Tag Archives: Crofting (Amendment) (Scotland) Act 2013

The Year of The Crofting Law Sump

As 2015 draws to a close I am reproducing here an article I wrote for the Scottish Legal News Annual Review 2015. It looks at Crofting Law in 2014. Now a whole year ago I know. I have been asked to write another such review of 2015 which I will be doing shortly. That will appear in the Scottish Legal News Annual Review 2016.

The Crofting Law Sump was set up by the Crofting Law Group in 2013. The purpose of ‘the Sump’ was to gather together details of the significant problem areas within existing crofting legislation.

During passage through the Scottish Parliament of the Crofting (Amendment) (Scotland) Act 2013, MSPs were informed by practitioners who had been called to give evidence about the many problems in the existing legislation that were causing difficulties for crofters, landlords and others.

Paul Wheelhouse MSP, who was then Minister for Environment and Climate Change with responsibility for crofting, gave an undertaking that his officials would investigate, in consultation with stakeholders, what the best method might be for dealing with these outstanding issues.

The Sump was set up to assist the Government in this process. Administration was carried out by Derek Flyn, retired crofting lawyer, and Keith Graham, formerly Principal Clerk of the Scottish Land Court. 2014 saw much activity by them both collating the issues and problems that are causing difficulties, prioritising them and indicating how the problems can be resolved.

In May 2014 the Crofting Law Group held workshops in Inverness to look at the problem areas identified in the Collected Sump Report and provide feedback thereon. Following those workshops and a written consultation process the Commented Sump Report was produced. There was then feedback sought on the priority levels attributable to problem areas within that report. Further debate on the Sump took place at the Crofting Law Group Conference in Lochmaddy, North Uist in October. The Final Report of the Crofting Law Sump, highlighting 126 problem issues, was then presented to the Scottish Government on 10 December 2014.

2015 will be the year that we hopefully see what the Scottish Government plan to do to resolve all of the problem areas that have been identified.

Whilst the Sump was being contemplated the Scottish Land Court were making decisions that shaped or clarified the law. During the year Lord McGhie retired as Chairman of the Land Court and was succeeded by Sheriff Roderick John MacLeod QC who became Lord Minginish. Sheriff MacLeod had been the Deputy Chair of the Land Court since 2006.

Whilst there were a few interesting and important decisions of the Land Court in 2014 the crofting law year ended with a bang following their decision in MacGillivray v Crofting Commission (Application RN SLC/99/13 — decision of 18 December 2014).

That case concerned the Crofting Commission’s policy on decrofting where a croft unit is held in multiple ownership.

On 14 December 2012 Crofting Commissioners agreed to adopt a policy that all decrofting and letting applications in respect of crofts with multiple owners, must be submitted by all the owners, in their capacity collectively as the ‘landlord’ of the croft, even in those cases where the application related to a part of the croft held in title by only one of their number. This decision was based on legal advice obtained by the Commission but never published by them.

For the past two years many people have been affected by this policy decision and have been unable to decroft and thus develop land they own if a neighbour who happens to own part of the original croft unit is not willing to consent to the proposed development taking place. Mr & Mrs MacGillivray were in that very position. Their application to decroft land at North Ballachulish for house building had been rejected by the Crofting Commission because it did not have the consent of the landlord of that part of the original croft unit that remained in tenancy. Mr & Mrs MacGillivray referred the matter to the Scottish Land Court who decided that the Crofting Commission were wrong and it was competent for an owner of part of a croft to seek to decroft without requiring the consent of any other owners of the original croft unit. The Land Court took the view that the reference to a croft in the Crofting Acts applied equally to part of a croft.

The Land Court’s decision will have come as a relief to many who have been affected by the Crofting Commission’s policy. However, any hopes of an early resolution to their own predicaments have been dashed by the Crofting Commission lodging a request that a special case be stated on a question of law for the opinion of the Court of Session. It is now likely to be many months before a ruling is issued that will settle the matter once and for all.

Many crofting lawyers, including myself, have long held the view that the Crofting Commission’s policy was not a correct interpretation of the law. At the outset I called on this matter to be resolved before the Land Court by the Commission or action to be taken by the Scottish Government to do so. It is a pity that one affected party (there are many) has had to take the Crofting Commission to task over this whilst others have been left in limbo for over two years.

