Tag Archives: decrofting

Decrofting Bill

Decrofting BillIt was announced today by Paul Wheelhouse MSP, Minister for Environment and Climate Change with responsibility for crofting, that the Scottish Government intends to bring forward a Bill, as soon as possible after the Easter Recess, to address the “flaw” in the Crofters (Scotland) Act 1993 that “inadvertently limits the circumstances in which owner-occupier crofters can apply to decroft land”. Not so much limits than completely prevents as far as the information issued to date by the Crofting Commission would suggest.

I have, of course, suggested that the existing legislation can be interpreted in such a way to allow decrofting of owner-occupied crofts. However, with differing opinions (although the Crofting Commission’s legal advice remains unseen) it is sensible for the position to be resolved beyond any doubt. Properly drafted legislation will hopefully do just that. A reference to the Land Court under section 53(1) of the 1993 Act could have done the same thing. However, the Crofting Commission would have faced the possibility of being found to have got it wrong using that route so perhaps it was not the favoured one.

In response to a question from Claire Baker MSP it was clarified by Paul Wheelhouse MSP that:-

… we are not proposing emergency legislation; rather, we are talking about a short crofting Bill that will – with the will of Parliament – be subject to expedited procedures.

Tavish Scott MSP stated (following the debate):-

Crofters across Shetland are directly affected by this shambles, so I welcome the Scottish government’s commitment to bring forward a proposed law change after the Easter break, but I want this done quickly. I will certainly support legislation that solves the problem, but this uncertainty affecting crofters needs to be ended quickly and I am urging the minister to work with MSPs across Parliament to achieve cross party agreement on both the new law and the timescale. Speed is of the essence.

Whilst I would agree with these sentiments it is also important that the Scottish Government get it right. Thus the new Bill needs to be handled with care.

Dr Alasdair Allan MSP asked what would be done “to seek crofters’ views on the Bill’s content as it makes its way through Parliament”. Paul Wheelhouse MSP indicated that the Scottish Government would “provide due opportunity for scrutiny” and he would be happy to consider any particular suggestions on how to consult crofters in Dr Allan’s constituency.

Rhoda Grant MSP asked whether the Government would “publish its legal advice, so that solicitors can properly advise clients”. Paul Wheelhouse MSP responded:-

As far as legal advice is concerned, I am sure that Rhoda Grant knows the contstraints that exist in that regard. In progressing the Bill, we will try to make it as clear as possible why we think that the legislation is flawed and what we need to do to rectify that. We will try to give as much clarity as possible on the rationale for the action that we propose to take.

I am not so sure that constraints actually exist on publishing the legal advice given the circumstances that we have here. However, the reassurance of clarity being given is welcome in view of the fact that such clarity has been absent to date.

Jamie McGrigor MSP asked:-

Will the legislation clarify the legal position on decrofting a croft that has been divided? The Crofting Commission say that people who own part of a croft cannot decroft in that part without the concurrence of the neighbours who own the remainder of what was the original croft.

Paul Wheelhouse MSP did not have an immediate answer to this question but the Minister promised to write a letter to Mr McGrigor to provide clarity on this point and undertook “to address the matter”. This is an area where the Crofting Commission may well be misinterpreting the legislation and, if not, another area where the 1993 Act is unlikely to be following the intent of Parliament. It would therefore be a folly not to tidy this up at the same time. The consequences of the Commission’s recent policy announcement will perhaps not be immediately clear but I believe will, through time, come back to haunt the Scottish Government if it is not dealt with effectively and decisively now.

When questioned by Claudia Beamish MSP on the question of people who have already been granted decrofting directions not having title to their property, Paul Wheelhouse MSP stated that “title is not affected for people in that position”. I would beg to differ on that point (I believe titles could arguably, in certain circumstances, be null and void) and do not believe the potential title consequences were thought through by the Commission when it decided that what it was doing was unlawful. However, in his earlier statement Paul Wheelhouse MSP said:-

There are also over 170 cases, in which the Commission had already granted approval to decroft, in good faith, before this problem came to light.

In the Government’s view, it is essential that their situation is addressed as part of the solution, and I hope Parliament will support that.

If the legislation retrospectively legitimises these particular decrofting directions then any potential title issues should also be resolved.

I have previously suggested that decrofting applications by owner-occupier crofters should be processed to the point of issue (but not issued) pending a solution to the situation being found. It was good to see Paul Wheelhouse MSP endorsing this view but it appears to be dependent upon the Crofting Commission agreeing to such a course of action rather than being directed to do so. Let’s hope that they at least see sense on that front. However, in response to a question from Jean Urquhart MSP it was suggested by Paul Wheelhouse MSP that owner-occupier crofters should “wait until there is clarity, following the amendment to the law”,  before lodging applications to decroft. If a decision is taken to process applications already lodged to the point of issuing a Decrofting Direction, but not actually issuing it until the remedial legislation is in place, then I can see no good reason for treating new applications any differently.

Tavish Scott MSP said (following the debate):-

I am very concerned that many crofters have little or no faith in the Commission.

They have an important regulatory role over crofting but their handling of this matter has brought real financial difficulties to many people.

So the Commission has a big task in re-establishing its credibility in the crofting counties.

Time will tell. In the meantime I will be following the passage of the new Bill with great interest and will, of course, provide my thoughts on it on the Crofting Law Blog.

Brian Inkster

Top Secret Crofting Law

Top secret crofting lawI requested the Crofting Commission to provide me with copies of the legal advice sought and obtained by them on the question of owner-occupied croft decrofting. They replied:-

“As you will be aware legal advice is exempt from disclosure under Section 36(1) of the Freedom of Information (Scotland) Act 2002 as legal professional privilege. We do not recognise that this is a qualified exemption and there can, in certain circumstances, be public interest arguments as to why legal advice should be released. In this case however we do not consider that the public interest outweighs legal confidentiality at this time, as both Ministers and officials are currently considering legislative remedies to resolve the situation.”

