Tag Archives: Crofting Law Sump

My response to the Consultation on the Future of Crofting Legislation

Response to the Consultation on the Future of Crofting LegislationThe Consultation on the Future of Crofting Legislation received responses up until 20 November 2017. An analysis of the responses was published on 21 March 2018 and Fergus Ewing MSP, Cabinet Secretary for the Rural Economy and Connectivity with responsibility for crofting, outlined the Scottish Government’s plans for legislative reform to the Cross-Party Group on Crofting on 28 March 2018.

I will come back on this blog to look in more detail at the analysis and Government plans. In the meantime I thought I should publish here my own personal response to the Consultation.

Current Scottish Government crofting policy may be stated as:

The Scottish Government values crofting as a form of land tenure and recognises
the added contribution that crofting continues to make to the rural economy and the
sustainability of rural and remote rural communities.

The Scottish Government is committed to reforming crofting to secure its future,
bring new blood into crofting communities, and ensure it can continue to contribute to
the development of a thriving rural Scotland.

This policy is reflected in the current legislative framework which places a number of
duties on crofters, including the duty to reside within 32 km of the croft; cultivate the
croft, or put the croft to another purposeful use; and not misuse or neglect the croft.
These duties serve to maintain the integrity of rural communities in the Highlands
and Islands.

Question 1: Do you agree with the stated Scottish Government policy on crofting?

Answer 1: No strong views on the question of policy but will refer to it when commenting on the ‘Clean Sheet’ approach to legislative reform below.

Question 2: Please select your preferred option to indicate which you believe to be the most suitable way to proceed with any crofting law reform. Should you wish to suggest another approach that has not been discussed above, then please select ‘other’ and provide details.

The options given were:-

Option 1 – Consolidation Bill
Option 2 – Bill amending existing legislation / Pre-Consolidation Bill
Option 3 – Bill amending existing legislation and restating crofting law
Option 4 – Bill setting out ‘new’ crofting law

Answer 2: Option 2.

The Scottish Government has already given a commitment to legislative change. Option 1 will not achieve that and arguably should not have been an option at all.

The Scottish Government’s Crofting Policy “is reflected in the current legislative framework” and thus there would appear no merit in pursuing a ‘Clean Sheet’ approach when current legislation and policy coincide. There is also a danger that pursuing a ‘Clean Sheet’ approach will result in much debate and little ability to actually fix the problems identified in ‘The Sump’ Report within this Parliamentary term. Thus Option 4 should be discounted.

It would appear that Option 3 may result in less problem areas being tackled than Option 2. Consolidation does not need to happen at the same time as amendments to the law and should not be pursued at the same time if that is going to reduce the number of amendments involved to existing law.

Thus Option 2 is really the only sensible one for the Scottish Government to pursue.

Questions 3 – 9 asked various questions on (1) Absenteeism, Misuse and Neglect; (2) Assignation and Succession; (3) Common Grazings; (4) Crofting Commission Regulatory Functions and Processes; (5) Crofting Registration; (6) Owner-occupier Crofts; and (7) Standard Securities.

Question 10 asked for those seven issues to be listed in order of priority: ‘higher priority’ first to ‘lower priority’ last.

Rather than answering those questions individually, or providing a priority list, I decided to deal with that as part and parcel of my answer to question 11 and simply referred the Scottish Government to that particular answer.

Question 11: Please tell us any other thoughts you have about the proposed Crofting Legislation reform not covered in your earlier answers.

I have not answered questions 3 to 10 as I consider my views on these matters to be covered by ‘The Sump’ Report (November 2014) [PDF] and the Proposals put forward by the Scottish Government’s Crofting Legislation Stakeholder Consultation Group (10 February 2015) [PDF]. These documents prioritise matters but ultimately are of the view that all (not some) of the problem areas identified should be tackled and fixed by the Scottish Government. A new Bill under Option 2 should set out to do just that.

My views on Standard Securities are contained in an article entitled “Is it Time for a Crofting Mortgage Bill?” originally published by The Firm Online on 31 May 2010 and subsequently reproduced in The Crofting Law Group Newsletter. Those views have not changed with the passage of time.


Those were my responses. You can view 97 of the 122 submitted responses (N.B. 97 of those 122 respondents gave consent to publish their responses) via this Scottish Government link: https://consult.gov.scot/agriculture-and-rural-communities/crofting-consultation-2017/consultation/published_select_respondent.

In future blog posts I will look at the analysis of those responses and the Scottish Government’s plans in light of that analysis. I will also publish on this blog my views on Standard Securities from 2010 as ‘The Firm Online’, where those views were originally published, is no longer online.