The Land Court’s decision was a clear, sensible and fair one. Even if the Court of Session ultimately were to take a different view, affected parties will continue to lobby the Scottish Government to amend crofting legislation to allow those who own croft land to be able to apply to decroft at their own instance. It is a problem that was highlighted in the final Sump Report as a priority one for the Scottish Government to tackle. They may, of course, not have to tackle it if the Court of Session agrees with the Land Court’s interpretation of the law.

N.B. Since this article was first published the Crofting Commission withdrew their request for a special case to be stated on a question of law for the opinion of the Court of Session. Therefore, the Land Court’s decision in MacGillivray v Crofting Commission (Application RN SLC/99/13 — decision of 18 December 2014) stands. See: Crofting Commission make a U-turn on Decrofting Appeal to the benefit of many owner-occupiers.

Download the Scottish Legal News Annual Review 2015 [via Calameo].

Brian Inkster

A New Solicitor for the Crofting Commission

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David Findlay – Crofting Commission Solicitor

David Findlay has been appointed as the Solicitor to the Crofting Commission.

David is from Perthshire (with roots in Lewis), and began his career in Stornoway as a trainee. He then moved to a Perthshire firm, before moving North again to join Macleod & MacCallum’s Rural Land Department. During his time at Macleod & MacCallum he specialised in crofting law, becoming accredited as a specialist by the Law Society of Scotland in 2013.

David will be part of the Commission’s Senior Management Team, comprising:-

Catriona Maclean, Chief Executive and Accountable Officer
John Toal – Head of Policy and Crofting Duties
Donna Smith – Head of Information Systems
Joseph Kerr – Head of Regulation
Jane Thomas – Head of Corporate and Customer Services

All Change

The regulatory body for crofting has been through a period of intense change.

The old Crofters Commission was abolished by the Crofting Reform (Scotland) Act 2010. The new Crofting Commission was formed in 2012, and comprised 3 appointed and 6 elected Commissioners.

The Commission’s former Chief Executive Nick Reiter retired in 2012, and Catriona Maclean is now in that post. Mr Reiter’s retirement was followed the next year by the resignation of Donnie Ross, Commissioner for Caithness, Orkney and East Highlands. Mr Ross was replaced by Marina Dennis, who had previously served as a Commissioner with the Crofters Commission.

Sandy Cross, an appointed Commissioner who was to specifically represent the interests of landlords, also resigned, in 2014. He has recently been replaced by David Campbell.

In addition, there have been several changes in the Commission’s legal agency since the early retirement of Donald Smith in 2010.

Is all Publicity Good Publicity?

The Commission have also been in the news (and in this blog) several times over the last few years, as a result of the stance they took on owner-occupiers decrofting – namely that the 2010 Act did not allow them to do so. This was tagged the #decroftingdebacle, and resulted in the Crofting (Amendment) (Scotland) Act 2013, which my colleague Brian Inkster considered to be wholly unnecessary.

The #decroftingdebacle was followed by the Commission’s policy to shackle together legally those who owned parts of a croft. The signature of each owner was required on an application to decroft or let, and that policy caused serious problems for many crofters.

The Commission will now change that policy, in light of the decision of the Scottish Land Court in MacGillivary v Crofting Commission (blogged by Brian: Crofting Commission make a U-turn on Decrofting Appeal to the benefit of many owner-occupiers).

The Commission and its staff must surely be looking forward to sailing in calmer waters ahead, and we wish them well in that.

Eilidh Ross MacLellan

Owner-Occupier Crofters

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Derek Flyn

This is a guest blog post by Derek Flyn who is a retired crofting lawyer and an administrator of the Crofting Law Sump. It was written by Derek on 23 October 2013 so reflects his thoughts on owner-occupier crofters as the law stood at that date.

For this article, it would be best that the reader has available to him a copy of the Crofters (Scotland) Act 1993 as amended by 2007 Act and by 2010 Act and by 2013 Act [PDF]. However it is necessary to discuss how some of the provisions of the 1993 Act came into being.

