In our last post we told you about the launch of ‘A Practical Guide to Crofting Law’ by Brian Inkster. You can now watch a video about the launch of this new crofting law book:-
You can read more about the book and buy it online directly from the publisher with a special new publication discount (which will apply for only a short period of time) via croftinglawbook.com
Brian Inkster holding his new crofting law book
A new book on crofting law was launched this past week at a reception held in the main law library of the Royal Faculty of Procurators in Glasgow.
‘A Practical Guide to Crofting Law’ has been written by crofting law expert Brian Inkster.
The book is an introduction to crofting law for those with an interest in it or who may touch upon it. Whether that is lawyers, law students, land agents, crofters, landlords or anyone else with an interest in crofting law.
The book covers the main issues briefly and concisely, aiming to highlight the complexity of crofting law and the pitfalls and traps that await the uninitiated. The aim is that readers will, as a result, be better versed in the basics of crofting law.
Welcoming the publication of the book Patrick Krause, Chief Executive of the Scottish Crofting Federation, said:
This is a book that has been awaited since crofting law was formed, a book that lays out what the, notoriously difficult to navigate, ‘sea of legislation’ is about.
Andrew McCornick, President, NFU Scotland, said:
Brian Inkster is to be congratulated on unravelling the complexities of crofting law into a practical guide that is comprehensive and yet can be easily understood. I am sure this will prove to be a very useful guide to current crofters and those with an interest in crofting.
Katy Dickson, Former Head of Policy, Scottish Land & Estates said:
Brian’s book is an accessible overview of a complex legal specialism which would be a useful addition to the shelf of anyone involved in crofting.
Tavish Scott MSP, Co-Convener of the Scottish Parliament Cross-Party Group on Crofting, said:
This is an extremely helpful guide to crofting law which will help all who have to navigate the Byzantine routes through the law of the land.
Sir Crispin Agnew of Lochnaw Bt QC, Chairman of the Crofting Law Group, said:
Brian’s new book is an invaluable practical guide to demystify crofting law.
The book has been published by Law Brief Publishing. It can be ordered online with a special new publication discount (which will apply for only a short period of time) via croftinglawbook.com
Mairi Gougeon
Hot on the heals of Fergus Ewing MSP being reappointed yesterday as Cabinet Secretary for Rural Economy it was announced today that First Minister, Nicola Sturgeon, had nominated Mairi Gougeon for the new role of Minister for Rural Affairs and the Natural Environment. As such she will report jointly to Rural Economy Secretary Fergus Ewing and Environment Secretary Roseanna Cunningham.
Being SNP MSP for Angus North and Mearns (well outwith the Crofting Counties) I am unsure how familiar Mairi Gougeon will be with crofting law. However, as my law firm, Inksters, has an office in Forfar, within her constituency, I will be more than happy to meet her there (or indeed in Edinburgh) to fill her in on the complexities of crofting law and what reforms are required.
Fergus Ewing MSP
First Minister Nicola Sturgeon today appointed a new, refreshed Scottish Government Cabinet.
Thankfully, at a critical stage in the planned reform of crofting law, she did not shuffle Fergus Ewing MSP away from his post as Cabinet Secretary for Rural Economy with responsibility for crofting. Connectivity has however been moved away from his portfolio and is now with Michael Matheson as Cabinet Secretary for Transport, Infrastructure and Connectivity. Thus Fergus Ewing’s title changes from Cabinet Secretary for the Rural Economy and Connectivity to Cabinet Secretary for Rural Economy.
Fergus Ewing was in post during the difficult times surrounding the common grazings crisis. He has had many meetings with crofting stakeholder groups regarding the need for crofting law reform arising primarily from matters identified in ‘The Crofting Law Sump Report‘. His recent announcement about a two phased approach to crofting law reform was widely welcomed. He understands the problems at hand and what needs to be done to resolve them. It would have been a huge mistake not to allow him to oversee the introduction of the next crofting reform bill.
Inksters are back again at the Royal Highland Show this year.
As usual we are sharing a stand on 4th Avenue with the Scottish Crofting Federation and Registers of Scotland (Crofting Register).