My request was to enable me to assist a crofter whose application to decroft has been put on hold by the Crofting Commission. The Crofting Commission has stated that such affected crofters should seek their own “independent legal advice as to possible remedies”. Yet the Crofting Commission are not explaining to crofting lawyers exactly how and why they have come to the conclusion that they have done on owner-occupied croft decrofting.

The Crofting Commission are expecting those affected by their decision and their advisers to operate in a vacuum where the rationale involved is an unknown quantity.

The legal advice obtained by the Crofting Commission relates to the interpretation of a very specific part of the Crofters (Scotland) Act 1993. It does not concern an actual situation or individual. It is not the subject matter of a dispute before the courts. Why then should it be privileged?

It does, however, affect (as Tavish Scott MSP pointed out in the recent debate at the Scottish Parliament arising from the motion by Jean Urquhart MSP to debate the role of Crofting in the Highlands & Islands) 3,000 owner-occupier crofters who may wish, at any time, to apply for a decrofting direction of the whole or part of their owner-occupied crofts.

Paul Wheelhouse MSP, has down played this statistic and considers instead the relevant one to be those only immediately affected, namely the 59 who have lodged decrofting applications that  have now been put on hold. However, the potential is there for it to affect many more especially the longer the saga is drawn out.

The recipients of the 179 decrofting directions granted since the new provisions contained in the Crofting Reform (Scotland) Act 2010 came into force should not be forgotten either. Surely if you accept the Crofting Commission’s argument that it does not have the power to grant those decrofting directions then they must be null and void. The knock on effect of this I have already looked at elsewhere, including the fact that title deeds could, in certain circumstances, also be null and void.

Anyway, the fact is that this does have widespread repercussions. There must also be a general public interest in the time and money being spent by public funded bodies (the Crofting Commission and the Scottish Government) on ruminating over, causing and resolving (if there was ever anything to resolve in the first place) the mess that has been created.

By publishing the legal advice crofting lawyers such as myself can assist the process by either putting forward legitimate arguments for why it may be wrong or endorsing it as correct. I have been contacted by several crofting lawyers in private practice who support my interpretation of the law. None have, so far, attempted to put forward a contrary view. I have asked the Crofting Commission to explain where I may have gone wrong in my interpretation. They have, so far, ignored the invitation to correct me.

I may well be wrong. If I and other crofting lawyers were given sight of the legal advice obtained by the Crofting Commission we may well see a point that I have been missing and concur with it. By keeping it top secret that opportunity will be lost.

Ultimately are we going to see much time and effort spent on emergency legislation that no one will ever know whether or not was necessary as the real reason for it will never be made public? Surely that cannot be in the public interest.

There is, in my opinion, no good reason for top secret crofting law unless, perhaps, you have something to hide.

Brian Inkster

The time is ripe for a crofting law blog

The time is ripe for a crofting law blogOver the past three weeks eleven crofting law related news items have been posted at inksters.com:-

Crofting Commission halts decrofting process for owner-occupier crofters

Alternative opinion on owner-occupier crofters’ right to apply for a decrofting direction

When (if ever) is an owner-occupied croft vacant?

Call on Crofting Commission to reverse decrofting decision

Inaction over decrofting debacle – what now for crofters?

Minister re-affirms position on decrofting

Decrofting debated on BBC Radio Shetland

Raasay highlights problems with external ownership in crofting communities

Pairc legal challenge rejected

Inksters and Scottish Crofting Federation launch crofting law helpline

Crofting Law in North and South Uist and Benbecula

Most of these (the first seven listed) relate to the decrofting debacle created by the Crofting Commission when they suddenly announced that they were no longer processing applications to decroft made by owner-occupier crofters. The Crofting Commission believes that it is illegal for them to do so based on an interpretation of the Crofters (Scotland) Act 1993 sought and obtained by them from their legal advisers. I have an alternative interpretation on that. I may not be correct. Crofting law is complex and often open to different interpretations. However, given that it is so complex, I do not believe that the Crofting Regulator should cease the work it has been doing, without question, to date and decree that the interpretation that it has obtained is the correct one. Surely that is the job of the Scottish Land Court and should follow on from an actual challenge of the procedures adopted by the Crofting Commission.

A week before the announcement on owner-occupied croft decrofting a more low key announcement was made on a change of policy by the Commission for decrofting and letting applications. This new policy is 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 policy announcement has been overshadowed by the owner-occupier crofter decrofting debacle. It is, however, also a significant matter that needs careful consideration as to the consequenses that the Crofting Commission have now unleashed on that front, again as a result of their particular interpretation of the law. We will no doubt look at this in detail in a specific blog post on the Crofting Law Blog.

The Crofting Commission is new, in that it was established on 1 April 2012 to take over the regulation of crofting from the Crofters Commission. For the first time it consists of six Commissioners elected by crofters with the other three Commissioners having been appointed by Scottish Ministers. Only one of the nine Commissioners served on the former Crofters Commission. They have been in power for less than a year and are already making their mark on the world of crofting law even although they have yet to publish their Plan (it has to date been seen in draft form only). Perhaps that should have come first before pulling apart the Crofters (Scotland) Act 1993.

Just before the decrofting debacle began we had the surprise decision by the Scottish Government not to renew the lease of sporting rights to the crofters of Raasay and grant it instead to a company from Ayrshire. This caused uproar and there was a sudden U-Turn by the Scottish Government.

Crofting law appears to be in turmoil in a way that has possibly not been seen since it was introduced in 1886. The time is surely ripe for a crofting law blog to air the issues arising in an open, clear and transparent way.

Brian Inkster