Tag Archives: Crofting (Amendment) Scotland Bill

No let up on the Common Clearances crisis whilst on holiday!

No let up in the Common Clearances whilst in Morocco

Could I really escape the presence of the Crofting Commission in Morocco?

I have been in Morocco on holiday for the past couple of weeks. The run up to getting away and being away has meant a lull in reporting by me on The Common Clearances.

The last time I was in Morocco coincided exactly with the Scottish Government’s one week consultation period on the Crofting (Amendment) (Scotland) Bill. A bill that arose from the Decrofting Debacle unnecessarily and unjustifiably created by the Crofting Commission. Notice a theme?

I spent that week writing detailed submissions and drafting a better (in my view) bill for the Scottish Government and submitting it to them from Marrakech. A civil servant was to later tell me that my intervention was unhelpful. No doubt the same view is taken in the corridors of Saughton House and Great Glen House over my comments on The Common Clearances.

But it has been said that we provide a clear and understandable source of information at the Crofting Law Blog, something that you cannot get from the Crofting Commission (see ‘A Happy Crofter‘).

I decided, this holiday in Morocco, to actually have a holiday. Now I am back a quick look at the internet tells me there has been no let up in the Common Clearances crisis. As far as I can glean, so far, since I last blogged:-

The Crofting Commission held a meeting in Lewis with shareholders of the Mangersta Common Grazings which was chaired by Commissioner William Swann but “marred by a menacing presence” in that the Convener of the Crofting Commission, Colin Kennedy, turned up unexpectedly to observe proceedings despite having declared a conflict of interest.
Members of the ousted Upper Coll Grazings Committee applied for an interim interdict against the appointment of the Grazings Constable at Inverness Sheriff Court and that was refused.
John Finnie MSP has asked questions about the situation in the Scottish Parliament which have been answered in a fairly neutral manner by Cabinet Minister Fergus Ewing MSP.
Further parliamentary questions have been asked by John Finnie MSP and Rhoda Grant MSP about the issue with answers anticipated to be given by Fergus Ewing MSP on 23 June 2016.
Patrick Krause, Chief Executive of the Scottish Crofting federation, has written about ‘The Spirit of the Law – The inexplicable case of a public body confusing legal dogma with good sense’.
It was reported on Radio nan Gàidheal that another grazings committee has been put out of office by the Crofting Commission, this time on the Scottish mainland.
It was also reported by Radio nan Gàidheal that a grazings committee in South Uist has put themselves out of office to avoid any difficulties that may be encountered with being regulated by the Crofting Commission.
Commissioner William Swann has resigned from the Crofting Commission.
Propaganda about ‘the role of grazings committees in representing shareholders’ has been published by the Crofting Commission.
The former and ousted Convener of the Crofting Commission, Susan Walker, has written in the West Highland Free Press about the situation.
The Upper Coll Grazing Constable (illegally appointed in my view) has issued a letter to the press.

I will try to catch up on all of these developments on this blog in some detail, and share my thoughts on each, over the coming weeks. Do let me know if I have missed anything.

I also have to tell you on this blog about Inksters’ new and enhanced crofting law team (you may have read about that elsewhere before now).

So keep an eye on the Crofting Law Blog over the next few weeks for, as the ‘Happy Crofter‘ put it, an “invaluable source of information that [is] virtually impossible to find anywhere else”.

Brian Inkster

Update – 13 June 2016: The Crofting Law A-Team

Update – 14 June 2016: ‘A Menacing Presence’

Update – 15 June 2016: Common Grazings and the Spirit of the Law

Update – 16 June 2016: Crofting Commissioner Resigns over situation the Scottish Government and Crofting Commission need to sort out

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

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

Stage 3 Debate on the Crofting (Amendment) (Scotland) Bill

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As indicated in my last post the Crofting (Amendment) (Scotland) Bill was passed today. Prior to the decision to pass the Bill the Stage 3 Debate on the Bill took place in the Scottish Parliament. Here is the BBC video of that debate:-

Brian Inkster

Crofting (Amendment) (Scotland) Bill is passed

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The Crofting (Amendment) (Scotland) Bill was passed by the Scottish Parliament today. The official press release from the Scottish Government reads:-

Decrofting legislation to tackle the difficulties owner-occupier crofters are facing when applying to decroft their land has been passed by the Scottish Parliament.

