Tag Archives: Paul Wheelhouse MSP

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]

Decrofting Spin

Decrofting SpinPoliticians are good at spinning. No exception when it comes to crofting law.

At the evidence gathering session on the Crofting (Amendment) (Scotland) Bill by the Rural Affairs, Climate Change and Environment Committee on 22 May, Paul Wheelhouse MSP stated:-

The existing legislation clearly does not work as it was intended to do. Although some crofting lawyers, such as Brian Inkster, disagree, the concern that I have expressed is shared by others including Sir Crispin Agnew and Derek Flyn. The Commission’s legal advice appears to have drawn the same conclusion.

Not quite correct. As blogged about previously on this blog at the evidence gathering session by the same Committee on 15 May, Sir Crispin Agnew QC said:-

I think that the Bill will solve the particular problem by making it clear that the Crofting Commission can decroft owner-occupier crofts. Brian Inkster might well be right but Derek Flyn might well be right that he is wrong. Until a case has gone to the Land Court and it has made a determination, it is sensible to clarify the situation for the avoidance of doubt.

Sir Crispin did not therefore pass any opinion on whether the existing legislation worked as it was intended to do. He remained neutral on that point but was of the view that given the confusion surrounding the issue it was sensible to clarify it by way of amending legislation. On that point Sir Crispin, Derek Flyn and I are all in agreement. The challenge for Paul Wheelhouse is to deliver such amending legislation that does indeed work without leaving any further confusion. Let’s hope he concentrates on that and not on the spin.

Brian Inkster

[Picture Credit: Rainbow Humming Spinning Top from PoshTotty Designs]

700 owner-occupiers of croft land to be left in limbo

700 owner-occupiers who own croft land left in limboAt the evidence gathering session for the Crofting (Amendment) (Scotland) Bill of the Rural Affairs, Climate Change and Environment Committee on 22 May the Convenor, Rob Gibson MSP, asked:-

I have a small point about Richard Frew’s answer to my question at last week’s meeting about the number of multiple owners of crofts. When I asked whether he had a ballpark figure, he said: “I am not aware of the exact figures, but I am sure that the Commission has a list of the different types of crofter.”

Can we take that answer any further just now?

I have already given my views on that response by Richard Frew at Crofting is not a perfect world

Paul Wheelhouse MSP said:-

I will ask Joe Kerr to comment on that. He is on secondment from the Commission, so he may be more closely involved with the issue.

Joseph Kerr gave the answer we have all been waiting for:-

An exercise was undertaken that looked at the different status of people in the crofting elections. In terms of multiple ownership, I understand that the figure was around 700, and that the ballpark figure for owner-occupier crofters was between 3,000 and 4,000.

So there we have it. There are 700 owner-occupiers compared to say 3,500 owner-occupier crofters. Thus, due to the interpretation put on the Crofting Reform (Scotland) Act 2010 by the Crofting Commission, one sixth of owner-occupiers (if for present purposes we take it that owner-occupier crofters are a sub-set of owner-occupiers) potentially cannot decroft land they own. Furthermore, they still will not be able to following the enactment of the Crofting (Amendment) (Scotland) Bill which, as currently drafted, addresses only decrofting by owner-occupier crofters and not decrofting by owner-occupiers who are not owner-occupier crofters. One-sixth is surely a fairly significant proportion to simply ignore? There is, of course, an argument that if only one person could not decroft due to a flaw in the existing legislation that flaw should be fixed so that one person was not discriminated against compared with the other 4,199 people who could decroft.

