Tag Archives: decrofting

Crofting (Amendment) (Scotland) Bill is passed

Scottish Parliament - Stage 3 Debate - Crofting (Amendment) (Scotland) Bill

The Crofting (Amendment) (Scotland) Bill was passed by the Scottish Parliament today. The official press release from the Scottish Government reads:-

Decrofting legislation to tackle the difficulties owner-occupier crofters are facing when applying to decroft their land has been passed by the Scottish Parliament.

Decrofting land can enable a house to be built on the land and facilitate croft land being passed from one generation to the next. It was the intention of the Scottish Government and the Scottish Parliament that tenant and owner-occupier crofters be treated similarly under the Crofting Reform (Scotland) Act 2010.

The issue came to light recently that owner-occupier crofters were unable to apply to the Crofting Commission to decroft land and the Scottish Government brought forward a bill to amend existing legislation.

The Environment and Climate Change Minister Paul Wheelhouse said:

“The Scottish Government has been working extremely hard with the Scottish Parliament, the Crofting Commission and other stakeholders to resolve these issues as quickly as possible.

“I hope the legislation passed by the Scottish Parliament today offers owner-occupier crofters, lenders and others the reassurance that action has been taken and decrofting of land can continue, where it has no negative impact on crofting as a whole.

“I gave an undertaking to this Parliament during Stage 1 of the Bill that my officials will investigate, in consultation with stakeholders, what the best method might be for dealing with the outstanding issues. Stakeholders should therefore expect contact from my officials to arrange a discussion on the next steps for crofting.

“I would like to thank members for the cross-party support this Bill has received as the Parliament worked together to resolve this issue.

It is good to see the Bill passed and the decrofting problems faced by owner-occupier crofters hopefully now behind them. It is, however, a pity that the Bill was not simplified somewhat in its drafting rather than remaining a sledge hammer to crack a nut. It is also a pity that issues raised about it by crofting law experts were not properly addressed during the passage of the Bill through the Scottish Parliament. But the conclusion I came to in my last blog post was that the Scottish Government knows best about crofting law.

Let us hope that we see a different approach from the Scottish Government when they engage with stakeholders to discuss the “next steps for crofting” as Paul Wheelhouse said, again, today that they would be doing.

Brian Inkster

The Scottish Government knows best about Crofting Law

The Scottish Government knows best about Crofting LawAt the Stage 2 Debate on the Crofting (Amendment) (Scotland) Bill, on 12th June, Alex Fergusson MSP asked:-

Given the issues that have been raised by Sir Crispin Agnew, in particular, about some parts of the bill not matching up with others, if I can use such loose terminology, why have you not seen fit to lodge amendments to address his concerns?

Paul Wheelhouse MSP, Minister for Environment and Climate Change, responded:-

We are aware that there are a number of alternative views about the form and content of the bill, as was discussed during the stage 1 debate. We are aware of those views and respect the opinions of Sir Crispin Agnew and Derek Flyn and others, including Brian Inkster, but we believe that the bill provides the necessary clarity and legal certainty that the owner-occupier crofters and other stakeholders are looking for to allow them to decroft their land. The commission will have the power to consider such applications after the bill is enacted.

The Scottish Government considered the detailed drafting issues that were raised; I can promise the committee that we have gone over them in some detail. However, as it is drafted, the bill achieves its purpose. A number of key witnesses to the committee, such as Sir Crispin Agnew, and the Crofting Commission, through David Balharry and Derek Flyn, all agreed that the bill delivers on the purpose that the Government has set out of giving owner-occupiers the ability to decroft.

The Scottish Government is committed to drafting in as plain and accessible a manner as is consistent with achieving the necessary outcome. We all know that crofting law is horrendously complicated: that message came across loud and clear at last week’s debate, and I do not disagree with that conclusion, which was reached by many members. As I said during the stage 1 debate, the key issue is that the provisions in the bill, in its current form, are as close as we could get them to the provisions for tenant crofters. That will enable us to deliver similar treatment, which we all want. I cannot prejudge what the committee will say, but the nature of the debate so far seems to indicate that we want to give owner-occupiers provisions that are similar to those for tenant crofters where appropriate. Obviously, some aspects, especially on land tenure and right to buy, had to be modified, but we are talking about the general provisions. In order to do that, we have kept as close as possible to the original wording of the provisions for tenant crofters.