Whilst there appears to have been no mechanism specifically designed to keep track of the ownership of the estates of landlords in whole or in part, changes in occupation of crofts required to be recorded in the Register of Crofts. This was especially true of vacant crofts and section 16 of the 1955 Act, now section 23 of the 1993 Act, made provisions in respect of vacant crofts, somewhat unusually placing a burden on every crofting landlord. There was imposed on the landlord an obligation to inform the Commission about any croft that became vacant [1955 Act, s 16(1); now 1993 Act, s 23(1)]. Failure to do so was to be met by criminal sanction on summary conviction [1955 Act, s 16(10); now 1993 Act, s 23(2)].

Whilst launching the statutory purchase provisions for tenant crofters, the 1976 Act introduced a rather awkward subsection [1955 Act, s 16(14); now 1993 Act, s 23(12)] declaring that, for the avoidance of doubt section 23 has effect (and shall be deemed always to have had effect since 27th August 1961) as if (a) a person who has become the owner-occupier of a croft were required under subsection (1) above within one month of the date on which he became such owner-occupier to give notice thereof to the Commission; and (b) any reference in the section other than in subsection (1) above to a landlord included a reference to an owner-occupier”.

The effect was to treat any person who had become the owner-occupier of a croft like a landlord who has a vacant croft (although it is not clear how any sanction could be invoked, if ever it was). It was not necessary to define an owner-occupier by the extent of what he owned because the provision did not differentiate between a part croft and a whole croft [1955 Act, s 16(13) inserted by 1961 Act; now 1993 Act, s 23(11)].

Nor did it seek to differentiate between on the one hand a former tenant crofter who had purchased his own croft and continued to occupy it (or his nominee or successor or a later acquirer of his whole interest) and on the other hand a third party who acquired part of a croft intending to use it or occupy it himself.

These differences did not cause difficulties, because a croft was to be taken to be vacant notwithstanding it was occupied, if it was occupied otherwise than by the tenant of the croft [1955 Act, s 16(11); now 1993 Act, s 23(10) but amended in 2010] and that notwithstanding that the tenant crofter had an approved sub-tenant or had purchased the croft himself.

Any occupancy of a croft outwith an approved tenancy was conclusive that the croft was to be considered vacant. So a crofter who purchased his own croft (albeit encouraged by the 1976 Act to do so) was to be in the same position as the landlord of a vacant croft. This nonsensical approach (to any croft purchased by and which remained in the occupancy of its former tenant) was the source of much confusion and annoyance. Despite the opportunity afforded by the 1993 consolidation, no amendments of policy were to be admitted and no legislative attempt was made to sort it out.

It was not until the 2010 Act that there was statutory recognition that tenant crofters who purchased their croft were apt to continue to occupy their own crofts, and this some 34 years after the purchase provisions had been introduced. They were to be recognised as “owner-occupier crofters” and new sections 19B to 19D were inserted into the 1993 Act specifically to cover their now privileged position.

But all was not well.

Who then is an owner-occupier crofter?

The definition is found in section 19B(1) which provides that a person is an “owner-occupier crofter” if the conditions in subsections (2)-(4) are fulfilled:

THE FIRST CONDITION [Section 19B(2)]

The first condition is that the person is the owner of a croft.

The croft: The first problem is what constitutes a croft for this condition to have effect?

The croft needs to be wholly owned. The whole croft must be owned, identified as a unit. But what does this mean?

One obvious difficulty is that the 1976 purchase provisions did not require the crofter to purchase his whole croft but allowed purchase of part of the croft.

The whole croft would appear to mean, keeping in mind said purchase provisions, (1) the site of the dwellinghouse (if any) and (2) the croft land. Given the wording of the purchase provisions, can any restricted meaning of croft land be presumed? For example, does it mean that any apportionments must be owned if they are contiguous and adjacent to the remainder of the croft? One might think not since apportionments are now to have a temporary nature. But the Land Court in an appeal decision by the Full Court as recently as 26 September 2013¹ have opined that, “once granted, an apportionment effectively becomes part of a croft”. It is no help that section 13(3) indicates that, for the purchase provisions, “croft land” includes any land comprising any part of a common grazing that has been apportioned and is adjacent or contiguous to any other part of the croft or consists of arable machair.

Meanwhile, section 3(5) considers the situation where a crofter has acquired his entire croft other than any right in pasture or grazing land and any apportionment. Does such a crofter become an owner-occupier crofter? It seems doubtful that he should be expected to include in his acquisition any right in pasture or grazing land or any apportionment because there is a provision which deems any such unpurchased interest to be held in tenancy until held otherwise. A further provision goes on to deem that interest to be a croft. The Land Court has been “satisfied that the plain intention of sec 3(5) was to allow a grazing share or apportionment which had not been purchased, to be treated as a separate independent croft”². That being so the person, who now owns the entire croft stripped of that which was not acquired, must be “the owner of a croft”.