The Cross-Party Elephant?

The elephant in the crofting cross-party room

Was there an elephant in the room at the crofting cross-party group meeting?

The cross-party group on crofting met last Wednesday at Holyrood.

It was very ably chaired by Tavish Scott MSP. He is one of the three co-conveners of the group, having been elected along with Kate Forbes MSP at the last meeting to replace Michael Russell MSP after Mr Russell became Brexit Minister. Rhoda Grant MSP is the third co-convener of the group.

Fergus Ewing MSP, cabinet secretary with responsibility for crofting, was a special guest at the meeting.

Mr Ewing made it clear at the outset that he couldn’t comment in any respect on the current controversy regarding the convener of the Crofting Commission given the allegations made by him against Mr Ewing which are the subject of an independent investigation.

Mr Ewing outlined all that the Scottish Government is currently doing to assist crofting and its future.

In particular he discussed future crofting law reform. The Scottish Government wants to modernise crofting law and make it transparent, understandable and workable in practice. Mr Ewing made it clear that they very much wanted to listen with no precise timetable in mind.

Mr Ewing stressed the importance of taking time to get it right. I couldn’t endorse that view more and trust that we won’t see the chaos of a huge number of last minute amendments that was encountered in creating the Crofting Reform (Scotland) Bill in 2010. That was possibly partly responsible for many of the issues (not common grazings ones that were not affected by the 2010 legislation) that has led to the current Scottish Government having to tackle crofting law reform so soon again.

After Mr Ewing left the meeting we continued with the topic of crofting law reform. Derek Flyn outlined the background to the crofting law sump report which he described as a “collection of what is wrong with crofting law”.

Michael O’Neil, the newly appointed Head of the Scottish Government Legislation Team, then outlined proposals to take crofting law reform forward.

Mr O’Neil indicated his intention to involve as wide a range of stakeholders as possible. He will get out and about and meet anyone he needs to speak with.

He will refer to the information contained in the crofting law sump and in the Shucksmith Report.

Some questions Mr O’Neil had in mind included:-

  • Why do we need crofting legislation?
  • What changes need to be made to it?
  • How do we go about delivering the changes identified?
  • Are there other options to new legislation?

A small team has been assembled by the Scottish Government to take crofting law reform forward.

It will be interesting to see this process move forward and we will keep you posted on the Crofting Law Blog as it does.

Bill Barron, the new Chief Executive of the Crofting Commission, was attending his first cross party group meeting. On the agenda was an “update on grazing committee removals and other current Crofting Commission business”. He appeared to dodge being able to provide that update on the basis that it was his fifth day in the job.

However, sitting next to him was the Convener of the Crofting Commission, Colin Kennedy. Mr Kennedy did not offer an update on grazing committee removals and other current Crofting Commission business. Indeed, other than to introduce himself as all attendees did at the outset, Mr Kennedy sat silent throughout the entire meeting. He didn’t speak and no one asked him to speak.

This was, of course, the first crofting cross-party group meeting that Mr Kennedy has attended in this session of Parliament, having avoided the last two. He has thus not expressed the views of the Crofting Commission to the cross-party group since this session of Parliament commenced.

Mr Kennedy has, however, been very vocal in expressing his own personal views (which don’t necessarily coincide with those of the board of the Crofting Commission) in the media over the past few weeks including, in particular, in four successive editions of the Scottish Farmer.

His presence at last week’s cross party group meeting was referred to by some as the elephant in the room. But can the situation simply be ignored?

Brian Inkster

Grazings Constables were added to the Sump by the Crofting Commission

Do I really need to climb in there with the rest of the mess?

In my last post I looked at how the Crofting Commission’s own policies and procedures made it clear that grazings constables could not be appointed in law when a grazings committee were removed from office.

It should also be noted that in or around April 2016 the Crofting Commission added to ‘The Sump‘ that they would like:-

Clarification in section 47 of the 1993 Act that if the Commission removes a grazings committee from office, the Commission can appoint a constable in its place and a right to suspend (as well as remove) grazings committees for a period of time to be determined by the Commission.

Thus they were looking, as part of ‘The Sump’, for legislative change by the Scottish Government to enable them to do these things.

Despite knowing that they didn’t have the power to do so they had, by this stage, already appointed one illegal grazings constable (Mangersta Common Grazings) and were to go on to appoint two more (at Upper Coll and on the Scottish mainland).

Brian Inkster

Common Grazings and the Spirit of the Law

Patrick Krause

Patrick Krause

I continue to catch up with news of ‘The Common Clearances‘ since I returned from holiday. With the amount of new news on this topic being generated daily this week that is a difficult task!