Today Brian Inkster was on the stand answering queries, amongst others, from new entrants about finding and securing a croft and from established tenant crofters about the procedures to purchase a croft.
On Friday Martin Minton will be on hand to answer crofting law queries and on Saturday Vicki Macleod Folan will be.
Visitors can hear from the Scottish Crofting Federation about the benefits of joining the Federation and the various services that the Federation provide to its members.
The team from Registers of Scotland can tell you all you need to know about registering your croft in the Crofting Register.
Not forgetting, of course, that Inky the sheep is back and you can get your photo taken with our prize winning sheep.
If you are at the show do come along and say hello at 4th avenue. We are just across from the big red double decker bus (Vintage Bus Bar) and the dining area in front of it.
Ready, steady… MSPs didn’t have long to get through 230 crofting law amendments!
In my post yesterday, about the two phase approach being taken to crofting law reform by the Scottish Government, I made reference to the rush over the Crofting Reform (Scotland) Act 2010.
I thought it would be worthwhile to remind readers about that rush which in effect took place at Stage 3 of the Bill going through the Scottish Parliament. In that final stage of parliamentary procedure there were around 230 amendments dealt with in around three hours.
At the commencement of the debate the Presiding Officer stated:-
The first division will be a 30-second division, following a five-minute suspension. Thereafter, there will be a voting period of one minute for the first division after a debate and the voting period for all other divisions will be 30 seconds. We are incredibly tight for time, so, to begin with, I ask no speaker to speak for more than one minute.
It is little wonder that we are having to revisit crofting legislation given the potential lack of scrutiny that these 230 last minute amendments might have received in the very limited amount of time allowed to debate them.
Furthermore the rush to get these amendments through saw an opposition amendment being passed without the objections thereto being noted! The chaos surrounding this in the debating chamber at Holyrood was well documented at the time by Scott Wortley on the Edinburgh University Scots Law News Blog: The Crofting Reform (Scotland) Bill and the curious incident of the unopposed opposition amendment.
Back in November 2016 when Fergus Ewing MSP met with the Cross-Party Group on Crofting at Holyrood he stressed the importance of taking time to get crofting reform right. The two phased approach recently announced by him reinforces that.
Let’s hope that we do not see a repeat of the 2010 fiasco when the next crofting reform bill reaches stage 3 debate at the Scottish Parliament. It looks as though Mr Ewing, as Cabinet Secretary for the Rural Economy and Connectivity, will be doing his very best to avoid that.
Fergus Ewing MSP
The Scottish Government’s plans for legislative reform of crofting were first outlined to the Cross-Party Group on Crofting on 28 March 2018 by Fergus Ewing MSP, Cabinet Secretary for the Rural Economy and Connectivity with responsibility for crofting.
Following on from that meeting Mr Ewing has stated:-
This government is determined not to allow crofting to be simply a relic of our past: crofting must have a purpose and a role in our present and our future.
That purpose is to support people to remain on the land and to bring people back to the land, with crofting also playing a role in creating a sustainable and productive environment in which people can live and work. To achieve this, crofting needs an effective regulatory and statutory framework.
Yet, most agree that current crofting legislation is complex and lacking in transparency, having been developed on a ‘piecemeal’ basis over nearly 150 years. We have recently completed a public consultation on what might usefully be changed through legislative reform.
The consultation was launched last August, seeking views from stakeholders on (amongst other things) the Scottish Government’s Crofting Policy, the potential form that new crofting legislation could take, and priorities for legislative change. During the three month consultation period, my officials held a series of 21 meetings with the public and interested stakeholder groups, hearing directly from over 300 individuals across the crofting counties.
The consultation closed in late November last year with 122 responses from individuals and organisations. The responses were independently analysed and a report on that analysis was published in mid-March. The results made for interesting reading and the diversity of responses only highlighted the scale of the challenge ahead.
After careful consideration, there does not appear to be a consensus that would allow me to decide on specific pieces of legislative reform. I was also presented with a dilemma over deciding the best legislative approach to take, as the analysis highlighted almost equal proportions of support for new crofting legislation, versus making changes to existing legislation and restating or consolidating the law.