Of course, if a croft has been wholly acquired but any part has been conveyed away without decrofting taking place, the person is not the owner of the croft, only the remaining part.

The person: The second problem is the matter of plurality. There is nothing to suggest that the person must be a singular natural person.

It has been normal for a purchasing crofter to take his title in joint names, for instance himself and his spouse. If this is permitted, it seems that more than one person can be the owner-occupier crofter of a croft, but those persons must own the entire croft jointly and their title must be in their joint names.

Partial ownership: Persons who own only part of a croft are not considered to be owner-occupier crofters because they cannot satisfy the first condition. Accordingly, they must be regarded as landlords of part of a vacant croft. Situations like this may have arisen due to the transfer of ownership of parts of a croft on the (mistaken) assumption that the croft would be automatically divided.

It is the clear intention of the 1993 Act, that any division of a croft (whether by a tenant crofter or owner-occupier crofter) can only be effected following an application and subsequent affirmative decision of the Commission. Since 2010, an owner-occupier crofter may not transfer (whether or not for valuable consideration) ownership of any part of the owner-occupier’s croft without first dividing the croft into the part which the owner-occupier crofter proposes to transfer and the part which the owner-occupier crofter proposes to retain³. Any transfer of ownership of any part of an owner-occupied croft which is not a new croft created by a division under this section, and any deed purporting to transfer ownership of that part, is null and void⁴ and in such a case the Commission can declare the original croft vacant⁵.

THE SECOND CONDITION (Section 19B(3))

The second condition requires that the person (already identified as the owner of the croft):
(a) was the crofter of the croft at the time of acquiring it (or is such a tenant crofter’s successor in title);
(b) acquired title to the croft as the nominee of a crofter (or is such a nominee’s successor in title); or
(c) purchased the croft from the constituting landlord⁶ (or is such a purchaser’s successor in title).

As an aside it will be noted that in some cases acquisition of the landlord’s interest in the croft, where the tenant crofter nominates another person or persons to take title, has avoided the loss of his tenancy. But where that tenancy cannot be held to have continued beyond the date of acquisition, it seems that any person or persons who became the owner of the croft having received the landlord’s interest as nominee of the tenant crofter can claim to be the owner-occupier crofter.

THE THIRD CONDITION (Section 19B(4))

The third condition is that the croft has not been let at any time since it was acquired to any person as a tenant crofter either by an enforced letting of an owner-occupied croft by the Commission or otherwise.

If all the conditions are fulfilled, such a croft is identified as an owner-occupied croft and the properties of an owner-occupied croft therefore attach to the croft itself until it is again a let subject.

But although it is without a tenant, it is not to be taken as being vacant of it is occupied by an owner-occupier crofter. This is stated to be so by subsection 23(10) although it uses a roundabout way of doing so.

Owner-occupier crofters as a sub-set of owner occupiers

Owner occupiers have been recognised by the Crofting Acts since 1976, when they were required to tell the Commission⁷. The effect of the requirement is not altogether clear although it does say something along the lines that (a) a person who has become the owner-occupier of a croft is required within one month of the date on which he became such owner-occupier to give notice thereof to the Commission and (b) most references to a landlord are to include a reference to an owner-occupier.

But since 2010 this has been qualified by a new subsection 23(12A) which states that where the owner-occupier is an owner-occupier crofter, he must give notice of that fact to the Commission within one month of becoming such an owner-occupier crofter.

It seems that unless or until an owner-occupier crofter gives notice of the fact that he is an owner-occupier crofter, he will not be recognised as such by the Commission.

Not only that, any owner-occupier crofter (or indeed any owner occupier) will be guilty of an offence if he does not inform the Commission within one month of his becoming an owner-occupier crofter (or owner occupier).

If the reader is still with me, then I applaud his tenacity.

It was on Christmas Eve 2012 that I asked myself,
“If an owner-occupier crofter’s croft is not vacant, [subsection 23(10)] then, even if an owner-occupier crofter is to be taken as a landlord, [subsection 23(12A)] then how can subsection 24(3) apply when it reads “Where a croft is vacant, the Commission may, on the application of the landlord, direct that the croft shall cease to be a croft or refuse to grant the application”?