The bill has therefore taken a particular form. I appreciate that some people are concerned that it could have been simpler, but then there might have been more room for doubt that the provisions were meant to be the same as those for tenant crofters. By taking the view that we have, we have managed to minimise that possibility. I hope that that answers Mr Fergusson’s question.

Alex Fergusson responded:-

It does, and in much more detail than I was expecting; I thank you for that. I just want to clarify that my reason for raising the point was not to question the purpose of the bill or its likely outcome but to look for confirmation, which I think you have given me, that you looked at the technical drafting points that were raised by Sir Crispin Agnew, which were not really questioning the outcome of the bill but questioning whether separate parts of the bill worked together in a way that goes beyond my ken. You have told me clearly that you have looked at all that and are satisfied with the way in which the bill is drafted, and I am quite happy to accept that. It is good to have that on the record.

The position stated by Paul Wheelhouse at Stage 2 is really much the same as when he gave evidence to the Rural Affairs, Climate Change and Environment Committee back on 22nd May (see: length is not everything). But by now we have really moved away from the debate on length. It is clear that the Scottish Government has no intention of rewriting the Bill in more simplistic terms (that is probably too much like hard work in the short time frame available to ensure that the Bill becomes an Act).

However, many of the comments made by Sir Crispin Agnew QC, Derek Flyn, myself and others related to the detail of the Bill in its current form and small tweaks to that necessary to avoid confusion, problems and, in at least one case, to close a loophole that the Scottish Government had inadvertently opened. All of this appears to have been sidestepped. If the Scottish Government did indeed consider “the detailed drafting issues that were raised” and went “over them in some detail” would it not have been good (perhaps essential) to have seen a detailed written rebuttal of each with reasons why the Scottish Government thought the expert crofting law views on each to be of no apparent value? Without that how easy is it for MSPs to easily consider the matter given the complexity of crofting law that they are all ready to acknowledge? They simply have to accept the Minister’s word for it as Alex Fergusson did. But at least he did get it on record and that just might come back to haunt the Minister.

At the Stage 1 Debate comments were made of the fact that the Scottish Government were benefitting from free legal advice from crofting law experts and should be taking advantage of that. As Graeme Dey MSP put it:-

Sir Crispin Agnew offered helpful advice on wording, and it is not often that a learned QC offers advice gratis.

Jamie McGrigor MSP said:-

I am not a lawyer or a legal expert so, like the committee, I can only urge ministers to take on board and address the concerns that have been expressed by eminent figures such as Sir Crispin Agnew QC and Brian Inkster. Ministers should, if required, lodge amendments to the bill at stage 2 so that we do not find ourselves having to enact yet another amendment bill in a few months or years. We must try to avoid that at all costs.

This was a sentiment expressed in the debating chamber by many of the MSPs who spoke at the Stage 1 Debate. However, we are now approaching Stage 3 and the Bill remains as originally drafted by the Scottish Government and it looks likely that it will be enacted as so drafted.

20 crofting lawyers in a room together thought that amendments were required to the Bill. But clearly the Scottish Government knows best and the views of the legal practitioners who know and deal with the legislation on a regular and detailed basis is of no real concern.

Those lawyers will be the ones picking up the pieces and arguing before the Scottish Land Court, in the fullness of time, about any problems and unintended consequences that may have been created by the Scottish Government.

Jamie McGrigor also said:-

Not long ago, I attended a meeting of crofting lawyers in the Signet library, at which an eminent lawyer assured the brethren there that there would be much work for them in crofting law for the foreseeable future. I am beginning to understand why he said that.

The crofting lawyers in question have actively tried to reduce that workload by seeking to assist the Scottish Government in the drafting process. However, the Scottish Government in rejecting that assistance appears content to increase the workload those lawyers will have by adding to the complexity of crofting law. So be it for now.

