CROFTING REFORM PROPOSALS FOR LEGISLATION
7 AREA-BASED POLICY AND DEVOLUTION OF DECISION-MAKING TO CROFTING COMMUNITIES
7.1 The Land Reform Policy Group recommended that there should be enabling legislation to allow responsibility for regulatory decisions to be devolved to local bodies that are ready to undertake the work and fully capable of doing it properly. The Group also proposed that the Commission should be able to adopt and follow different regulatory policies in different areas, depending on local circumstances and the level of interest locally in devolution of regulation.
7.2 There is broad agreement that greater community involvement in the process of crofting regulation is desirable where this is sought by the crofting community. But equally there is agreement that where there is no local body willing to undertake self- regulation the Commission would continue to exercise its functions as it does at present. This means that the functions should be delegated, not transferred; the Commission would still have ultimate responsibility for the regulatory process and would be expected to continue to exert overall control over regulatory policy setting and decision-making.
Weaknesses of present arrangements
7.3 The provisions of the Crofters (Scotland) Act 1993 set out how the Crofters Commission must perform its regulatory functions. The Act allows the Commission to delegate certain functions to individual Commissioners but not to community bodies capable of self-regulation.
Principles for reform
7.4 Reform should follow these guiding principles:
- The process of empowering crofting communities should enable the devolution of decision-making over regulatory matters within specified community areas.
- Legislation should set out prescribed criteria which local regulatory bodies must satisfy in order to qualify as suitable to undertake regulatory decision-making and policy formation.
- There should be the provision of an appeal process outwith the local regulatory body.
Proposals
7.5 This recommendation has been developed as follows:
- The area covered by the local regulatory body should be no smaller than an identified and regulated common grazings and associated crofts; and no larger than crofters in that area are prepared to accept.
- The Crofters Commission should have responsibility for delegation of crofting regulatory decision-making power, including determining whether a local body may proceed to take regulatory decisions.
- There should be a range of criteria which a local regulatory body should meet in order to have decision-making responsibility delegated to it.
- The legislation should provide for an appeal mechanism against decisions of the local regulatory body. This appeal should be available on the same basis as if the initial decision were taken by the Crofters Commission.
- At regular intervals, of not less than four years, the members of the local regulatory body should submit themselves for re-mandating by the local community. The newly mandated body should then seek continued delegation of powers from the Crofters Commission.
- The local regulatory body should be able to set its own policies on crofting decisions in line with the provisions of legislation.
- The terms of this legislation should enable the local regulatory body to take on additional functions such as wider crofting policy input to the community planning process.
7.6 It is suggested that the criteria that should apply in determining whether regulatory powers should be delegated to a local regulatory body should include the following:
- Evidence of knowledge of crofting policy, legislation and practice within the membership of the body.
- Evidence of knowledge of local economic, social, cultural and environmental implications of decisions on crofting matters within the membership of the body.
- The positive approval of the membership of the body by ballot of crofters in the area to be served by the body.
- A constitution that ensures there is an open and appropriate decision- making process.
- A means of accessing appropriate professional advice and support.
- A constitution that ensures that the majority of community body members are adult members of crofting households.
- A constitution that ensures appropriate representation for non-crofting members of the community.
7.7 These changes will empower crofting communities by enabling them to take greater direct responsibility for crofting regulation locally.
Area policies
7.8 The diversity of the Highlands and Islands is demonstrated in geography, population levels and numbers, differing sizes and productivity of crofts. Crofting law must apply equally to all crofts, no matter where situated or the uses to which the land may be put. However, this very diversity strongly suggests that crofting regulation should have regard to local needs and interests, and that it would therefore be appropriate that the Crofters Commission should be able to vary regulatory policy between different areas.
Weaknesses of present arrangements
7.9 Policies on crofting regulation have not been varied. Nor does current legislation envisage mechanisms that would enable the Crofters Commission to determine the need for, and secure crofters agreement to, policy differentiation between separate areas.
Principles for reform
7.10 Reform should follow these guiding principles:
- The Crofters Commission should be able to set different policies for different areas.
- These policies should be consistent with the requirements of crofting legislation.
- Local policies should be appropriate to the area in which they apply.
7.11 Following consultation with the Crofting Consultative Panel, these principles have been developed as follows:
- The area covered by differing policies should be no smaller than an identified and regulated common grazings and associated crofts.
- The Commission should be required to seek views on area-based policies from communities.
- The Commission should be able to seek those views through local forums established for the purpose and should be free to determine how these are set up.
- In setting differing policies, the Commission should be required to take account of crofting and non-crofting interests in the area concerned.