Following the publication of the analysis report I met with the Cross-Party Group on Crofting to outline how I wish to take matters forward and to hear members and MSPs’ views. I am proposing a two-phase approach to legislative reform, with a first phase in the shorter term, leading to a Bill in this parliamentary session. This first phase will focus on delivering changes which carry widespread support, including across the Scottish Parliament, and result in practical everyday improvements to the lives of crofters and/or streamline procedures that crofters are required to follow. I am keen to fully involve and engage MSPs with crofting interests to ensure that their ideas and proposals can be considered and taken forward in legislation.
The second phase is longer term work, where I have asked my officials to continue with fundamentally reviewing crofting legislation to provide a solution to some of the more complex and challenging issues facing crofting, and what that might mean for how legislation is developed in future. This work will begin now but will be for a future Parliament to deliver.
I’m also keen to use non-legislative means to make changes that help to improve the sustainability of crofting, and encourage new entrants. These will include a National Development Plan for crofting, and a new entrant’s scheme that will directly benefit crofters without the need to wait for legislative change. It is also not just within crofting that I see opportunities to enhance provision – I am keen to encourage more woodland crofts through the National Forest Estate and to ensure that crofting communities benefit from our ambitions for a low carbon economy, and commitment to provide all homes and businesses with access to superfast broadband.
The approach I am taking forward is pragmatic and focused on delivering a future for crofting in 21st Century Scotland My approach seeks to support people to make lives on the land, to diversify to create sustainable livelihoods, and to collaborate with neighbours and communities to find common solutions. That approach is as important to supporting crofting more generally as it is to reforming its statutory frameworks.
The Crofting Commission stated:-
The Crofting Commission look forward to working with Scottish Government and other Stakeholders to take forward crofting legislation reform. The practical approach outlined by the Cabinet Secretary will enable the necessary improvements of phase one to be made in this Parliamentary Session, with more complex issues being held over to a second phase.
In particular the Commission welcome the opportunity to work with the Scottish Government in developing a New Entrants Scheme for crofting and to discuss a future promotional role for the Commission itself.
Rod Mackenzie, Convener of the Crofting Commission, said: “We support the Scottish Government’s decision to take a collaborative approach to rectifying and improving crofting legislation during this Parliament. The Commission will play a full part in this, and will be particularly keen to consider with others what improvements can be made to the law on registration and on common grazings, among other key issues.”
The Scottish Crofting Federation (SCF) also supported the Scottish Government’s proposals. Their chair, Russell Smith, said:-
We are pleased that the Cabinet Secretary has announced a positive way forward for crofting law and restated his commitment to non-legislative changes also. He promised that we will have a bill in this parliamentary session which corrects the major anomalies in the current law and so enables it to work appropriately for crofters. This is the essential course of action needed and will pave the way to a consolidation bill in the next session. It is exactly what SCF hoped for.
There will also be a fundamental review running in parallel which may enable more far-reaching changes to crofting law, whilst maintaining crofters’ rights, in the future. This is very good news for crofting. The Cabinet Secretary asked for input to the bill and the SCF are delighted to contribute.
My view
This seems an eminently sensible way for the Scottish Government to take legislative reform forward. They have recognised the complexities involved and that all that needs to be sorted probably can’t be easily sorted in just one parliamentary term.
Thus splitting reform over two parliamentary terms should allow a comprehensive and considered approach to crofting reform unlike the rushed approach that led to the Crofting Reform (Scotland) Act 2010. That rushed approach created many of the problems requiring to be resolved today.
The Consultation on the Future of Crofting Legislation received responses up until 20 November 2017. An analysis of the responses was published on 21 March 2018 and Fergus Ewing MSP, Cabinet Secretary for the Rural Economy and Connectivity with responsibility for crofting, outlined the Scottish Government’s plans for legislative reform to the Cross-Party Group on Crofting on 28 March 2018.
I will come back on this blog to look in more detail at the analysis and Government plans. In the meantime I thought I should publish here my own personal response to the Consultation.
