Tag Archives: Crofting (Amendment No. 2) (Scotland) Bill

808 not 700 owner-occupiers who are not owner-occupier crofters

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808 owner-occupiers who are not owner-occupier croftersAt the stage 1 debate on the Crofting (Amendment) (Scotland) Bill on 6 June 2013 the following exchange took place between Rob Gibson MSP and Paul Wheelhouse MSP, Minister for Environment and Climate Change (with responsibility for crofting):-

Rob Gibson asked:-

How many people are in this multiple owner situation and how many are caught up in these decrofting problems? Does that, too, conform to the 80:20 principle?

Paul Wheelhouse responded:-

Estimates of the numbers involved vary. To pick up Alex Fergusson’s earlier point, I believe that there are between 3,000 and 4,000 owner-occupier crofter crofts and know that the figure of 700 has been bandied about for crofts in multiple ownership. We believe that the actual figure might be slightly higher, at 808, but if it will assist, we can clarify the exact number for the committee and members as we move towards stage 2. The issue is another that falls outwith the scope of the bill but which we recognise needs to be addressed, and I hope that members whose constituents are affected will note that. The bill deliberately has a tight focus to address a key issue and our view is that, unfortunately, any deviation to cover such a substantive issue would not necessarily respect the expedited procedure that is being applied to the bill, on which there is clearly a consensus to address the existing decrofting issue.

The figure of 700 was not really bandied about as such. It was an unknown figure when the question was first asked of the Scottish Government on 15th May and one that was supplied at a later date (22nd May) by an official from the Crofting Commission. One would have thought, at the time, that this would therefore have been a fairly accurate and reliable figure. However, as we have seen it is a moving target as the Crofting Commission check and reduce the number of owner-occupier crofters thus increasing the number of owner-occupiers who are not owner-occupier crofters. Paul Wheelhouse recognises that 808 may not be the exact number and this has still to be clarified. It is amazing that we are now so many weeks down the line and such clarity has still to be given.

Paul Wheelhouse did not answer the second part of Rob Gibson’s question, i.e how many owner-occupiers (who are not owner-occupier crofters) are caught up in decrofting problems. Rob Gibson had asked the same question on 22nd May and at that time Paul Wheelhouse said:-

I am happy to try and establish, after the meeting, whether there are any statistics that would give us an idea about how many crofters might be affected. I apologise that I do not have the numbers in front of me now.

This, I would suggest, is a more important figure to be clarified than the total number of owner-occupiers in existence. Perhaps MSPs need to press for an answer on this question at the final debate on the Crofting (Amendment) (Scotland) Bill on Tuesday 25th June. It has been dodged by the Minister at least twice now during the passage of the Bill. It may not be directly relevant to the Bill as the Bill does not deal with those decrofting problems. But it might highlight the real need for a swift Crofting (Amendment No. 2) (Scotland) Bill to resolve the plight of the owner-occupiers, not to mention the ‘aliens‘, who still will not be able to decroft once the first of those two Bills becomes an Act.

There was also an implication by Paul Wheelhouse that this is a new decrofting issue. It should be remembered that the decrofting problem faced by owner-occupiers actually pre-dates the one faced by owner-occupier crofters albeit by 7 days.

Brian Inkster

6 out of 10 to the Rural Affairs, Climate Change and Environment Committee

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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]