I then asked the Commission,
“On what authority does the Commission deal with an application from an owner-occupier crofter to decroft land?”

The answer is now history. The answer is to be found in the Crofting (Amendment) (Scotland) Act 2013.

Derek Flyn – 23 October 2013

Footnotes:-

Kennedy v Smith & Crofting Commission SLC/31/12 at [3]
Reference by Crofters Commission under Sec 53 Crofters (Scotland) Act 1993 SLC/121/11 at [23]
1993 Act, s 19D(1)
1993 Act, s 19D(6)
1993 Act, s 19D(7)
as defined in section 19B(6)
i.e. since s 16(4) was added to the 1955 Act by the 1976 Act, now s 23(12) of the 1993 Act

A pivotal year for Crofting Law

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This is an article that Brian Inkster wrote for the Scottish Legal News Annual Review 2014:-

2013 was certainly a year to remember in the world of crofting law. It started in February when the Crofting Commission issued a statement concerning decrofting applications made by owner-occupier crofters who occupy their crofts.

The Commission, having taken legal advice on the question of whether or not an owner-occupier crofter can decroft part or all of their croft, stated that they believed the amendments introduced by the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”) did not make provision for an owner-occupier crofter to decroft if he is occupying his croft.

Furthermore, the Commission stated that they had been advised that they would be acting outwith their statutory authority if they approved any application made to decroft, and that no further applications would be considered until a remedy was found, with applications at that time in process being placed in abeyance.

The implications of this were significant to say the least. The Crofting Commission were not only preventing owner-occupier crofters and connected third parties from building houses or carrying out other developments but they were in effect saying that decrofting directions already granted by them may be invalid. If such directions were invalid then, if title deeds had been granted in reliance of those directions, those title deeds would be null and void. This is because applications to divide an owner-occupied croft will not have been made prior to transfer (such applications not being necessary if the land was decrofted but necessary if the land was not decrofted). Banks who had granted mortgages in reliance of such decrofting directions were also exposed.

I looked at the legislation and simply could not see the problem perceived by the Crofting Commission. I published an opinion setting out why the existing legislation clearly provided for decrofting by owner-occupier crofters. To date that opinion has not been openly challenged and the Crofting Commission refused to publish their legal opinion (so no one knows the actual reasoning behind the Commission’s decision to halt processing decrofting applications).

Faced with differing legal opinion the Scottish Government decided to introduce a Crofting (Amendment) (Scotland) Bill and rush it through Parliament with all due haste. The Bill they drafted was, in my opinion, a sledge hammer to crack a nut with the potential to introduce even more unintended consequences into crofting law. I suggested and drafted a shorter version at 621 words rather than 1,700 words. I and the other crofting lawyers who put forward submissions were ignored. The Bill was enacted as originally drafted without any amendment whatsoever during the three stages that it very quickly passed through the Scottish Parliament. The Crofting (Amendment) (Scotland) Act 2013 become law on 31 July 2013 when it received Royal Assent.

The Scottish Government, during the passage of the Bill, continually sidestepped another fairly significant issue that was causing difficulty for many owner-occupiers who were not classed by the 2010 Act as owner-occupier crofters. Back in February the Crofting Commission had also published a statement on decrofting by owner-occupiers who were not owner-occupier crofters. Their view, having obtained legal advice, was that if an original croft unit had been split into different parts each owned by a separate owner-occupier then no one owner-occupier could decroft part of their own land without the consent and concurrence of the neighbouring owner-occupiers. The end result is that if you fall into this category and don’t want your neighbour developing land that they own you can simply prevent them from so doing.

A Scottish Government Official said that he hoped everybody would be able to work together at some point to recognise the benefits by concurring in decrofting applications. Tavish Scott MSP pointed out that “we do not live in a perfect world”. Time has shown that we don’t with several examples arising of owner-occupiers being prevented from developing their land.

This problem could easily have been cured by a minor provision within the Crofting (Amendment) (Scotland) Act 2013. The Scottish Government by ignoring the issue have allowed the problem to manifest itself as time goes on. They may well be forced to consider a further Crofting Amendment Bill to fix it.

