141, are absent grazings shareholders.

Other regulatory issues

(Paragraphs 160-169)

The Committee asked that the Executive consider whether the possibility of avoiding a claw back of value by selling a croft to a nominee has implications for community landlords, and whether this should be addressed. They raised queries about decrofting of house and garden sites also whether a suitable threshold should be set for the division of crofts.

38. The fact that crofters can avoid claw back of development value by selling to a nominee prevents the landlord from sharing in a windfall generated by a planning consent. The price paid by a community landlord in acquiring croft land will have reflected the fact that the land is in crofting tenure and that this loophole exists. So there are no implications for a community landlord as a consequence of this loophole.

39. The Executive did consider action but concluded that dealing with the alleged loophole and extending the claw back period would only force a crofter who wished to profit from development to share the development value with the former landlord. Removing and restricting the clawback might be to the advantage of community landlord’s would be disadvantageous to many crofters.

40. The successive removal of house sites from crofts has been possible since the 1960s. Whilst it may appear perverse and contradictory to permit this to happen, one of the factors which encouraged this policy approach was a desire and attempts to encourage older crofters to retire and release their crofts to other new crofters in the late 1950s and 1960s. It was recognised that many crofters would only retire if they could guarantee to continue to live in their long-standing home. It seems to have been accepted that if a croft house was removed from a croft released, then in many instances a new crofter would have to build a new house to enable them to comply with their obligations to live on or near to the croft and work it. The Croft House Grant Scheme has facilitated these types of croft transfers and the creation of new croft houses for many years. The loss of agricultural land in this way has been negligible and the positive impact of new housing, extra population and active crofters has been considerable.

41. If crofts are to be passed on between generations then crofting families need to secure homes for different generations. One of the best ways to do this is to divide crofts so family members can build homes on their own croft. The vast majority of croft divisions are for this purpose. A croft of less than 5 hectares has limited value as an agricultural unit and division of such a small croft would have little agricultural significance. The loss of some marginal agricultural land is not economically significant and contrasts poorly with the gain from creating an additional household in a remote rural community. The Commission should exercise discretion to suit the circumstances of each case – and a strict lower limit on the size of a croft that can be divided would interfere with that discretion.

Development Schemes and other development on croft land

(Paragraphs 255-266)

The Committee considered that, where a crofting community exists, payment must attach to the croft rather than the crofter. The Committee considered that to do otherwise would run counter to the objectives of the Bill to encourage the development and viability of crofting communities. The Committee asked that the Executive considers the Land Court’s concern about its new jurisdiction in respect of section 34. It suggested that the criteria to be applied – such as whether development schemes are for a reasonable purpose and if they were ‘fair’ - are matters of policy rather than matters of law for judicial decision.

42. Ministers have considered the issue of payment for resumption being attached to the croft rather than the crofter. However, there is a significant difficulty with this proposition because attaching the payment to the croft would inflate the value of the croft and could mean that very few would be able to afford to buy such a croft. In addition any measure which would prevent the person who is in occupation at the time of resumption from benefiting from the payment either through a continuing entitlement to the payment or in the price paid for assignation of the croft could be subject to challenge under the European Convention on Human Rights.

43. The Executive does not agree that determining whether the criteria applied to development schemes, as outlined in section 34, have been met are matters of policy which should be decided by Ministers. The Land Court has a long history of deciding what constitutes a reasonable purpose under crofting law and its judgements have

been and continue to be respected by crofters. The question of what is fair and what is fair recompense is defined in the Bill and is a matter that is best dealt with in a Court where each side can make their case. Disputes between private interests as to whether or not a proposal is fair to an individual or offers that individual fair compensation are usually matters determined by a court. Furthermore there could be European Convention Human Rights implications if such matters were to be determined by ministers without recourse to a court. The term reasonable purpose has established meaning for the Land Court and should present no new challenge.

Land Reform (Scotland) Act 2003 – Interposed leases

Interposed Leases and Right to buy leases (Paragraphs 275-295)

The Committee welcomed the intention of providing a clear legal framework for dealing with the issue of interposed leases. The Committee asked that the Executive addresses the various potential complications and unintended consequences highlighted in evidence to the Committee. The Committee also asked for a timescale for a review of the land Reform (Scotland) Act 2003.

44. Ministers are aware of the consequences of the proposal to deal with interposed leases. It may be possible to try and draw distinctions between different leases and their purpose, however this is unlikely to be a practical proposition. If exemptions are created then there are liable to be new loopholes. The approach in the Bill therefore depends on the same considerations that relate to other aspects of the crofting community right to buy, namely that the community must have acquired or be simultaneously seeking to acquire the land and an application will be approved only if it will further sustainable development and is in the public interest.