Crofting (Amendment) (Scotland) Bill: A Sledge Hammer to Crack a Nut

Crofting (Amendment) (Scotland) Bill in Marrakech

A Surface, Cloud Technology and Mint Tea enable submissions on the Bill from Marrakech to Edinburgh

The Scottish Government decided to publish the Crofting (Amendment) (Scotland) Bill, and have a one week consultation period on it, all to coincide exactly with my one week holiday in Marrakech. I reluctantly packed the Bill as holiday reading. My wife, understandably, was not too amused by this turn of events. Crofting Law Bills don’t come along very often I assured her. Whereas, we can always have another holiday. Although, there may well be a spate of Crofting Law Bills to come in the wake of this latest one. Anyway, a good part of my ‘holiday’ was taken up considering the Bill albeit in warmer climes than the Crofting Counties. This resulted in three sets of submissions by me to the Rural Affairs, Climate Change and Environment Committee. The first of these is as follows:-

Submissions (Part 1) by Brian Inkster on the Crofting (Amendment) (Scotland) Bill

I would initially point out that I have, from the outset, been somewhat sceptical as to the need for the Crofting (Amendment) (Scotland) Bill (“the Bill”) as I believe that the existing law can be interpreted in such a way to allow owner-occupier croft decrofting (Vacant and ready, Journal of the Law Society of Scotland, March 2013).

I have also been vocal in expressing the opinion that the legal advice sought and obtained by the Crofting Commission on this subject should be made public (Top Secret Crofting Law, Crofting Law Blog).

To date crofting lawyers have had to operate in a vacuum over this issue as in the absence of sight of the legal opinion on what exactly the ‘flaw’ is in the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”) it is difficult to know what is being amended by the Bill and why.

On 28 March 2013, when Paul Wheelhouse MSP, Minister for Environment and Climate Change, announced in the Scottish Parliament that the Bill would be introduced after the Easter recess, Rhoda Grant MSP asked whether the Government would “publish its legal advice, so that solicitors can properly advise clients”. Paul Wheelhouse responded:-

 As far as legal advice is concerned, I am sure that Rhoda Grant knows the constraints 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 had hoped that such clarity and the rationale would appear in the Explanatory Notes to the Bill. Unfortunately, not a lot on this area is actually there to add to the scant information that was previously made available. In particular no mention is made of the interaction between section 23(12A) of the Crofters (Scotland) Act 1993 (“the 1993 Act”) and section 23(1) of the 1993 Act and their relationship with section 23(10) and/or section 24(3) of the 1993 Act. This is something I have specifically asked the Crofting Commission to address in correspondence but they have simply ignored me and not responded on this point. I can only assume that they do not actually know what the position is.

With section 23(12A) of the 1993 Act being amended but not removed by the Bill some explanation as to the purpose and intent of that section, as it now stands, would be useful. If the purpose of that section (as I saw it) was to deem an owner-occupied croft to be vacant but it did not in fact do so (if the legal advice sought and obtained by the Crofting Commission, which has not been disclosed, actually covers this point) then what is the continuing purpose of the said section 23(12A) when the Bill becomes an Act?

Paragraph 5 of the Explanatory Notes to the Bill acknowledge that prior to the introduction of the 2010 Act “owner-occupiers” could apply to decroft under section 24(3) of the 1993 Act and we are told to “see section 23(12) of that Act”. Section 23(12A) was introduced by the 2010 Act to the 1993 Act to extend the same provisions to “owner-occupier crofters”. However, no mention of this or the reason why the said section 23(12A) does not actually do this is given.

Paragraph 6 of the Explanatory Notes to the Bill states that:-

For the purposes of the decrofting provisions of the 1993 Act, section 23(10) was amended by the 2010 Act to provide that a croft is not vacant if it is occupied by the owner-occupier crofter.

That statement is not quite correct and is possibly misleading. The clause in question says that:-


a croft shall be taken to be vacant notwithstanding that it is occupied, if it is occupied otherwise than by
 the owner-occupier crofter of the croft

That does not mean (in my opinion) that an owner-occupied croft can never be vacant and that other provisions of the 1993 Act cannot make such a croft vacant for the purposes of decrofting.

