The Summary by the Rural Affairs, Climate Change and Environment Committee on their Stage 1 Report formed the last post on this blog. I will now give my views on that Report.
The Committee get 10 points out of 10 from me for acknowledging “the considerable body of opinion, particularly from the legal profession, expressing the view that the Bill as drafted is unnecessarily complex and, in places, requires amendment in order to avoid further difficulties in legal interpretation in the future.” This is something that Paul Wheelhouse MSP has, so far, failed to recognise. In the evidence gathering session by the Committee on 22 May he said:-
…the legal team has worked extremely hard to ensure that the bill is consistent with the measures in respect of tenant crofters. There are different ways to draft a bill, but we are not aware of any defects at this stage.
Many potential defects had, by that stage, been identified in the submissions made by myself, Sir Crispin Agnew QC, Derek Flyn and others. Paul Wheelhouse MSP may be turning a blind eye to these but it is good to see that the Committee is not. Indeed, the Committee went as far as to state that:-
…it strongly recommends that the Scottish Government carefully considers any amendments which may be required to the Bill at Stage 2 to allow for full scrutiny (seeking information, evidence and advice on any legal issues as appropriate) to ensure that the Bill is clear and competent and does not add further complexity to an already complex body of legislation, or have the potential to give rise to further unintended consequences.
Let’s hope that the amendments that do need to be made are indeed made at Stage 2.
Another 10 points for the Committee for highlighting that other problems exist with crofting law that need to be fixed. As they said:-
The Committee notes the significant number of other outstanding issues relating to crofting many believe require to be addressed by the Scottish Government following the conclusion of consideration of this Bill by Parliament.
With the Committee going on to ask:-
… the Scottish Government to identify how it intends to address the other issues within crofting law which were brought to the Committee’s attention during its scrutiny of the Bill and to inform the Committee of how it intends to proceed. The Committee recommends that the Scottish Government indicates how it intends to address the wider criticisms that have been made, particularly by the legal profession, of the current state of crofting law as a whole.
I, as I am sure other crofting lawyers do, look forward to hearing what the Scottish Government will be doing about the general crofting law mess.
5 out of 10
The Committee, to give them their due, highlight my point about there being no place for new law in the Bill by quoting a section of my submissions on this point:-
The proposed new section 24C(2) to the 1993 Act appears to be new law in that I cannot see why the existing section 25(1)(b) cannot equally apply as it stands to owner-occupied crofts. There should be no place for new law in the Bill rather than a necessary fix of existing legislation. Any new law requires careful consideration and should not be rushed through as part of this particular legislative process. Thus I would submit that the proposed new section 24C(2) should be removed from the Bill.
They go on to state:-
…the Committee notes that a number of issues have been raised regarding the drafting of this section of the Bill, particularly with regard to the definition of a “decrofting direction”; the new section 24(C) which the Bill would insert into the 1993 Act; and the protecting of access to crofting land. The Committee recommends that the Scottish Government gives careful consideration to these specific issues ahead of Stage 2.
This is good. But a general declaration that the Scottish Government should not be creating new crofting law by virtue of the Bill but simply fixing the perceived ‘flaw’ created by the Crofting Reform (Scotland) Act 2010 would have been better. Furthermore, I made the same point in my submissions about the proposed new section 24D(3) to the 1993 Act. However, that seems to have been overlooked by the Committee.
The Committee fell down, in my eyes, in certain areas where they achieve ‘nul points’. A number of submissions had raised the spectre of problems with decrofting by owner-occupiers who are not “owner-occupier crofters”. The Committee, to give them their due, did highlight the issue but unfortunately did not recognise the real significance of it. They said:-
The definition of what legally constitutes an owner-occupier crofter, and issues facing multiple owners of distinct parts of the same croft, seem, from the evidence submitted, to be the most pressing. However, the Committee is of the view that this Bill is not the appropriate place to seek to address such issues, given the urgency of the current problem, and the expedited process that is being sought to try and rectify the situation as soon as possible.
I would suggest, as I have previously, that leaving 700 owner-occupiers who are not “owner-occupier crofters” in decrofting limbo is a significant issue and one that could and should have been dealt with in the current Bill. There is also the ‘alien owner-occupier‘ issue that came to light after the date for receipt of submissions had closed. Notwithstanding that fact it was still brought to the attention of Committee members but unfortunately they did not consider it in their Stage 1 Report.
The impact of putting off dealing with these issues may only become fully apparent when the current Bill is enacted and it becomes clear that decrofting is still being prevented in situations where it simply should not be. Will we see, sooner rather than later, a Crofting (Amendment No. 2) (Scotland) Bill to resolve the plight of the 700 owner-occupiers who are being discriminated against by virtue of the Crofting (Amendment) (Scotland) Bill?
So with some 10 points, 5 points and ‘nul points’ I would, on balance, give the Rural Affairs, Climate Change and Environment Committee 6 out of 10 for their Stage 1 Report. They could have done better. However, no doubt they could have done worse.
[Picture Credits: Strictly Come Dancing © BBC (Photographer: Guy Levy) and Engelbert Humperdinck – Eurovision Song Contest 2012 © BBC]