On 25 May 2016 Patrick Krause, Chief Executive of the Scottish Crofting Federation, published a piece on the Federation’s website. I now reproduce it here in its entirety with a small comment at the end from myself on the question of the will of Parliament.

 

The Spirit of the Law
The inexplicable case of a public body confusing legal dogma with good sense 

The Crofting Commission website says “The Crofting Commission regulates and promotes the
interests of crofting in Scotland to secure the future of crofting.” Following the summary
dismissal of two (or more) grazings committees; the foisting of grazings constables upon the
dismembered grazings; the demolition of crofters’ characters; the contradiction and confusion,
it is no wonder that crofters and those with crofting interests are standing agog and are asking
“What is going on in the Crofting Commission?” It is not for me to make any judgement on the
legalities of the fracas that has been taking place over the past month – crofting lawyers are
willingly giving opinion – but I will attempt to explain the essence. Common grazings are the
epitome of communal working, yet this is a spectacularly detrimental exercise in public
relations by the Commission that threatens the very core of crofting communities. I wonder
what the motive is.

One committee was summarily dismissed for not presenting fully audited accounts. Previously
the Commission had issued official guidance that ‘audited’ did not mean fully audited in the
legal (and expensive) sense, but could be taken to mean an independent examination – the
Commission were taking a “light-touch approach”. At the demand by the Commission for five
years annual accounts, the committee presented an independent examination of its accounts,
as is usual for small businesses and social enterprises and is perfectly acceptable to HMRC,
Companies House and the Charities Regulator. They were summarily dismissed for failing the
demand. This subsequent heavy-handed bombshell has naturally caused fear throughout
regulated grazings that they also are in breach for not having fully audited accounts.

A second committee was also summarily dismissed (both grazings then had a constable foisted
upon them by the Commission, which a leading crofting lawyer claims is not legal in these
circumstances), in this case for not distributing income from resumption. Though the only
shareholder asking for his tiny share of the resumption money was an absentee, legally he had
the right to it, we are told by the Commission.

It is hard to understand why this committee was unexpectedly sacked when it had attempted
to pay the absentee, under guidance of the Commission (and the other was also instantly
sacked even though it had seemed to have complied with all the demands of the Commission).
But let’s leave the detail and look at the principle.

The law says that money due as part value of resumption may be paid by the landlord to the
clerk of the committee for distribution by the clerk among the crofters concerned. The law is
not prescriptive in saying when or how the distribution is to take place. The Commission has
added in its regulations the word “immediate”.

For years grazings committees have managed finance in a workable, business-like fashion.
Income generated from anything, such as resumption of land, schemes for development or
through managing agri-environment schemes, is put in the bank. As in any business,
expenditure on carrying out maintenance or improvements is deducted before any profit is
disbursed to shareholders. If a grazings committee was expected to take all income and pay it
out as dividends to shareholders before deducting expenditure, only to then have to recover
from all shareholders their share of the expenditure, it would be a complete nonsense.

Hobbling grazings by making them produce fully audited accounts, when other similar
businesses or voluntary groups don’t, and making them run an unworkable cash-flow, that no
business would, could not have been the intention of the law, but this is what it seems the
Crofting Commission is trying to enforce, presumably at considerable public cost.

The Commission argue that it is only carrying out its interpretation of the law; but why now
and so destructively? If the Crofting Act is wrong (as much of it has proven to be) it could be
put in ‘The Crofting Law Sump’ for future rectification and the Commission could quietly
resolve the issues, rather than turning this into a public, highly-charged stand-off. If it is
enforced, grazings committees cannot comply so will resign (or be dismissed) and the grazings
will leave regulation – unless the Commission then imposes constables on all grazings.

The Commission clearly knows a lot more about regulation than I, and knows what the
consequences of this will be, but are keeping quiet about its objective. How does this fit with
the Crofting Commission Policy Plan in which it says “The Commission regards the shared
management and productive use of the common grazing to be essential for the sustainability
of crofting. To that end it will … work with crofting communities to promote the establishment
of effective grazing committees and will actively support established committees”?

The Convener of the Crofting Commission is implicated in the fracas perhaps more than a
convener ought to be, having had complaints raised against him for behaviour at one of the
grazings meetings and having turned up unannounced at the other. He came to ‘observe’
apparently. The chair would not allow him to participate as he had a conflict of interest, and it
was surely odd that he was allowed to stay at all, this being the case, and it being against the
wishes of crofters present.