Current Scottish Government crofting policy may be stated as:
The Scottish Government values crofting as a form of land tenure and recognises
the added contribution that crofting continues to make to the rural economy and the
sustainability of rural and remote rural communities.The Scottish Government is committed to reforming crofting to secure its future,
bring new blood into crofting communities, and ensure it can continue to contribute to
the development of a thriving rural Scotland.This policy is reflected in the current legislative framework which places a number of
duties on crofters, including the duty to reside within 32 km of the croft; cultivate the
croft, or put the croft to another purposeful use; and not misuse or neglect the croft.
These duties serve to maintain the integrity of rural communities in the Highlands
and Islands.
Question 1: Do you agree with the stated Scottish Government policy on crofting?
Answer 1: No strong views on the question of policy but will refer to it when commenting on the ‘Clean Sheet’ approach to legislative reform below.
Question 2: Please select your preferred option to indicate which you believe to be the most suitable way to proceed with any crofting law reform. Should you wish to suggest another approach that has not been discussed above, then please select ‘other’ and provide details.
The options given were:-
Option 1 – Consolidation Bill
Option 2 – Bill amending existing legislation / Pre-Consolidation Bill
Option 3 – Bill amending existing legislation and restating crofting law
Option 4 – Bill setting out ‘new’ crofting law
Answer 2: Option 2.
The Scottish Government has already given a commitment to legislative change. Option 1 will not achieve that and arguably should not have been an option at all.
The Scottish Government’s Crofting Policy “is reflected in the current legislative framework” and thus there would appear no merit in pursuing a ‘Clean Sheet’ approach when current legislation and policy coincide. There is also a danger that pursuing a ‘Clean Sheet’ approach will result in much debate and little ability to actually fix the problems identified in ‘The Sump’ Report within this Parliamentary term. Thus Option 4 should be discounted.
It would appear that Option 3 may result in less problem areas being tackled than Option 2. Consolidation does not need to happen at the same time as amendments to the law and should not be pursued at the same time if that is going to reduce the number of amendments involved to existing law.
Thus Option 2 is really the only sensible one for the Scottish Government to pursue.
Questions 3 – 9 asked various questions on (1) Absenteeism, Misuse and Neglect; (2) Assignation and Succession; (3) Common Grazings; (4) Crofting Commission Regulatory Functions and Processes; (5) Crofting Registration; (6) Owner-occupier Crofts; and (7) Standard Securities.
Question 10 asked for those seven issues to be listed in order of priority: ‘higher priority’ first to ‘lower priority’ last.
Rather than answering those questions individually, or providing a priority list, I decided to deal with that as part and parcel of my answer to question 11 and simply referred the Scottish Government to that particular answer.
Question 11: Please tell us any other thoughts you have about the proposed Crofting Legislation reform not covered in your earlier answers.
I have not answered questions 3 to 10 as I consider my views on these matters to be covered by ‘The Sump’ Report (November 2014) [PDF] and the Proposals put forward by the Scottish Government’s Crofting Legislation Stakeholder Consultation Group (10 February 2015) [PDF]. These documents prioritise matters but ultimately are of the view that all (not some) of the problem areas identified should be tackled and fixed by the Scottish Government. A new Bill under Option 2 should set out to do just that.
My views on Standard Securities are contained in an article entitled “Is it Time for a Crofting Mortgage Bill?” originally published by The Firm Online on 31 May 2010 and subsequently reproduced in The Crofting Law Group Newsletter. Those views have not changed with the passage of time.
Those were my responses. You can view 97 of the 122 submitted responses (N.B. 97 of those 122 respondents gave consent to publish their responses) via this Scottish Government link: https://consult.gov.scot/agriculture-and-rural-communities/crofting-consultation-2017/consultation/published_select_respondent.
In future blog posts I will look at the analysis of those responses and the Scottish Government’s plans in light of that analysis. I will also publish on this blog my views on Standard Securities from 2010 as ‘The Firm Online’, where those views were originally published, is no longer online.
On 28 August 2017 the Scottish Government launched its consultation document [PDF] on the future of Crofting Legislation seeking views on both the form of the legislation and the priorities for change within it.