During the passage of the latest Bill it became apparent to MSPs that much was wrong with Crofting Law. Many of these problems stem from the fact that the 2010 Act was the result of a Bill that had 230 amendments all dealt with at Stage 3 in less than 3 hours.

Alex Fergusson MSP said “The whole thing seems to me to be a bit like the Hydra—you cut off one head and two others appear. With crofting, we get rid of one problem and two others appear in its place.”

Paul Wheelhouse MSP, Minister for Environment and Climate Change with responsibility for crofting, gave an undertaking that his officials would investigate, in consultation with stakeholders, what the best method might be for dealing with these outstanding issues. That consultation is now on-going.

The Crofting Law Group set up a ‘Sump’ to assist the Government in this process. It is being administered by Derek Flyn, retired crofting lawyer, and Keith Graham, formerly Principal Clerk of the Scottish Land Court. They are collating the issues and problems that are causing difficulties, prioritising them and indicating how the problem can be resolved. Their Report will be made available to the Scottish Government on completion.

From 30^th November compulsory registration in the new Crofting Register, held by Registers of Scotland, was introduced for crofts if certain trigger events occur. The Crofting Register is a product of the 2010 Act and already it is being suggested that there may be unintended consequences arising from the drafting of the legislation. More fodder for the ‘Sump’!

2014 will be a pivotal year for crofting law with the publication of the ‘Sump’ Report and hopefully some indication from the Scottish Government as to what they intend doing to clear up the mess that the 2010 Act created.

Brian Inkster

The Crofting Law Sump

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The Crofting Law Group has announced details of its Crofting Law Sump. The purpose of ‘the Sump’ is to gather together details of the significant problem areas within existing crofting legislation.

During the recent passage through the Scottish Parliament of the Crofting (Amendment) (Scotland) Act 2013, MSPs were informed by practitioners who had been called to give evidence about the many problems in the existing legislation that were causing difficulties for crofters, landlords and others.

The Sump has been set up to assist the Government in this process. It will be administered by Derek Flyn, retired crofting lawyer, and Keith Graham, formerly Principal Clerk of the Scottish Land Court. They will collate the issues and problems that are causing difficulties, prioritise them and indicate how the problem can be resolved. Their Report will be made available to the Scottish Government on completion.

Brian Inkster, Hon. Secretary of the Crofting Law Group, said “this initiative will hopefully assist the Scottish Government in deciding what to do next with crofting law. It is a notoriously complex area of the law and with experts of the calibre and experience of Derek Flyn and Keith Graham the Report will be comprehensive, thorough and focussed.”

Submissions to the Crofting Law Sump will be taken up to the end of this year and should be sent by e-mail to sump@croftinglawgroup.org or can be tweeted to @croftinglawsump. Information concerning the Sump will be updated at www.croftinglawgroup.org.

Decrofting effective after Royal Assent

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Queen gives royal assent to Crofting (Amendment) (Scotland) Act 2013

We shall decroft

The Crofting (Amendment) (Scotland) Act 2013 become law on 31 July 2013 when it received Royal Assent. This will have come as a great relief to many owner-occupier crofters who were in decrofting limbo. What will also have been welcoming to those crofters was the speed at which the Crofting Commission, having halted the decrofting process, actually processed applications post 31 July with some decrofting directions being issued during the first week of August. With a 42 day appeal period that means that this coming week (assuming no appeals) many owner-occupier crofters will have effective decrofting directions for the first time since the Crofting Commission stopped accepting and processing applications on 25 February 2013 (i.e. 7 months later).

So relief for owner-occupier crofters but not yet for many owner-occupiers (who are not owner-occupier crofters) if they cannot get consent to decroft from neighbours who happen to be owners of part of what was the original croft unit. They will unfortunately remain in decrofting limbo. I have blogged previously on this blog about the inequity of this situation and will continue to do so in future blog posts.

Brian Inkster

[Photo Credit: The Queen at her Balmoral Estate in Scotland taken by Julian Calder]

Crofting Gobbledygook

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Will the Scottish Land Court have to decipher the Crofting (Amendment) (Scotland) Act 2013?