If, however, that interpretation can be put on the said section 23(10) and this is the ‘flaw’ that Paul Whellhouse has been referring to then is there not a simpler way to amend the legislation rather than the rather convoluted way it has been presented in the Bill? Would it not be the case of simply having one clause (say a new section 23(10A) to the 1993 Act) along the following lines:-

Notwithstanding the terms of subsection (10) above an owner-occupied croft will always be vacant for the purposes of decrofting under section 24(3).

This one sentence could in effect replace the proposed new sections 24A, 24B, 24C and 24D to the 1993 Act (section 1(2) of the Bill) and make the reading and understanding of it so much easier.

Paragraph 6 of the Explanatory Notes to the Bill goes on to state:-

Other owner-occupiers of crofts, who were not owner-occupier crofters were unaffected and they could still, and still can, apply to decroft as if they were landlords of vacant crofts.

This is another potentially incorrect and misleading statement. The Crofting Commission issued on 18 February 2013 the following statement:-

Decrofting and Letting applications where a croft is owned by more than one person

There was uncertainty in situations where the owners hold separate title to distinct parts of a croft, whether an application to decroft or let could be:

  • Made separately by an individual owner in respect of the distinct part of the croft they own, or
  • If such an application has to be made by all the owners of the croft in their capacity as, collectively, the ‘landlord’ of that croft.

The Crofting Commission took the view that it was essential to have clear policy on this issue. The Commission therefore, in order to clarify the situation, sought and obtained legal opinion on the practice of accepting applications submitted by only one of the croft owners where the croft is held in multiple separate ownership ‘parcels’.

The matter was discussed at their Board meeting on 14 December 2012 and 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.

Any application received in future from one of the owners, where a croft is held in multiple ownership, will be considered invalid and returned on the basis that the application was not submitted by the landlord of the croft.

It is submitted that this was not the intention of the 2010 Act (i.e. to change the position of owner-occupiers as opposed to owner-occupier crofters in respect of the right of an owner-occupier to decroft land belonging to them). In effect if there are several owner-occupiers of distinct parts of what was originally one croft why should one of those owner-occupiers require the consent of the other owner-occupiers to decroft land that only they own. The policy introduced by the Crofting Commission means that one neighbouring owner-occupier can in effect prevent another from decrofting. Thus, contrary to what the Explanatory Notes to the Bill state, owner-occupiers of crofts, who are not owner-occupier crofters, are affected and cannot (in certain circumstances) apply to decroft as if they were landlords of vacant crofts.

My own view is that the Crofting Commission may have got it wrong again and that decrofting by owner-occupiers is, as it always has been, fully covered by section 23(12) of the 1993 Act. This was not altered in any way by the 2010 Act. However, if the Crofting Commission are correct then the Scottish Government needs to do something about it at the same time as fixing the ‘flaw’ for owner-occupier crofters. It would be inequitable to treat the two differently. Furthermore, if the Crofting Commission are correct then it follows that decrofting directions granted by them to owner-occupiers after 1 October 2011 (possibly arguably before that date) and 18 February 2013 could be invalid. The Scottish Government would need to seek to remedy that situation retrospectively as it has done in the Bill in respect of owner-occupier crofters. Not doing so leaves owner-occupiers and their lenders exposed in a similar way as owner-occupier crofters and their lenders currently find themselves pending the Bill becoming an Act.

Jamie McGrigor MSP asked, in the Scottish Parliament, on 28 March 2013:-

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 letter was not written until 10 May 2013 (the day after the Bill was introduced). It reads:-

Dear Jamie

Thank you for your e-mail of 9 May 2013 seeking the clarification that I undertook to write, after my statement to Parliament on 28 March 2013 on decrofting by owner-occupier crofters, on the issue of “divided” crofts. I am extremely sorry that it has not been possible to provide a much earlier response.

The issue you raised relates to situations where a croft has a number of owners, rather than where a croft has been divided through regulatory application to the Crofting Commission. In that latter situation, a croft would have essentially become two, or more, crofts with a separate identifiable tenant or owner-occupier for each. In such a situation, a tenant would be able to apply to decroft and the Bill to be introduced is designed to empower an owner-occupier crofter to also be able to apply to decroft.

