It 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