Decrofting land can enable a house to be built on the land and facilitate croft land being passed from one generation to the next. It was the intention of the Scottish Government and the Scottish Parliament that tenant and owner-occupier crofters be treated similarly under the Crofting Reform (Scotland) Act 2010.

The issue came to light recently that owner-occupier crofters were unable to apply to the Crofting Commission to decroft land and the Scottish Government brought forward a bill to amend existing legislation.

The Environment and Climate Change Minister Paul Wheelhouse said:

“The Scottish Government has been working extremely hard with the Scottish Parliament, the Crofting Commission and other stakeholders to resolve these issues as quickly as possible.

“I hope the legislation passed by the Scottish Parliament today offers owner-occupier crofters, lenders and others the reassurance that action has been taken and decrofting of land can continue, where it has no negative impact on crofting as a whole.

“I gave an undertaking to this Parliament during Stage 1 of the Bill that my officials will investigate, in consultation with stakeholders, what the best method might be for dealing with the outstanding issues. Stakeholders should therefore expect contact from my officials to arrange a discussion on the next steps for crofting.

“I would like to thank members for the cross-party support this Bill has received as the Parliament worked together to resolve this issue.

It is good to see the Bill passed and the decrofting problems faced by owner-occupier crofters hopefully now behind them. It is, however, a pity that the Bill was not simplified somewhat in its drafting rather than remaining a sledge hammer to crack a nut. It is also a pity that issues raised about it by crofting law experts were not properly addressed during the passage of the Bill through the Scottish Parliament. But the conclusion I came to in my last blog post was that the Scottish Government knows best about crofting law.

Let us hope that we see a different approach from the Scottish Government when they engage with stakeholders to discuss the “next steps for crofting” as Paul Wheelhouse said, again, today that they would be doing.

Brian Inkster

The Scottish Government knows best about Crofting Law

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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]

Length is not everything

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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

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

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

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At 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

What happened to the six non owner-occupier crofters?

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At the stage 1 debate on the Crofting (Amendment) (Scotland) Bill on 6 June 2013 Paul Wheelhouse MSP, Minister for Environment and Climate Change (with responsibility for crofting), stated:-

“There was of course a question over what to do with… the 44 applications that are currently held in abeyance. The observant will have noticed that the figures have changed slightly from the earlier announcement in Parliament on 28 March—the number of outstanding applications has reduced from 50 to 44 as a result of checks undertaken by the Crofting Commission at our request, which have verified that six of the outstanding applications did not in fact relate to owner-occupier crofters.”

What pray did those applications relate to if not owner-occupier crofters? Aliens perhaps 😉 There is no explanation that I can find in the Stage 1 debate and no MSP enquired as to the fate of the six involved. So I made my own enquiries of the Scottish Government and was advised that these were, as I suspected, owner-occupiers who were not owner-occupier crofters.

Thus, whilst on the face of it, Paul Wheelhouse’s announcement looks like the decrofting problems of some have been reduced the fact of the matter is it may only be beginning. Those owner occupiers are likely to be owners of part of what is technically classed by the Crofting Commission as one croft unit. Thus, given the Crofting Commission’s recent policy (apparently based on legal advice which as usual remains top secret), decrofting applications will only be considered by the Crofting Commission if all the distinct owners of that croft unit concur in the application. That could happen in all six cases but it may only happen in some or indeed none. If the latter you then have six people who simply cannot decroft land that they own. The six are therefore potentially in a worse position than they would have been if classed as owner-occupier crofters with a resolution in sight, by virtue of the Crofting (Amendment) (Scotland) Bill, possibly as soon as the end of this month.

Thus this latest spin actually hides a problem that the Scottish Government is at the moment continually sidestepping. Whilst they have indicated an intention to tackle the numerous other problems that exist in crofting legislation this is one that certainly needs to be addressed sooner rather than later. Remember… crofting is not a perfect world.

Brian Inkster

[Photo Credit: Nature’s number 6 by David M. Goehring]