However, the lawyers are not about to give up offering their help (although perhaps, some might argue, they should simply leave the Government to it). The Crofting Law Group will be at the Signet Library again on 27th September 2013 for their annual Crofting Law Conference in association with the WS Society. The theme of this year’s Conference is to be Crofting Reform. It is to be hoped that the Scottish Government will take that opportunity to engage with crofting lawyers and participate in the Conference for the benefit of both organisations and ultimately, hopefully, for the benefit of crofting tenants, owner-occupier crofters, owner-occupiers (who are not owner-occupier crofters), landlords and others affected by crofting law. I will blog more about the Conference once the programme for it has been finalised.

Brian Inkster 

[Photo Credit: 1984: Virgin Films]

808 not 700 owner-occupiers who are not owner-occupier crofters

808 owner-occupiers who are not owner-occupier croftersAt the stage 1 debate on the Crofting (Amendment) (Scotland) Bill on 6 June 2013 the following exchange took place between Rob Gibson MSP and Paul Wheelhouse MSP, Minister for Environment and Climate Change (with responsibility for crofting):-

Rob Gibson asked:-

How many people are in this multiple owner situation and how many are caught up in these decrofting problems? Does that, too, conform to the 80:20 principle?

Paul Wheelhouse responded:-

Estimates of the numbers involved vary. To pick up Alex Fergusson’s earlier point, I believe that there are between 3,000 and 4,000 owner-occupier crofter crofts and know that the figure of 700 has been bandied about for crofts in multiple ownership. We believe that the actual figure might be slightly higher, at 808, but if it will assist, we can clarify the exact number for the committee and members as we move towards stage 2. The issue is another that falls outwith the scope of the bill but which we recognise needs to be addressed, and I hope that members whose constituents are affected will note that. The bill deliberately has a tight focus to address a key issue and our view is that, unfortunately, any deviation to cover such a substantive issue would not necessarily respect the expedited procedure that is being applied to the bill, on which there is clearly a consensus to address the existing decrofting issue.

The figure of 700 was not really bandied about as such. It was an unknown figure when the question was first asked of the Scottish Government on 15th May and one that was supplied at a later date (22nd May) by an official from the Crofting Commission. One would have thought, at the time, that this would therefore have been a fairly accurate and reliable figure. However, as we have seen it is a moving target as the Crofting Commission check and reduce the number of owner-occupier crofters thus increasing the number of owner-occupiers who are not owner-occupier crofters. Paul Wheelhouse recognises that 808 may not be the exact number and this has still to be clarified. It is amazing that we are now so many weeks down the line and such clarity has still to be given.

Paul Wheelhouse did not answer the second part of Rob Gibson’s question, i.e how many owner-occupiers (who are not owner-occupier crofters) are caught up in decrofting problems. Rob Gibson had asked the same question on 22nd May and at that time Paul Wheelhouse said:-

I am happy to try and establish, after the meeting, whether there are any statistics that would give us an idea about how many crofters might be affected. I apologise that I do not have the numbers in front of me now.

This, I would suggest, is a more important figure to be clarified than the total number of owner-occupiers in existence. Perhaps MSPs need to press for an answer on this question at the final debate on the Crofting (Amendment) (Scotland) Bill on Tuesday 25th June. It has been dodged by the Minister at least twice now during the passage of the Bill. It may not be directly relevant to the Bill as the Bill does not deal with those decrofting problems. But it might highlight the real need for a swift Crofting (Amendment No. 2) (Scotland) Bill to resolve the plight of the owner-occupiers, not to mention the ‘aliens‘, who still will not be able to decroft once the first of those two Bills becomes an Act.

There was also an implication by Paul Wheelhouse that this is a new decrofting issue. It should be remembered that the decrofting problem faced by owner-occupiers actually pre-dates the one faced by owner-occupier crofters albeit by 7 days.

Brian Inkster

What happened to the six non owner-occupier crofters?

