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:-
In drafting the bill, we have tried to reduce the scope for misinterpretation and disagreement. The provisions that relate to tenant crofters are reasonably stable and working fairly well, so there is no problem with them as they stand. The problem specifically relates to owner-occupier crofters. We have taken forward the measures as far as we can for owner-occupiers. There are some slight differences—we have taken steps to ensure that community right-to-buy provisions are not reflected for owner-occupiers, for example. However, in so far as we have been able to do so, the approach that we have taken is to keep things as similar as possible, to ensure that there is minimal scope for misinterpretation.
That means that the bill is longer than Sir Crispin Agnew and Derek Flyn, say, would have liked. However, length is not everything, and having a shorter bill is not necessarily the primary virtue; it is about trying to ensure clarity and minimising the risk that we could be challenged at some point in the future. I cannot give an absolute guarantee, but I hope that what we have done will minimise that risk.
But extra length does not necessarily ensure clarity or minimise the risk of future challenge. Indeed it could well (and I think in this case does) do the opposite. Prior to the Crofting Reform (Scotland) Act 2010 decrofting by owner-occupiers (which then included owner-occupier crofters) was linked to the same provisions for decrofting by tenant crofters. That worked well and without problem. It was tried and tested. The intention was for the 2010 Act to do the same thing for owner-occupier crofters. I believe it achieved that. Others believe not. Hence why we have the Crofting (Amendment) (Scotland) Bill. But there is no reason why that Bill needs to over complicate the fix. Aligning the fix with the existing provisions for tenant crofters is the obvious, logical and easiest way to do so. Instead the Scottish Government have attempted to mirror those provisions anew within a fresh set of provisions but at the same time have introduced new law into those with no real regard to the consequences of so doing.
I provided a simpler solution and Sir Crispin Agnew provided arguably an even simpler one. These have been ignored. Crofting law is a mess and it is about to get even messier.
Brian Inkster
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I’m no lawyer, but I’ve written quite a bit about the history of crofting and, once upon a time, I was the Scottish Crofters Union’s first director. My view, for what it’s worth, has long been that here needs to be an entirely fresh start to crofting regulation – one that begins with where crofting is now, and where it needs to be going, as opposed to forever adding new layers of complexity to the mass of crofting legislation going back to 1886. So what’s needed is a wholly new Crofting Act accompanied by the repeal of all existing legislation. Sure, there are risks for crofters in this. But there would be huge gains too from legislative and regulatory mechanisms that were fit for twenty-first century purposes – which the current mechanisms manifestly are not. This approach, of course, might mean less work for lawyers. But that would be no bad thing!