The Scottish Parliament has voted to pass the Crofting (Amendment) (Scotland) Bill. In due course, it will receive Royal Assent. Owner-occupier crofters will be able to decroft, and the Scottish Government will breathe a sigh of relief that the decrofting debacle has been buried. However, this bill has been far from the Scottish Government’s finest hour. The bill has added a further layer of complexity to a legislative framework I have previously, publicly, labelled a mess and a shambles. The Act will result in the Crofting Commission processing applications once again, but the decrofting provisions are now so incomprehensible that it can only be a matter of time before they are challenged in the Courts. Then we shall hear accusations that solicitors are getting fat on the ever-diminishing bank accounts of crofters. The time and effort taken by myself and by other professionals in this field indicate that we have an interest in clarifying legislation to avoid crofters facing high legal costs. Yet the Scottish Government saw fit to ignore all submissions and suggestions, however helpful they may have been. The quality and clarity of the Bill could have been far improved, had the Scottish Government accepted help from those best placed to provide it. Sooner or later, we will all simply stop responding to consultations and will have no heart to contribute to the parliamentary process.

Furthermore, this Bill has given birth to a fresh debate over wider crofting legislation. I have long been of the view that crofting legislation should be left alone for a time, to bed in, and to allow a body of case law to become established. However, in light of the 2013 Bill I have changed my view, and I have called for an overhaul of all crofting legislation. The numerous problems which have become apparent with the Crofting Reform (Scotland) Act 2010, coupled with the prospect of yet more impenetrable sections (when a few simple sections would have achieved the same effect), made me despair that the current framework could ever work. There are simply too many problems to overcome; the decrofting uncertainty was merely the tip of the iceberg. I do not suggest another evidence-gathering committee in the mould of Professor Shucksmith, but it is both possible and desirable to deconstruct the legislation and rebuild it so that it makes sense and is, to use a phrase so beloved of government, ‘fit for purpose’.

Rob Gibson MSP appeared to have taken offence at my labelling of the legislation as a “mess” and a “shambles” but I stand by my remarks, and I refute his comment that crofting law is merely “complex”. Most areas of law are complex, and solicitors are trained to operate in such an environment, but crofting law since the Crofting Reform (Scotland) Act 2010 – which his Government must take responsibility for and cannot be blamed on inheritance – has become incomprehensible, not merely complex. I urge Mr Gibson to listen to the suggestions offered by experienced professionals, rather than taking the defensive stance we saw in the debating chamber yesterday afternoon.

Eilidh I. M. Ross

How many owner-occupier crofters?

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Several posts on the Crofting Law Blog in recent times have concerned the number of owner-occupiers who are not owner occupier crofters:-

But what about the number of owner-occupier crofters? The Crofting (Amendment) (Scotland) Bill, after all, affects them and has nothing whatsoever to do with owner-occupiers who are not owner-occupier crofters. The Scottish Parliament seems keen to get to the bottom of exactly how many owner-occupiers exist but, on the face of it, they are happy to accept a fairly wild estimate as to the number of owner-occupier crofters in existence. The two are surely linked. Increase one and you decrease the other and vice versa as we saw in ‘What happened to the six non owner-occupier crofters?‘. So if the Scottish Government is able to refine and clarify the number of owner-occupiers (even if it is taking them some time to do so) can they not also do the same with owner-occupier crofters?

Throughout the progress of the Crofting (Amendment) (Scotland) Bill the best estimate we seem to have, in the evidence given to the Scottish Parliament, is 3,000 to 4,000 owner-occupier crofters. So we have a possible margin of error of 1,000 or 25%.

If the actual number is say 3,000 does this add 1,000 to the number of owner-occupiers who are not owner-occupier crofters? Thus could that figure be 1,808 rather than 808?

I hope this point can be clarified before we have a Crofting (Amendment) (Scotland) Act 2013 so that we know how many crofters are actually affected by that Act.

Brian Inkster

An Alternative Crofting (Amendment) (Scotland) Bill

5 Replies

Submissions (Part 2) by Brian Inkster on the Crofting (Amendment) (Scotland) Bill

Following on from my earlier submissions on the Crofting (Amendment) (Scotland) Bill (“the Bill”), I have drafted an alternative bill that deals with my main concerns, namely:-

The over complex nature of the drafting of the Bill and the fact that a new set of provisions have been created to deal with decrofting by owner-occupier crofters rather than simply linking such decrofting in with the existing provisions contained in section 24(3) of the Crofters (Scotland) Act 1993.
The introduction of what is arguably new law that has no place in a bill which has the sole purpose of fixing flaws in the existing law created by the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”)
The omission to deal with the problems associated with applications to decroft by owner-occupiers as opposed to owner-occupier crofters.