The six who are not owner-occupier croftersAt the stage 1 debate on the Crofting (Amendment) (Scotland) Bill on 6 June 2013 Paul Wheelhouse MSP, Minister for Environment and Climate Change (with responsibility for crofting), stated:-

“There was of course a question over what to do with… the 44 applications that are currently held in abeyance. The observant will have noticed that the figures have changed slightly from the earlier announcement in Parliament on 28 March—the number of outstanding applications has reduced from 50 to 44 as a result of checks undertaken by the Crofting Commission at our request, which have verified that six of the outstanding applications did not in fact relate to owner-occupier crofters.”

What pray did those applications relate to if not owner-occupier crofters? Aliens perhaps 😉 There is no explanation that I can find in the Stage 1 debate and no MSP enquired as to the fate of the six involved. So I made my own enquiries of the Scottish Government and was advised that these were, as I suspected, owner-occupiers who were not owner-occupier crofters.

Thus, whilst on the face of it, Paul Wheelhouse’s announcement looks like the decrofting problems of some have been reduced the fact of the matter is it may only be beginning. Those owner occupiers are likely to be owners of part of what is technically classed by the Crofting Commission as one croft unit. Thus, given the Crofting Commission’s recent policy (apparently based on legal advice which as usual remains top secret), decrofting applications will only be considered by the Crofting Commission if all the distinct owners of that croft unit concur in the application. That could happen in all six cases but it may only happen in some or indeed none. If the latter you then have six people who simply cannot decroft land that they own. The six are therefore potentially in a worse position than they would have been if classed as owner-occupier crofters with a resolution in sight, by virtue of the Crofting (Amendment) (Scotland) Bill, possibly as soon as the end of this month.

Thus this latest spin actually hides a problem that the Scottish Government is at the moment continually sidestepping. Whilst they have indicated an intention to tackle the numerous other problems that exist in crofting legislation this is one that certainly needs to be addressed sooner rather than later. Remember… crofting is not a perfect world.

Brian Inkster

[Photo Credit: Nature’s number 6 by David M. Goehring]

6 out of 10 to the Rural Affairs, Climate Change and Environment Committee

Strictly Come Dancing 2012The 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.

10 Points

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.

Nul Points

Nul points for RACCE CommitteeThe 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?

Overall Score

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.

Brian Inkster

[Picture Credits: Strictly Come Dancing © BBC (Photographer: Guy Levy) and Engelbert Humperdinck – Eurovision Song Contest 2012 © BBC]

Stage 1 Report on the Crofting (Amendment) (Scotland) Bill

Rural Affairs, Climate Change and Environment Committee

Rural Affairs, Climate Change and Environment Committee

The Rural Affairs, Climate Change and Environment Committee published their Stage 1 Report on the Crofting (Amendment) (Scotland) Bill on 31 May 2013. They summarised their findings as follows:-

1. The Committee regrets that an unintended consequence of omissions, and/or a lack of clarity in existing crofting legislation has led to the Crofting Commission suspending decisions on applications by owner-occupier crofters to decroft all or part of their land, as the Crofting Commission considered there was no legal basis on which to make such decisions. Such applications had been made, and decided upon, since October 2011, until the problem came to light earlier this year, and the suspending of consideration of such applications has prevented some owner-occupier crofters enjoying equal rights to tenant crofters, which was the policy intention of the existing legislation.

2. The Committee agrees that the legislation needs to be corrected and therefore welcomes the Scottish Government’s swift bringing forward of amending legislation which should not only remedy this issue for those making such applications to decroft in the future, but will also retrospectively apply to all those who previously made applications, or who currently have applications on hold as a result of the issue being identified.

3. However, whilst acknowledging that amending legislation is required, and that the Bill as drafted should address the identified problem, the Committee notes 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.

4. 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.

5. The Committee was struck by the evidence it received from those knowledgeable in this area of the law, which demonstrated significant frustration and concern with the increasing complexity and layers of crofting law. Crofting law as it stands was described as “a mess” by more than one respondent to the Committee’s call for views.

6. The Committee makes specific comment on the provisions in the Bill in the main body of this report below. However, the Committee welcomes the policy intention of the Bill to rectify the anomaly which has been identified that currently prevents owner-occupier crofters from applying to decroft all or part of their land. The Committee therefore recommends that the Scottish Parliament support the general principles of the Bill at Stage 1, to allow the Bill to pass to Stage 2.