The convener has been widely quoted as saying the Commission is to deliver “the express will
of Parliament”. He would do well to go back and look at the passage of the Bill that became the
2010 Act to see what the will of Parliament was. The will of Parliament is not necessarily the
letter of the law, or in this case, the Crofting Commission interpretation of it, if it is bringing
about the demise of regulated common grazings.

Patrick Krause (Chief Executive of the Scottish Crofting Federation)

Comment on the Will of Parliament

Patrick is correct to highlight the fact that the Commission are certainly not delivering “the express will of Parliament”. This is something I will return to in detail in a later blog post with a clear analysis of what the will of Parliament actually is on this issue. This should also, actually, help to spell out the letter of the law on the matter. It should be noted that to date the Crofting Commission has not given any explanation with reference to the law as to why they are taking the stance or actions that they are and have been taking.

Brian Inkster

Update – 20 June 2016: Crofting Commission flouts the will of Parliament

The Crofting Law A-Team

The Crofting Law A-Team

Martin Minton, Angus Mackay, Brian Inkster, Evonne Morrison and Derek Flyn

Inksters recently strengthened their crofting law team by the addition of three new team members.

Derek Flyn joins Inksters as a crofting law consultant. Derek is one of the best known and most highly respected crofting law experts in Scotland. He co-wrote the first book on crofting law in 1990 and is currently writing a new up-to-date book on crofting law with Keith Graham. He was in recent years the Chair of the Scottish Crofting Federation and continues to be their Parliamentary Spokesman.

Derek, together with Keith Graham, produced the Crofting Law Sump Report which highlighted to the Scottish Government in 2014 all of the problem issues requiring to be addressed in crofting law. This is likely to lead to new crofting law legislation during the term of the new Scottish Government.

Derek lives in Beauly and has strong connections with the Isle of Skye where his wife comes from and where he once worked.

Derek will be assisting the crofting law practitioners at Inksters and providing them with specialist advice on complex crofting law matters.

Angus Mackay also joins Inksters. He is a legal consultant with a specialist interest in Community Empowerment, Land Reform and Renewable Energy.

Angus has worked for large commercial law firms and latterly for a renewable energy company. He will be dealing with general crofting and property transactions and giving specialist assistance in community acquisitions and renewable energy schemes.

Angus comes from the crofting township of Melness in Sutherland.

Evonne Morrison is joining Inksters as a Trainee Solicitor. Coming from Shetland she has an interest in crofting law and will be assisting the team in day to day crofting transactions/cases.

These three new team members join Brian Inkster and Martin Minton to provide Inksters’ clients with a formidable crofting law team of five.

Crofting Law A-Team

Derek Flyn, Angus Mackay, Evonne Morrison, Martin Minton and Brian Inkster

Brian Inkster has dealt with crofting law matters for over 25 years and appears in the Scottish Land Court regularly and is often called upon to provide opinions on complex crofting law matters.

Brian is the Hon Secretary of the Crofting Law Group, a member of the Crofting Group of Scottish Land & Estates, the Cross-Party Group on Crofting at the Scottish Parliament, the Scottish Government Crofting Stakeholder Forum, the Crofting Register Stakeholder Forum and the Crofting Legislation Stakeholder Consultation Group.

Brian is a regular contributor at crofting law conferences and blogs about crofting law on this blog.

Martin Minton is a solicitor who has been with Inksters for five years concentrating on crofting law. Martin deals with crofting property transactions and disputes. He also deals with wills and executries involving crofting issues.

Martin comes from a crofting family in Dundonnell near Ullapool.

Martin has contributed articles and legal updates on crofting law for various publications and for this blog. He is the editor of the Crofting Law Group Newsletter.

Inksters’ crofting law team provide members of the Scottish Crofting Federation with a crofting law helpline.

Brian Inkster said:-

“With the current turmoil at the Crofting Commission over their handling of issues surrounding Common Grazings Committees it is essential for crofters to receive the best possible advice that they can get. I am delighted that Inksters have assembled a crofting law A-Team that will give our clients just that.”

If you need to call in the ‘Crofting Law A-Team’ then phone Rose Sullivan on 0345 450 0123 and she will direct you to a member of the team. Alternatively e-mail the crofting law A-Team or use the Contact Form on this blog to do so.

Crofting Law Hustings

Crofting Law Hustings at the Signet Library

The calm before the crofting law storm at the Signet Library!

Part of this year’s Crofting Law Conference (organised by the Crofting Law Group in association with the WS Society) will take the form of a hustings on crofting law. With the Scottish Parliamentary Elections looming there is great interest in crofting circles as to what the next Scottish Government might do to resolve the many problems in existing crofting legislation identified by The Crofting Law Sump Report.