This exercise shows that crofting law can be amended in a relatively simplistic way to achieve the outcomes sought. In so doing it renders obsolete the transitory provisions and the complicated table of modifications contained in the Bill. By making it more digestible it minimises the possibility of error caused by an over complex approach to the problem at hand. It reduces the length of the Bill from 1700 words to 621 words whilst still introducing new provisions to deal with the problems associated with applications to decroft by owner-occupier crofters. It probably could have been shortened even further by simplifying what is now clause 3 (appeals against certain decisions) of my alternative bill. However, I decided to simply maintain the drafting contained in the Bill as this particular clause may never be used and has, in any event, a very short life and limited effect.

I would suggest that the Scottish Parliament should seriously consider the approach taken by me as one to adopt. Here it is:-

An Alternative

Crofting (Amendment) (Scotland) Bill

An Act of the Scottish Parliament to allow decrofting by owner-occupier crofters and by owner-occupiers; and for connected purposes.

1. Applications to decroft by owner-occupier crofters and by owner-occupiers

(1) The Crofters (Scotland) Act 1993 (c.44)(the “1993 Act”) is amended as follows.

(2) After subsection 23(10) insert-

“23(10A) Notwithstanding the terms of subsection (10) above an owner-occupied croft will always be vacant for the purposes of decrofting under section 24(3) and can be declared vacant for the purposes of section 25(3).”

(3) After subsection 23(12A) insert-

“23(12B) An owner-occupier who is not an owner-occupier crofter and who owns a distinct part of a croft (as opposed to a pro-indiviso share of a croft) shall be entitled to apply for a direction under section 24(3) without the requirement for an owner-occupier or an owner-occupier crofter of the remainder or any other part of the croft to concur in that application.”

2. Retrospective effect and application

(1) All applications made or purported to be made by an owner-occupier crofter under section 24(3) of the 1993 Act and directions granted or purported to be granted by the Commission under section 24(3) of the 1993 Act to such an owner-occupier crofter from 1 October 2011 until the coming into force of this Act are valid and enforceable.

(2) All applications made or purported to be made by an owner-occupier (who is not an owner-occupier crofter or a pro-indiviso owner of a croft) under section 24(3) of the 1993 Act, without the concurrence of any other owner-occupier or owner-occupier crofter, and directions granted or purported to be granted by the Commission under section 24(3) of the 1993 Act to such an owner-occupier from 1 October 2011 until the coming into force of this Act are valid and enforceable.

(3) In this section, the “Commission” and “croft” and “owner-occupier crofter” have the meanings given in the 1993 Act.

3. Appeals against certain decisions

(1) In the case of a decision of a kind mentioned in subsection (2), section 52A of the 1993 Act applies with the modification that, in subsection (2)(b), for “the Commission dispose of the application” there is substituted “the coming into force of the Crofting (Amendment) (Scotland) Act 2013”.

(2) The decision referred to in subsection (1) is one purported to have been made—

(a) by the Commission under section 24(3) of the 1993 Act,

(b) on an application of a kind mentioned in subsection (3),

(3) The application referred to in subsection (2)(b) is one purported to have been made-

(a) by an owner-occupier crofter under section 24(3) of the 1993 Act,

(b) during the period from 1 October 2011 until the coming into force of this Act.

(4) In the case of a direction of a kind mentioned in subsection (5), section 25(8) of the 1993 Act applies with the modification that, in paragraph (a), for “the giving of public notification of the making of the direction” there is substituted “the coming into force of the Crofting (Amendment) (Scotland) Act 2013”.

(5) The direction referred to in subsection (4) is one—

(a) purported to have been given—

(i) by the Commission under section 24(3) of the 1993 Act,

(ii) on an application of a kind mentioned in subsection (3),

(b) in respect of which the Commission gave public notification during the period from 14 January 2013 until 25 February 2013.

(6) In this section, the “Commission” and “owner-occupier crofter” have the meaning given by the 1993 Act.

4. Commencement

This Act comes into force on the day of Royal Assent.

5. Short Title

The short title of this Act is the Crofting (Amendment) (Scotland) Act 2013