7. However, in doing so, 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.

8. The Committee asks 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.

Read the full Stage 1 Report on the Crofting (Amendment) (Scotland) Bill.

I will give my views on the Stage 1 Report in the next post on the Crofting Law Blog.

Brian Inkster

Owners of croft land who are aliens to the Crofting Commission

Some owners of croft land are aliens to the Crofting Commission

We are consulting with Ripley as to your crofting status.

It came to my attention today that there is yet another situation where the Crofting Commission are not currently processing decrofting applications. This one appears to have received no publicity as yet and no policy statement has been issued on it by the Crofting Commission (I assume because they have still to actually formulate one).

The situation is as follows:-

  • A croft house and garden ground is purchased by the crofting tenant without being decrofted.
  • That crofting tenant becomes the owner-occupier of the croft house and garden ground and remains the tenant of the surrounding croft.
  • The now owner-occupier sells the croft house and garden ground onto Mr. A and remains the tenant of the surrounding croft.
  • Mr. A’s solicitor does not pick up on the fact that the croft house and garden ground has not been decrofted.
  • Mr. A, many years later,is in the process of selling the croft house and garden ground to Mr. B. Unfortunately for Mr. A it is picked up by Mr. B’s solicitor that there is no decrofting direction.

The solution to the problem is, of course, for Mr. A to apply to the Crofting Commission for a decrofting direction. He immediately does so but receives this response from the Crofting Commission:-

As the croft house site has not previously been removed from crofting tenure, it remains part of the croft [name of croft given].  Unfortunately, where a croft is partly owned and partly tenanted, as in this case, the status of the owner is currently unclear.  We have sought legal guidance on this matter and are unable at present to determine whether you are entitled to lodge a decrofting application.  We will provide you with an update as soon as this guidance has been obtained.

Incredible! First we had owner-occupiers of a historically ‘divided’ croft not being able to apply for decrofting directions without the consent and concurrence of other owner-occupiers of that croft. Then we had owner-occupier crofters not being able to apply to decroft full stop. Now we have owner-occupiers of croft houses surrounded by tenanted croft land who cannot apply to decroft because “the status of the owner is currently unclear”. Where will this end? The Crofting Law Hydra is certainly in full flight and gaining heads by every turn.

The Scottish Government must seriously question what is going on at Great Glen House. The Crofting (Amendment) (Scotland) Bill, as currently drafted, is clearly seriously deficient in dealing with the decrofting problems that are emerging by the day. The last post on this blog suggested that the Crofters (Scotland) Act 1993 is a mess. There would appear to be no doubt about that given the constant desire by the Crofting Commission to reinterpret it.

Brian Inkster

[Picture Credit: Alien – 20th Century Fox]

The Crofting Law Hydra

HydraAt the evidence taking session on the Crofting (Amendment) (Scotland) Bill on 15th May Alex Fergusson MSP stated:-

The whole thing seems to me to be a bit like the Hydra—you cut off one head and two others appear. With crofting, we get rid of one problem and two others appear in its place. What other issues have been identified during the process for the 2010 Act and the recent process, and what timescale might the Government have in mind for addressing them?

Richard Frew responded:-

I am certainly aware that there are other issues, albeit that they are not of the scale of the one that is dealt with in the bill. There are issues not just with the 2010 Act, but with the 1993 Act and of course, the Crofting Reform etc Act 2007, which came between them. It is everybody’s responsibility, from the development of draft legislation—in this case, in the Scottish Government—and as it passes through Parliament to ensure that legislation is fit for purpose when it is passed and that it delivers what it is intended to deliver. We all need to work closely to ensure that that is the case with this bill, focused as it is.

There are problems. One that I would like to have a look at, as I mentioned earlier, is the definition of “owner-occupier crofter” in section 19B of the 1993 Act. Some people do not necessarily fall within that definition in the legislation. Whether they need to fall within it could clearly be considered. Other issues in the legislation are mostly to do with cross-references and how various sections interact, an example being the register provisions. It would be useful to look at those issues but, as I said, when and how that happens is a matter for ministers.

