At the Stage 2 Debate on the Crofting (Amendment) (Scotland) Bill, on 12th June, Alex Fergusson MSP asked:-

Given the issues that have been raised by Sir Crispin Agnew, in particular, about some parts of the bill not matching up with others, if I can use such loose terminology, why have you not seen fit to lodge amendments to address his concerns?

Paul Wheelhouse MSP, Minister for Environment and Climate Change, responded:-

We are aware that there are a number of alternative views about the form and content of the bill, as was discussed during the stage 1 debate. We are aware of those views and respect the opinions of Sir Crispin Agnew and Derek Flyn and others, including Brian Inkster, but we believe that the bill provides the necessary clarity and legal certainty that the owner-occupier crofters and other stakeholders are looking for to allow them to decroft their land. The commission will have the power to consider such applications after the bill is enacted.

The Scottish Government considered the detailed drafting issues that were raised; I can promise the committee that we have gone over them in some detail. However, as it is drafted, the bill achieves its purpose. A number of key witnesses to the committee, such as Sir Crispin Agnew, and the Crofting Commission, through David Balharry and Derek Flyn, all agreed that the bill delivers on the purpose that the Government has set out of giving owner-occupiers the ability to decroft.

The Scottish Government is committed to drafting in as plain and accessible a manner as is consistent with achieving the necessary outcome. We all know that crofting law is horrendously complicated: that message came across loud and clear at last week’s debate, and I do not disagree with that conclusion, which was reached by many members. As I said during the stage 1 debate, the key issue is that the provisions in the bill, in its current form, are as close as we could get them to the provisions for tenant crofters. That will enable us to deliver similar treatment, which we all want. I cannot prejudge what the committee will say, but the nature of the debate so far seems to indicate that we want to give owner-occupiers provisions that are similar to those for tenant crofters where appropriate. Obviously, some aspects, especially on land tenure and right to buy, had to be modified, but we are talking about the general provisions. In order to do that, we have kept as close as possible to the original wording of the provisions for tenant crofters.

The bill has therefore taken a particular form. I appreciate that some people are concerned that it could have been simpler, but then there might have been more room for doubt that the provisions were meant to be the same as those for tenant crofters. By taking the view that we have, we have managed to minimise that possibility. I hope that that answers Mr Fergusson’s question.

Alex Fergusson responded:-

It does, and in much more detail than I was expecting; I thank you for that. I just want to clarify that my reason for raising the point was not to question the purpose of the bill or its likely outcome but to look for confirmation, which I think you have given me, that you looked at the technical drafting points that were raised by Sir Crispin Agnew, which were not really questioning the outcome of the bill but questioning whether separate parts of the bill worked together in a way that goes beyond my ken. You have told me clearly that you have looked at all that and are satisfied with the way in which the bill is drafted, and I am quite happy to accept that. It is good to have that on the record.

The position stated by Paul Wheelhouse at Stage 2 is really much the same as when he gave evidence to the Rural Affairs, Climate Change and Environment Committee back on 22nd May (see: length is not everything). But by now we have really moved away from the debate on length. It is clear that the Scottish Government has no intention of rewriting the Bill in more simplistic terms (that is probably too much like hard work in the short time frame available to ensure that the Bill becomes an Act).

However, many of the comments made by Sir Crispin Agnew QC, Derek Flyn, myself and others related to the detail of the Bill in its current form and small tweaks to that necessary to avoid confusion, problems and, in at least one case, to close a loophole that the Scottish Government had inadvertently opened. All of this appears to have been sidestepped. If the Scottish Government did indeed consider “the detailed drafting issues that were raised” and went “over them in some detail” would it not have been good (perhaps essential) to have seen a detailed written rebuttal of each with reasons why the Scottish Government thought the expert crofting law views on each to be of no apparent value? Without that how easy is it for MSPs to easily consider the matter given the complexity of crofting law that they are all ready to acknowledge? They simply have to accept the Minister’s word for it as Alex Fergusson did. But at least he did get it on record and that just might come back to haunt the Minister.

At the Stage 1 Debate comments were made of the fact that the Scottish Government were benefitting from free legal advice from crofting law experts and should be taking advantage of that. As Graeme Dey MSP put it:-

Sir Crispin Agnew offered helpful advice on wording, and it is not often that a learned QC offers advice gratis.

Jamie McGrigor MSP said:-

I am not a lawyer or a legal expert so, like the committee, I can only urge ministers to take on board and address the concerns that have been expressed by eminent figures such as Sir Crispin Agnew QC and Brian Inkster. Ministers should, if required, lodge amendments to the bill at stage 2 so that we do not find ourselves having to enact yet another amendment bill in a few months or years. We must try to avoid that at all costs.

This was a sentiment expressed in the debating chamber by many of the MSPs who spoke at the Stage 1 Debate. However, we are now approaching Stage 3 and the Bill remains as originally drafted by the Scottish Government and it looks likely that it will be enacted as so drafted.

20 crofting lawyers in a room together thought that amendments were required to the Bill. But clearly the Scottish Government knows best and the views of the legal practitioners who know and deal with the legislation on a regular and detailed basis is of no real concern.

Those lawyers will be the ones picking up the pieces and arguing before the Scottish Land Court, in the fullness of time, about any problems and unintended consequences that may have been created by the Scottish Government.

Jamie McGrigor also said:-

Not long ago, I attended a meeting of crofting lawyers in the Signet library, at which an eminent lawyer assured the brethren there that there would be much work for them in crofting law for the foreseeable future. I am beginning to understand why he said that.

The crofting lawyers in question have actively tried to reduce that workload by seeking to assist the Scottish Government in the drafting process. However, the Scottish Government in rejecting that assistance appears content to increase the workload those lawyers will have by adding to the complexity of crofting law. So be it for now.

However, the lawyers are not about to give up offering their help (although perhaps, some might argue, they should simply leave the Government to it). The Crofting Law Group will be at the Signet Library again on 27th September 2013 for their annual Crofting Law Conference in association with the WS Society. The theme of this year’s Conference is to be Crofting Reform. It is to be hoped that the Scottish Government will take that opportunity to engage with crofting lawyers and participate in the Conference for the benefit of both organisations and ultimately, hopefully, for the benefit of crofting tenants, owner-occupier crofters, owner-occupiers (who are not owner-occupier crofters), landlords and others affected by crofting law. I will blog more about the Conference once the programme for it has been finalised.

Brian Inkster 

[Photo Credit: 1984: Virgin Films]