45. The Executive has indicated that it intends to undertake a formal review of the operation of the Land Reform (Scotland) Act 2003 in the next Parliament.

46. If wider changes to the Land Reform (Scotland) Act 2003 were to be proposed then the Crofting Bill is unlikely to be a suitable vehicle for making these changes. It has been possible to include the changes relating to interposed leases in the Crofting Reform etc. Bill because these changes relate to the crofting community right to buy.

Financial Memorandum

The Committee was concerned that the Financial Memorandum lacked accurate costings of the implications of proposed regulatory reforms, the creation of new crofts and reform of the Commission status. The Committee does not consider that the Memorandum provides sufficient information.”

47. The Committee’s concern that there is insufficient information in the Financial Memorandum is noted. However, it is important to record that the Executive does not anticipate any significant increase or decrease in the budgets made available for the Crofters Commission as a result of the Bill as proposed.

Policy Memorandum (Paragraphs 305-334)

The Committee recommended that the Executive commits to publishing and disseminating a version of the revised legislation and, at a future date, publish a revised guide to crofting legislation for crofters, landowners and other interested parties. The Committee also asked that the Executive considers and responds to the CRE’s comments.

48. The Committee suggested that a revised guide to crofting law should be published by the Executive. Crofting law is highly complex and definitive guidance has been published in the past by legal experts aimed at solicitors. It is likely that definitive guidance will be updated or similar publications will be produced in future. The Crofters Commission has also previously produced explanatory guidance on crofting law for a wide audience. The Commission will be encouraged to update this guidance.

49. The Committee has raised concerns over comments made by the Commission for Racial Equality on the Bill and whether Ministers have carried out a racial equality impact assessment. Ministers have continuously considered the racial equality implications of the Bill as it has progressed from concept to Bill. Ministers are confident that they have met all their obligations to racial equality in the Bill. Ministers’ commitment to racial equality is illustrated in Page 82 of the Land Reform Policy Group paper “Identifying the Solutions” published for consultation in 1998 which proposed removal of discrimination in favour of families of crofters and long- standing members of the local community. Since then the Crofters Commission has operated on the basis that there should be no such discrimination although there are some people in crofting areas who do advocate a return to such discriminatory policies. Internal Scottish Executive guidance on conducting a Racial Equality Impact Assessment has been produced recently and Ministers have instructed that such an assessment be carried out as soon as possible.

50. It is accepted that much more could have been said by the Executive about sustainable development in connection with crofting. However, the intention was to deal with the impacts of the Bill rather than the impacts of crofting or the impacts of alternative views of what crofting is and how it might develop in the future.

Subordinate Legislation Committee

51. Section 1A, 4, and 8 will be withdrawn from the Bill.

52. The Committee’s concerns over section 58A are addressed at paragraphs 21-24 above.

53. The Committee’s concerns over consultation in relation to new crofts are addressed at paragraph 18 above.

54. Concerns over new section 5B(10) & (11) are addressed at paragraphs 26-28 above.

55. The Executive will modify new 46A in the manner suggested.

56. An amendment at Stage 2 to address the Committee’s views on section 45 is under consideration.

Land Court and Rights of Appeal

The Scottish Land Court (Paragraphs 267-274)

The Committee had some sympathy with the Land Court's concerns about the limitations on appeals, and considers that allowing a re-hearing of any case by the Court will undermine the Commission's role and not improve confidence in it as a credible regulator. It was not clear whether there will be any method of sifting appeals, or whether this provision opens up the potential for a huge increase in the Court’s workload.

57. Discussions have been in progress with the Land Court for some time over the re- hearing of cases in order to resolve the issues relating to appeals on matters of fact. A solution seems to have emerged which is derived from legislation relating to licensing appeals. Appropriate amendments will be brought forward at Stage 2 to limit the circumstances on which appeals can be made on matters other than points of law. This will greatly reduce the possibility of the Court having to re-hear a case.

58. Crofting law and agricultural holdings law differ in many respects. The areas where differences between the two regimes arise relate to the relationship between landlord and tenant. The Sheriff Court remedies which Sir Crispin Agnew cites are not known to have been used in a crofting context. Unlike a tenant farmer, a crofter has a better and cheaper remedy for dealing with a difficult landlord through his ability to exercise his right to buy his croft.

59. The Bill will be amended at Stage 2 to limit the scope for appeals on points of fact in a manner consistent with legislation relating to licensing appeals. It is not possible to exclude appeals on points of fact entirely and still comply with ECHR obligations.

Minister for Environment and Rural Development Deputy Minister for Environment and Rural Development 21 September 2006