In instances of joint ownership of a croft that has not been formally divided, the Crofting Commission decided, at its Board meeting on 14 December 2012, that in order to regulate crofting properly and ensure the integrity of the crofting unit, an application to decroft should be from the landlord of a croft. As it has been relayed to me the Crofting Commission took legal advice, and based upon that advice has concluded that where a number of individuals own different parts of a croft, which has not been formally divided by the Commission, they together constitute the “landlord” of the croft for regulatory purposes.

As such, an application in respect of an undivided croft affects a number of persons who, taken together, are the “landlord”. In order to properly consider an application relating to such an undivided croft, the Commission feels it necessary, on legal advice it received, to seek the views of all the joint owners of the croft.

I hope this is helpful.

PAUL WHEELHOUSE

Unfortunately, Paul Whelhouse avoids the actual question asked by Jamie McGrigor and simply sets out the Crofting Commission’s policy which was already known. Reference by Paul Wheelhouse to “divided” crofts requires some greater understanding and explanation. It was only by the 2010 Act (section 34 which introduced inter alia a new section 19D to the 1993 Act) that an owner-occupier crofter was, for the first time, compelled to seek the consent of the Commission to divide their croft. Prior to this new provision coming into force no such consent was required.

I do not believe that it could have been the intention of the Scottish Parliament to create two separate types of divided crofts with different rules applying to each. There is no good reason why pre-2010 Act ‘divided’ crofts should be treated differently from post-2010 Act ‘divided’ crofts.

As a result of the Crofting Commission’s legal interpretation of the position, and as already stated previously by me above, decrofting directions already granted by the Crofting Commission to owner-occupiers (as opposed to the newly defined owner-occupier crofters) could be invalid. Furthermore, the Crofting Commission are now effectively preventing owner-occupier decrofting  in circumstances where they believe a neighbour’s consent may be required (something that the 2010 Act and previous crofting legislation certainly does not spell out).

The focus of the Bill is resolving ambiguities created by the 2010 Act in connection with decrofting but this has been specifically limited by the Scottish Government to ‘owner-occupier crofters’. It is completely inequitable not to include ‘owner-occupiers’ in this focus as they are, in certain circumstances, also being prevented from decrofting land that they own. The tweaks required to the Bill (especially if a simplified drafting approach was taken) to resolve this anomaly would be minor and I would urge the Scottish Government to actually consider the potential problem at hand and the consequences of doing nothing about it.

I have already stated that the Bill could be condensed dramatically in size and complexity by a more straightforward and simple approach to the drafting of it. Arguably, what has been created is a sledge hammer to crack a nut. Crofting Law is complex at the best of times. The Scottish Government should be seeking where possible to make it easier to understand and thus avoid the need for amending legislation due to the different interpretations that can be given to complexly drafted provisions.

If, however, the will of the Scottish Parliament is to stick with the unnecessarily complex approach I would comment on the clauses in the Bill, as currently drafted, as follows:-

Clause 1(2) – inserting 24A

There is no definition of “decrofting direction” in section 61 of the 1993 Act. Should we have a definition distinctly for owner-occupier crofters and not one for others who can legitimately seek a ‘decrofting direction’? Again good reason for linking owner-occupied croft decrofting with the existing  decrofting provisions rather than creating new ones.

Clause 1(2) – inserting 24B

Reference is made in the new section 24B(2) to section 26J of the 1993 Act. However, I believe there to be a possible flaw in the 2010 Act (yes another one) in that there is no link between section 26J and section 19C of the 1993 Act. This could cause general problems for the Crofting Commission in any event and specific ones with regard to the Bill now linking a further clause to a section in the 1993 Act that possibly makes no sense in the first place.