Alex Fergusson asked further:-

As a brief follow-up question, what priority do those issues have and how important is it to address them? I am afraid that I genuinely do not understand that. I presume that, if the problems are important, they ought to be addressed fairly soon.

Richard Frew responded again:-

As I said, it is for ministers to decide when such matters are addressed. I am sorry if I sound repetitive. Before we introduce any legislation, we have to consider carefully what it would do and what issue we are trying to address. If something is highlighted as being a particular problem, we would clearly want to consider not just legislation, but other ways of resolving it. For example, that might be done administratively, which I think would be the first choice.

It is a pity that as part and parcel of introducing the Crofting (Amendment) (Scotland) Bill the Government has not given a commitment to resolve all other problems associated with crofting legislation with a timetable for so doing. Much effort is going into a Bill which I believe was not necessary in the first place. There are many other problems with crofting law that have more unanimous support for being issues where the law is indeed flawed. Richard Frew has his work cut out if he is going to kill the Crofting Law Hydra as Heracles managed to kill the Hydra of Lerna. But the sooner Richard and the ministers he advises tackle it head on the better.

[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 which also forms 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: Hydra Monster from Istaevan]

An Alternative Crofting (Amendment) (Scotland) Bill

One Way or AnotherSubmissions (Part 2) by Brian Inkster on the Crofting (Amendment) (Scotland) Bill

Following on from my earlier submissions on the Crofting (Amendment) (Scotland) Bill (“the Bill”), I have drafted an alternative bill that deals with my main concerns, namely:-

  1. The over complex nature of the drafting of the Bill and the fact that a new set of provisions have been created to deal with decrofting by owner-occupier crofters rather than simply linking such decrofting in with the existing provisions contained in section 24(3) of the Crofters (Scotland) Act 1993.
  2. The introduction of what is arguably new law that has no place in a bill which has the sole purpose of fixing flaws in the existing law created by the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”)
  3. The omission to deal with the problems associated with applications to decroft by owner-occupiers as opposed to owner-occupier crofters.

This exercise shows that crofting law can be amended in a relatively simplistic way to achieve the outcomes sought. In so doing it renders obsolete the transitory provisions and the complicated table of modifications contained in the Bill. By making it more digestible it minimises the possibility of error caused by an over complex approach to the problem at hand. It reduces the length of the Bill from 1700 words to 621 words whilst still introducing new provisions to deal with the problems associated with applications to decroft by owner-occupier crofters. It probably could have been shortened even further by simplifying what is now clause 3 (appeals against certain decisions) of my alternative bill. However, I decided to simply maintain the drafting contained in the Bill as this particular clause may never be used and has, in any event, a very short life and limited effect.

I would suggest that the Scottish Parliament should seriously consider the approach taken by me as one to adopt. Here it is:-

An Alternative

Crofting (Amendment) (Scotland) Bill

An Act of the Scottish Parliament to allow decrofting by owner-occupier crofters and by owner-occupiers; and for connected purposes.

1.                            Applications to decroft by owner-occupier crofters and by owner-occupiers

(1)          The Crofters (Scotland) Act 1993 (c.44)(the “1993 Act”) is amended as follows.

(2)          After subsection 23(10) insert-

“23(10A)   Notwithstanding the terms of subsection (10) above an owner-occupied croft will always be vacant for the purposes of decrofting under section 24(3) and can be declared vacant for the purposes of section 25(3).”

                (3)          After subsection 23(12A) insert-

“23(12B)   An owner-occupier who is not an owner-occupier crofter and who owns a distinct part of a croft (as opposed to a pro-indiviso share of a croft) shall be entitled to apply for a direction under section 24(3) without the requirement for an owner-occupier or an owner-occupier crofter of the remainder or any other part of the croft to concur in that application.”