The conference will take place at the Signet Library in Edinburgh on 17th March 2016 and is Chaired by Sir Crispin Agnew of Lochnaw Bt., QC, Chairman of the Crofting Law Group.

Brian Inkster, Hon Secretary of the Crofting Law Group, will provide an introduction as to where we are at with ‘The Crofting Law Sump’. Then Dr Aileen McLeod MSP, Minister for Environment, Climate Change and Land Reform will keynote on the current Scottish Government’s position on crofting law. She will be followed by the ‘Views on Crofting Law from the Opposition’ from MSPs and representatives from other political parties. The crofting law hustings will culminate with an opportunity for delegates to put their own questions to the panel in a ‘Crofting Question Time’ session. Participants are:-

  • Jean Urquhart MSP, Independent (moderating ‘Crofting Question Time’)
  • Rob Gibson MSP, Scottish National Party
  • Rhoda Grant MSP, Scottish Labour
  • Tavish Scott MSP, Scottish Liberal Democrats
  • Donald Cameron, election candidate for Scottish Conservative and Unionist Party
  • Andy Wightman, election candidate for Scottish Green Party

Following on from the crofting law hustings several recognised specialist speakers will present on Crofting Succession and Crofting Mortgages and representatives from both the Crofting Commission and Registers of Scotland will be there to discuss current issues. There will also be a case law update. Speakers and panellists include:

  • David Findlay, Solicitor, Crofting Commission
  • Rod Maclean, Solicitor, Murchison Law
  • Jill Clark, Head of Civil Law Reform Unit, Justice Directorate, Scottish Government
  • Eilidh Ross MacLellan, Solicitor, Inksters
  • Catriona Maclean, Chief Executive, Crofting Commission
  • Martin Corbett, Head of Policy Development, Registers of Scotland
  • Rhona Elrick, Registers of Scotland
  • Donald Cameron, Westwater Advocates

WS/CLG member: £180 + VAT
Non-member: £205 + VAT
Trainee/student/retired: £115 + VAT

All rates include lunch at the Signet Library.

To book, please contact Nicole Hatch at the WS Society:-

0131 220 3249

E-mail: nhatch@wssociety.co.uk

Download: crofting law conference booking form

The event is supported by First Title and Wesleyan

The Year of The Crofting Law Sump

Scottish Legal News Crofting Law Review 2015As 2015 draws to a close I am reproducing here an article I wrote for the Scottish Legal News Annual Review 2015. It looks at Crofting Law in 2014. Now a whole year ago I know. I have been asked to write another such review of 2015 which I will be doing shortly. That will appear in  the Scottish Legal News Annual Review 2016.

The Crofting Law Sump was set up by the Crofting Law Group in 2013. The purpose of ‘the Sump’ was to gather together details of the significant problem areas within existing crofting legislation.

During passage through the Scottish Parliament of the Crofting (Amendment) (Scotland) Act 2013, MSPs were informed by practitioners who had been called to give evidence about the many problems in the existing legislation that were causing difficulties for crofters, landlords and others.

Paul Wheelhouse MSP, who was then Minister for Environment and Climate Change with responsibility for crofting, gave an undertaking that his officials would investigate, in consultation with stakeholders, what the best method might be for dealing with these outstanding issues.

The Sump was set up to assist the Government in this process. Administration was carried out by Derek Flyn, retired crofting lawyer, and Keith Graham, formerly Principal Clerk of the Scottish Land Court. 2014 saw much activity by them both collating the issues and problems that are causing difficulties, prioritising them and indicating how the problems can be resolved.

In May 2014 the Crofting Law Group held workshops in Inverness to look at the problem areas identified in the Collected Sump Report and provide feedback thereon. Following those workshops and a written consultation process the Commented Sump Report was produced. There was then feedback sought on the priority levels attributable to problem areas within that report. Further debate on the Sump took place at the Crofting Law Group Conference in Lochmaddy, North Uist in October. The Final Report of the Crofting Law Sump, highlighting 126 problem issues, was then presented to the Scottish Government on 10 December 2014.

2015 will be the year that we hopefully see what the Scottish Government plan to do to resolve all of the problem areas that have been identified.

Whilst the Sump was being contemplated the Scottish Land Court were making decisions that shaped or clarified the law. During the year Lord McGhie retired as Chairman of the Land Court and was succeeded by Sheriff Roderick John MacLeod QC who became Lord Minginish. Sheriff MacLeod had been the Deputy Chair of the Land Court since 2006.