Clause 1(2) – inserting 24C

The proposed new section 24C to the 1993 Act is a very contrived provision. The simplified approach to drafting already suggested would dispense with the need for this. The alternative is to set out in full the provisions that apply rather than chopping and changing the existing section 25 of the 1993 Act.

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.

With regard to the proposed new section 24C(3) to the 1993 Act there should be nothing to prevent the legislation declaring the croft to be vacant notwithstanding the terms of section 23(10) of the 1993 Act. Why create two classes of possible outcome i.e. vacancy or revocation rather than just the one?

Clause 1(2) – inserting 24D

A simplified drafting approach to the Bill would avoid the need for the proposed section 24D to the 1993 Act with reliance being given to the existing section 24(3) of the 1993 Act.

I am unsure whether the proposed new section 24D(3) to the 1993 Act reflects existing legislation in the 2010 Act in respect of existing decrofting procedures. I have been unable to readily locate such provisions and there is no indication of the position in the Explanatory Notes to the Bill. If it does, then fair enough, although again linking the new legislation to the existing provisions would be preferable to stand alone clauses. If it does not then the Bill is no place for new law for reasons already given above in respect of the proposed new section 24C(2) to the 1993 Act.

Clause 2

A simplified approach to the drafting would avoid the need for most, perhaps even all, of the proposed consequential modifications in the Schedule to the Bill as referred to in clause 2 of the Bill.

Clause 3

It is good to see retrospective effect and application in the Bill given that the Crofting Commission’s staff were telling potentially affected parties that they had nothing to worry about because previously granted decrofting directions were granted in good faith and so would be valid. However, as one commentator on the Crofting Law Blog has pointed out the drafting of clause 3 could be clearer:-

That’s the sort of Sir Humphrey Appleby nonsense that gives the law and legislative process a bad name. Go ahead with this short bill in these terms now to correct the problem in the short term (so long as they’re SURE that gobbledygook actually does correct it) but only on the strict understanding a comprehensible bill to consolidate crofting legislation will be introduced asap.

[Neil King commenting on Crofting (Amendment) (Scotland) Bill Published at the Crofting Law Blog]

I would tend to agree and would have thought that a simple statement along the following lines would have sufficed:-

All decrofting directions granted by and applications made to the Commission in respect of applications to decroft made by owner-occupier crofters from 1 October 2011 until the coming into force of this Act are valid and enforceable.

Clauses 4, 5, 6 and 7

I have no particular comments to make on clauses 4, 5, 6 and 7 of the Bill.

Other Problems with the 2010 Act

There are other problems created by the 2010 Act which I will not go into in any great detail here but merely highlight:-

  • The 2010 Act did not provide for the purchase of a tenanted croft being a trigger that induces first registration in the Crofting Register.
  • Many issues and conflicts were created regarding owner-occupier crofters when compared with owner-occupiers (some have been referred to in these submissions but others exist that also      require a resolution).
  • No equivalent of sections 5(3)-(6) of the 1993 Act was provided for owner-occupier crofters creating difficulties for developments proposed on owner-occupied crofts and in particular wind farm developments.

There is a need for legislation to resolve these issues. It is appreciated that the Bill may not be the place to do so given the need for that particular legislation to be progressed with all due haste. However, the Scottish Government should give a commitment to introduce a further bill dealing with all of the other anomalies created by the 2010 Act as soon as possible following the Summer Recess.

Summary

My views on the Bill can be summarised as follows:-

  • The Bill as drafted is a sledge hammer to crack a nut and could be simplified in its drafting to a huge extent.
  • There appears to be attempts to introduce new law via the Bill. That should not be the purpose of the Bill which is to fix ‘flaws’ in the existing legislation created by the 2010 Act.
  • The problems associated with decrofting by owner-occupiers (as opposed to owner-occupier crofters) should also be addressed in the Bill.
  • A commitment should be given by the Scottish Government to introduce a Bill following the Summer Recess to deal with the various other anomalies in crofting law created by the 2010 Act.

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