2.                            Retrospective effect and application

(1)          All applications made or purported to be made by an owner-occupier crofter under section 24(3) of the 1993 Act and directions granted or purported to be granted by the Commission under section 24(3) of the 1993 Act to such an owner-occupier crofter from 1 October 2011 until the coming into force of this Act are valid and enforceable.

(2)          All applications made or purported to be made by an owner-occupier (who is not an owner-occupier crofter or a pro-indiviso owner of a croft) under section 24(3) of the 1993 Act, without the concurrence of any other owner-occupier or owner-occupier crofter, and directions granted or purported to be granted by the Commission under section 24(3) of the 1993 Act to such an owner-occupier from 1 October 2011 until the coming into force of this Act are valid and enforceable.

(3)          In this section, the “Commission” and “croft” and “owner-occupier crofter” have the meanings given in the 1993 Act.

3.                            Appeals against certain decisions

(1)          In the case of a decision of a kind mentioned in subsection (2), section 52A of the 1993 Act applies with the modification that, in subsection (2)(b), for “the Commission dispose of the application” there is substituted “the coming into force of the Crofting (Amendment) (Scotland) Act 2013”.

(2)          The decision referred to in subsection (1) is one purported to have been made—

(a)          by the Commission under section 24(3) of the 1993 Act,

(b)          on an application of a kind mentioned in subsection (3),

(c)           during the period from 14 January 2013 until 25 February 2013.

(3)          The application referred to in subsection (2)(b) is one purported to have been made-

                (a)          by an owner-occupier crofter under section 24(3) of the 1993 Act,

(b)          during the period from 1 October 2011 until the coming into force of this Act.

(4)          In the case of a direction of a kind mentioned in subsection (5), section 25(8) of the 1993 Act applies with the modification that, in paragraph (a), for “the giving of public notification of the making of the direction” there is substituted “the coming into force of the Crofting (Amendment) (Scotland) Act 2013”.

(5)          The direction referred to in subsection (4) is one—

(a)          purported to have been given—

(i)           by the Commission under section 24(3) of the 1993 Act,

(ii)          on an application of a kind mentioned in subsection (3),

(b)          in respect of which the Commission gave public notification during the period from 14 January 2013 until 25 February 2013.

(6)          In this section, the “Commission” and “owner-occupier crofter” have the meaning given by the 1993 Act.

4.                            Commencement

This Act comes into force on the day of Royal Assent.

5.                            Short Title

The short title of this Act is the Crofting (Amendment) (Scotland) Act 2013

Crofting (Amendment) (Scotland) Bill Published

Scottish Parliament

Scottish Parliament

The Crofting (Amendment) Scotland Bill was introduced yesterday and published this morning:-

This Bill is to resolve the perceived ‘flaw’ in the Crofting Reform (Scotland) Act 2010 which the Crofting Commission say prevents them from processing or approving decrofting applications from owner-occupier crofters. See Top Secret Crofting Law and Decrofting Bill.

Environment Minister Paul Wheelhouse said:

It came to light recently that there was an issue with the Crofting Reform (Scotland) Act 2010 and the Scottish government, along with the Crofting Commission, has been working extremely hard to resolve these issues as quickly as possible.

There are, clearly, different legal opinions on this issue, and this bill will provide legal certainty for all involved in the process on the competency of owner-occupier crofter applications to the commission to decroft their land.

The Rural Affairs, Climate Change and Environment Committee (RACCE) is seeking views from organisations and individuals on the Crofting (Amendment) (Scotland) Bill.

How to submit written evidence

Evidence should be concise and typewritten in Word format.

The deadline for receipt of written submissions is Friday 17 May 2013. Owing to the timescale normally required for the processing and analysis of evidence, late submissions will only be accepted with the advance agreement of the clerk. The Committee prefers to receive written submissions electronically. These should be sent to: racce.committee@scottish.parliament.uk

You may also send a hard copy of written submissions to:

Rural Affairs, Climate Change and Environment Committee
Scottish Parliament
Holyrood
Edinburgh
EH99 1SP

They welcome written evidence in any language.

My thoughts

I will post my thoughts on the Crofting (Amendment) Scotland Bill when I have had the chance to digest it.

Brian Inkster