Whilst there were a few interesting and important decisions of the Land Court in 2014 the crofting law year ended with a bang following  their decision in MacGillivray v Crofting Commission (Application RN SLC/99/13 — decision of 18 December 2014).

That case concerned the Crofting Commission’s policy on decrofting where a croft unit is held in multiple ownership.

On 14 December 2012 Crofting Commissioners agreed to adopt a policy that all decrofting and letting applications in respect of crofts with multiple owners, must be submitted by all the owners, in their capacity collectively as the ‘landlord’ of the croft, even in those cases where the application related to a part of the croft held in title by only one of their number. This decision was based on legal advice obtained by the Commission but never published by them.

For the past two years many people have been affected by this policy decision and have been unable to decroft and thus develop land they own if a neighbour who happens to own part of the original croft unit is not willing to consent to the proposed development taking place. Mr & Mrs MacGillivray were in that very position. Their application to decroft land at North Ballachulish for house building had been rejected by the Crofting Commission because it did not have the consent of the landlord of that part of the original croft unit that remained in tenancy. Mr & Mrs MacGillivray referred the matter to the Scottish Land Court who decided that the Crofting Commission were wrong and it was competent for an owner of part of a croft to seek to decroft without requiring the consent of any other owners of the original croft unit. The Land Court took the view that the reference to a croft in the Crofting Acts applied equally to part of a croft.

The Land Court’s decision will have come as a relief to many who have been affected by the Crofting Commission’s policy. However, any hopes of an early resolution to their own predicaments have been dashed by the Crofting Commission lodging a request that a special case be stated on a question of law for the opinion of the Court of Session. It is now likely to be many months before a ruling is issued that will settle the matter once and for all.

Many crofting lawyers, including myself, have long held the view that the Crofting Commission’s policy was not a correct interpretation of the law. At the outset I called on this matter to be resolved before the Land Court by the Commission or action to be taken by the Scottish Government to do so. It is a pity that one affected party (there are many) has had to take the Crofting Commission to task over this whilst others have been left in limbo for over two years.

The Land Court’s decision was a clear, sensible and fair one. Even if the Court of Session ultimately were to take a different view, affected parties will continue to lobby the Scottish Government to amend crofting legislation to allow those who own croft land to be able to apply to decroft at their own instance. It is a problem that was highlighted in the final Sump Report as a priority one for the Scottish Government to tackle. They may, of course, not have to tackle it if the Court of Session agrees with the Land Court’s interpretation of the law.

N.B. Since this article was first published the Crofting Commission withdrew their request for a special case to be stated on a question of law for the opinion of the Court of Session. Therefore, the Land Court’s decision in MacGillivray v Crofting Commission (Application RN SLC/99/13 — decision of 18 December 2014) stands. See: Crofting Commission make a U-turn on Decrofting Appeal to the benefit of many owner-occupiers.

Download the Scottish Legal News Annual Review 2015 [via Calameo].

Brian Inkster

Future of Crofting Conference in Tweets

Future of Crofting Conference - Jean Urquhart MSPI was live tweeting from @croftinglaw yesterday at The Future of Crofting Conference in Inverness. Here is what I tweeted:-

The Future of Crofting Conference gets underway #croftingfuture

Future of Crofting Conference gets underway

Importance of crofting to the economy and need for practical measures to assist being espoused by @JamieMcGrigor #croftingfuture

We can now see but not hear @AileenMcLeodMSP. Technical issues with video sound hopefully be resolved shortly! #croftingfuture

We now have @AileenMcLeodMSP on screen both vision and sound. #croftingfuture

Hearing about @AileenMcLeodMSP’s visits around Crofting Counties (including Orkney and Shetland) and visits to @CroftingScot #croftingfuture

Meant to tweet a pic of @AileenMcLeodMSP at #croftingfuture conference. Here it is:

Aileen McLeod at Future of Crofting Conference

Now hearing from @AileenMcLeodMSP about the Vision for Crofting being formulated by various stakeholder groups #croftingfuture

Discussion by @AileenMcLeodMSP about @CroftingLawSump and taking crofting legislation forward in next parliamentary session #croftingfuture

Importance of young crofters being highlighted by @AileenMcLeodMSP #croftingfuture

Reference by @JamieMcGrigor to @AileenMcLeodMSP being an early SPICE girl! #croftingfuture

Next up @MarkShucksmith #croftingfuture

Crofting “a smallholding entirely surrounded by regulations… OR a model for the 21st century?” @MarkShucksmith #croftingfuture

Four main issues emerged from @MarkShucksmith’s report #croftingfuture

Mark Shucksmith - four main crofting issues

Working the land was the message @MarkShucksmith got over and over again #croftingfuture