Launching the document, Fergus Ewing, the Cabinet Secretary for Rural Economy and Connectivity said:
Crofting delivers valuable local benefits and a successful crofting sector helps our rural communities to thrive. It is therefore vital the law that governs it is fit for purpose.
Initial discussions have shown while there is plenty of agreement that the current law needs to change, there are many views on what should replace it.
I would strongly encourage anyone with an interest in the future of crofting – whether crofters, landowners, those living in a crofting communities or in other parts of Scotland – to take part in this consultation and help us improve future legislation.
The Scottish Crofting Federation (SCF) welcomed the Scottish Government’s commitment to continue the process of reforming crofting legislation within this parliamentary session.
Russell Smith, Chair of the SCF, said:-
This is another stage in the long process of crofting law reform and we are pleased that the Scottish Government is taking this forward. Following the 1993 consolidation act there have been several amendments to crofting legislation but this is still unfinished business. The addition of subsequent layers of legislation, and the fact that amendments have introduced further inconsistencies and errors, has rendered current crofting law difficult to access and, in some aspects, unusable.
This consultation is seeking views on the most suitable way to proceed with any crofting law reform and how it might be improved. It opens up opportunities to take a fresh look at crofting legislation and its purpose. At this point we may ask what crofting legislation should achieve and how best it can do this.
It is widely agreed that the law does need to be reformed further and there are suggested a range of options for taking this forward but neither of the two extremes of merely consolidating with little change or starting all over again with a ‘clean sheet’ are going to achieve a desirable result. So, we are being asked to choose between the workable options of amending and then consolidating the law or ‘restating’ it. The consultation document helpfully explains the difference.
Whilst exploring ways to make the legislation fit for purpose we must not lose sight of the fact that crofting legislation was formed to protect crofters’ rights, not to serve lawyers, this principle is inviolable. The crofting act is the heart of crofting and has evolved over 130 years, adapting to work for crofting in a changing world. This is another time of change, but the basic principles of protection must not be lost.
The SCF will be looking at these options in considerable detail and will be both seeking our members’ views and providing information for them. We encourage all crofters, and others with an interest, to attend the events the Scottish Government will be hosting and to respond to the consultation before it closes.
Scottish Government Officials will be holding a number of public meetings where they will deliver a presentation on the purpose of the consultation, an explanation of the options for changing legislation and an overview on how to respond to the consultation. There will be the opportunity to discuss the options available and to raise questions relating to the consultation.
The first such meeting takes place in Lerwick on 13 September with further meetings already scheduled for Oban (19 September), Kirkwall (26 September), Portree (3 October), Fort William (4 October), Glenuig (5 October), Kinlochbervie (10 October), Lairg (11 October) and Gairloch (12 October). More dates and locations will be announced in due course. A full list of the events, which will be updated regularly, may be found on Eventbrite where you may also register your attendance.
The consultation can be completed on Citizen Space or in printed form by contacting your local RPID Area Office. Copies of the Consultation Document will also be available at the public meetings or by contacting The Scottish Government, The Crofting Bill Team D Spur, Saughton House, Broomhouse Drive, Edinburgh EH11 3XG.
The consultation will last 12 weeks and will close at 00:00 on 20 November 2017. Any questions may also be directed to croftingconsultation@gov.scot
It has been suggested that this blog is a good barometer for how well or badly the Crofting Commission are doing. This, we have been told, can be measured by the number of blog posts appearing about the Commission. The more posts there are the worse they are doing: the less posts there are the better they are doing.
Blog posts certainly petered off after the last Crofting Commission elections and the appointment of a new Convener. The Crofting Commission have done nothing since then of controversy that we are aware of. The days of the common clearances, convenergate, SRDPgate, VATgate and Broragate appear, thankfully, to be behind us. So there is, as a result, less to blog about. The new Crofting Commissioners certainly appear to be doing much better than there predecessors.
So, yes, this blog as a Crofting Commission Barometer is not a bad analogy.
There have, however, been events in the world of crofting law that we do need to catch up on.
There are also some issues arising from the tenure of the last set of Crofting Commissioners that we didn’t manage to blog about at the time and, for completeness, will try to fill in when we get the chance.
Keep an eye on the Crofting Law Blog for these updates.