At the evidence taking session on the Crofting (Amendment) (Scotland) Bill on 15th May the Convenor, Rob Gibson MSP, asked whether there were any views on my argument that the Bill is not needed?
Richard Frew stated:-
Yes—we have considered Brian Inkster’s view. It is not surprising that different people reach different conclusions on the issue, as a number of people who are involved in this have done. It is clear to us that, although that issue is worth considering, section 23(10) of the 1993 Act clearly sets out that a croft is not vacant if an owner-occupier crofter is on the croft.
Unfortunately, Richard Frew ignores any exploration of section 23(12A) of the 1993 Act but there again that has been a continual failing of both the Crofting Commission and the Scottish Government throughout this process. However, Derek Flyn took up the cudgel on section 23(12A):-
When I brought the matter to the Crofting Commission’s attention, Brian Inkster’s response was pretty immediate. However, having looked very closely at the Crofters (Scotland) Act 1993, as amended, I think that he has missed one thing. The requirement for an owner-occupier to report to the Commission within a month of becoming an owner-occupier is contained in section 23(12) of the 1993 Act, but there is also section 23(12A), which seems to talk about an owner-occupier crofter as a subset of owner-occupiers.
I am sorry—I realise that the issue is complicated, and I know that most people’s eyes glaze over when I start to talk about it. The point is that owner-occupiers are not entitled to occupy their crofts, which can therefore be held to be vacant, and they can be asked to take tenants. However, owner-occupier crofters are entitled to occupy their crofts and must intimate to the Commission the fact that they are owner-occupier crofters. Instead of their being persons who have to give notice, they are persons who give notice as owner-occupiers as well as intimating the fact that they are owner-occupier crofters. I think that Brian Inkster has missed the fact that owner-occupier crofters are a subset of owner-occupiers. The matter is very complicated but, having looked at it many times since Christmas, I cannot see how one can be persuaded that an owner-occupier crofter could have a vacant croft.
The two things that are needed for decrofting are an application by a landlord or landowner and a vacant croft. Although an owner-occupier crofter could be seen as a landlord under the legislation, he certainly could not have a vacant croft.
If your eyes have not glazed over and you are still reading this then I do not believe that owner-occupier crofters are a sub-set of owner-occupiers. Indeed to the contrary an owner-occupier crofter appears to have received special status by way of the Crofting Reform (Scotland) Act 2010 setting them into a category of their own that is very distinct from owner-occupiers. You need look no further than the current controversy over problems associated with applications to decroft by owner-occupiers as opposed to by owner-occupier crofters.
Section 23(12A) is one of those deeming provisions in the 1993 Act which often seem to cause difficulties in understanding and interpretation. It quite simply deems an owner-occupier crofter to have a vacant croft for the purposes of decrofting under section 24(3) of the 1993 Act. If that is not the purpose and intent of section 23(12A) what does that section actually do and why was it introduced by the 2010 Act?
However, as Sir Crispin Agnew QC diplomatically put it:-
I think that the Bill will solve the particular problem by making it clear that the Crofting Commission can decroft owner-occupier crofts. Brian Inkster might well be right but Derek Flyn might well be right that he is wrong. Until a case has gone to the Land Court and it has made a determination, it is sensible to clarify the situation for the avoidance of doubt.
That is indeed where we are at and we shouldn’t, at the moment, whilst some redrafting of the Bill is necessary and hopefully in hand, spend much time debating whether or not the Bill was necessary. There may be a place for a post mortem after the Bill becomes an Act to see if things could have been done differently by the Crofting Commission and or the Scottish Government when the ‘problem’ first manifested itself. From that lessons may be learned for the future to hopefully avoid such a situation arising again.
[NB: This blog post forms part of Submissions (Part 3) by Brian Inkster on the Crofting (Amendment) (Scotland) Bill. See Crofting is not a perfect world and The Crofting Law Hydra which both also form part of those Submissions (Part 3). In addition see Submissions (Part 1): A Sledge Hammer to Crack a Nut; and Submissions (Part 2): An Alternative Crofting (Amendment) (Scotland) Bill]
[Picture Credit: SUbSET via The Presidents of the United States of America]