Key diagram for better governance @MarkShucksmith #croftingfuture

Mark Shucksmith - Key Crofting Diagram for Better Governance

Regulation half the story need development @MarkShucksmith #croftingfuture

Early cross party support but that turned by some into bin @MarkShucksmith #croftingfuture

Bin @MarkShucksmith’s Report image #croftingfuture:

Mark Shucksmith - Bin the Crofting Report Campaign

Unfinished business @MarkShucksmith #croftingfuture

Mark Shucksmith - Unfinished Crofting Business

Evidence from @MarkShucksmith’s Report still there but does anyone refer to it today? Should still do so when considering #croftingfuture

Report by @MarkShucksmith been translated into Japanese. Norway, Ireland and West Virginia all looking at it. #croftingfuture

Introduction given by @iangeorgemacdo1 in Gaelic. Now speaking (in English) about the ‘new’ Crofting Commission #croftingfuture

Latest @CroftingScot Plan more fully aligned with legislation @iangeorgemacdo1 #croftingfuture perhaps depending on your interpretation 😉

Large amount of cooperation with @coftingscot at roadshows from all stakeholders #croftingfuture

5 main areas to focus on in #croftingfuture….

1. Simplify crofting legislation #croftingfuture

2. Make crofts available to new entrants #croftingfuture

3. Increase affordable housing with meaningful grants and loans #croftingfuture

4. Provide specific ring fenced funding to a lead body to develop crofting #croftingfuture

5. Provide financial incentives through Pillars 1 and 2 #croftingfuture

RT @culcairn Mr Inksters addressing conference #croftingfuture

Future of Crofting Conference - Brian Inkster - The Sump

View from the fank: Young crofters need help with housing and crofters need less forms to fill out. #croftingfuture

Strong sense at #croftingfuture conference that croft mortgages should have been introduced in 2010 Act as originally intended. @scotgov

Get @BillGates to come to crofting counties + use renewable energy on crofts to power @Microsoft servers located in Scotland #croftingfuture

Prof @FrankRennie‘s #croftingfuture presentation ‘The Wider Cultural Context’ is available here:

Now Neil Ross of HIE on Crofting development #croftingfuture

Importance of working together – collaboration #croftingfuture

Future of Crofting Conference - Neil Ross - Collaboration

Now discussing wooly willows in species re-introductions to Scotland #croftingfuture

Panel discussion on crofting development #croftingfuture

Future of Crofting Conference - Panel on Development

More crofts needed #croftingfuture – perhaps reallocating absent and neglected crofts first rather than creating more that may go that way?

How do you actually bring crofting to Moray and Nairnshire? #croftingfuture – no easy answer to that one!

RT @kate4SLB Great quote at #futureofcrofting ‘should do away with the word ‘remote’ – anywhere outside the Highlands is remote for us!’

Only crofters themselves and those that aspire to be crofters can drive the future of crofting @JimHunter22 #croftingfuture

Can buy 200,000 acres of land in Sutherland and no regulation affecting it but not the case with a 5 acre croft @JimHunter22 #croftingfuture

Land Reform the elephant in the room. Crofting not a poor man’s farm. Need to know what we want, clarify that + move forward #croftingfuture

#croftingfuture afternoon session opened and to be facilitated by @JeanUrquhartMSP

Gordon Jackson of @scotgov now looking at the Vision #croftingfuture

Future of Crofting Conference - Gordon Jackson - Vision

Average age of a farmer = 58. Crofter probably a bit higher. #croftingfuture

Hearing about croftingconnections.com -exemplary and of national importance #croftingfuture

Now hearing about @SCFYC #croftingfuture

View from the fank on #croftingfuture is an optimistic one.

Final panel Q&A of the day at #croftingfuture

Future of Crofting Conference - Final Panel Session

Landlords who created crofts made them too small to force crofters into other work as well @JimHunter22 #croftingfuture

Very positive to hear young folk positive about the future of crofting @JimHunter22 #croftingfuture

Need to expand @WoodlandCrofts being discussed #croftingfuture

Commitment from @SCFHq to help create new crofts #croftingfuture

Can create new crofts from large ones. One big croft could be divided into several smaller ones. #croftingfuture

Best time to plant a tree was 30 years ago. Second best time is today. @JeanUrquhartMSP recommends we take action asap #croftingfuture

RT @SCFYC “Let’s not stand back & watch while crofting disappears, we are a vital part of agriculture in Scotland” – Jean Urquhart MSP

#croftingfuture conference comes to an end. Interesting day and look forward to @scotgov action on @CroftingLawSump in 2016.

Brian Inkster

The Future of Crofting Conference

The Future of Crofting Conference 2015Brian Inkster will be speaking about ‘The Sump‘ at The Future of Crofting Conference in Inverness on 4 December 2015. This conference is a joint venture involving the Scottish Parliament Cross Party Group on Crofting, the Highland Council and the Scottish Crofting Federation.

Conference details are:-

Where: Highland Council Chamber, Inverness.

When: Friday 04 December 2015 09.00 – 16.00 (registration opens 08.30).

Background: In the wake of the near collapse of the Crofting Reform Bill in 2006, pressure from the Scottish Crofting Federation led to Scottish ministers commissioning a Committee of Inquiry on Crofting (CoIoC). This was chaired by Professor Mark Shucksmith. The CoIoC undertook many community meetings throughout 2007 and delivered their final report in 2008.

This was the most comprehensive study of crofting since the Taylor Commission, which reported in 1954.

The Scottish ministers used this report to formulate a further bill, its passage through Parliament culminating in the passing of the Crofting Reform (Scotland) Act 2010. Before the 2010 Act was published a conference called ‘The Future of Crofting’ was held in Stornoway in January 2010, hosted by the Comhairle nan Eilean Siar.

The Scottish Parliament Cross Party Group on Crofting agreed at a meeting in April 2015 that it is time to hold a further ‘Future of Crofting’ conference to look at what progress has been made since the CoIoC. The Highland Council have generously offered to host this with funding assistance from HIE.

Conference agenda: the conference offers expert speakers on the CoIoC, including Professor Shucksmith, and on the state of crofting law, regulation and development. There will also be ‘a view from the fank’ – a reflection by crofting activists. The format will give plenty of time for open discussion to gather views from the floor, which will be collated and presented by the Cross Party Group on Crofting, on behalf of the conference, to the Scottish Government.

You can download the conference programme here: Programme – The Future of Crofting Conference – 4 Dec 2015.

The conference is free and as there are limited places, advance registration is essential.

To register please email Maria Scholten.

Decrofting uncertainty continues as Crofting Commission take case to the Court of Session

Court of SessionThe Crofting Commission last week lodged a request that a special case be stated on a question of law for the opinion of the Court of Session in connection with the Land Court’s decision of 18 December 2014 in the case of MacGillivray v Crofting Commission. That case concerned the Crofting Commission’s policy on decrofting where a croft unit is held in multiple ownership.

On 14 December 2012 Crofting Commissioners agreed to adopt a policy that all decrofting and letting applications in respect of crofts with multiple owners, must be submitted by all the owners, in their capacity collectively as the ‘landlord’ of the croft, even in those cases where the application related to a part of the croft held in title by only one of their number. This decision was based on legal advice obtained by the Commission but never published by them.

For the past two years many people have been affected by this policy decision and have been unable to decroft and thus develop land they own if a neighbour who happens to own part of the original croft unit is not willing to consent to the proposed development taking place. Mr & Mrs MacGillivray were in that very position. Their application to decroft land at North Ballachulish for house building had been rejected by the Crofting Commission because it did not have the consent of the landlord of that part of the original croft unit that remained in tenancy. Mr & Mrs MacGillivray referred the matter to the Scottish Land Court who decided that the Crofting Commission were wrong and it was competent for an owner of part of a croft to seek to decroft without requiring the consent of any other owners of the original croft unit. The Land Court took the view that the reference to a croft in the Crofting Acts applied equally to part of a croft.

The Land Court’s decision will have come as a relief to many who have been affected by the Crofting Commission’s policy. However, any hopes of an early resolution to their own predicaments have been dashed by the Crofting Commission appealing that decision to the Court of Session. It is now likely to be many months before a ruling is issued that will settle the matter once and for all.

Many crofting lawyers, including myself, have long held the view that the Crofting Commission’s policy was not a correct interpretation of the law. At the outset I called on this matter to be resolved before the Land Court by the Commission or action to be taken by the Scottish Government to do so. It is a pity that one affected party (there are many) has had to take the Crofting Commission to task over this whilst others have been left in limbo for over two years.

The Land Court’s decision was a clear, sensible and fair one. Even if the Court of Session ultimately were to take a different view, affected parties will continue to lobby the Scottish Government to amend crofting legislation to allow those who own croft land to be able to apply to decroft at their own instance. It is a problem that was highlighted in the final Crofting Law Sump Report as a priority one for the Scottish Government to tackle. They may, of course, not have to tackle it if the Court of Session agrees with the Land Court’s interpretation of the law.

Brian Inkster