Tag Archives: Crofting Law Conference

Crofting Law Group Conference 2017

The Crofting Law Group are holding their annual conference this year at Lews Castle, Stornoway, Isle of Lewis on 9th June 2017.

Chaired by Sir Crispin Agnew of Lochnaw, Bt. QC, the conference will look at the Scottish Government’s proposals for Crofting Law Reform, where things are at and what happens next. Michael O’Neill from the Crofting Bill Team of the Scottish Government will guide delegates through that. There will be views from Patrick Krause Chief Executive of the Scottish Crofting Federation.

Bill Barron, Chief Executive of the Crofting Commission will provide a Crofting Commission Update.

The Conference will look at the question of Common Grazings, what went wrong last year (a recurring theme on this blog!) and what does the future hold with reference to the Crofting Commission’s proposed new Common Grazing Regulations Template. There will be contributions and discussion on this topic from the Crofting Commission’s Solicitor, David Findlay, Solicitor Brian Inkster, Crofters and Landlords. Relevant excerpts of the film ‘Grazing on the Edge’ will be shown and introduced by Janette Sutherland of the Scottish Agricultural College.

Duncan MacPhee, Solicitor, will look at Mortgages for Croft Houses.

There will also be the usual case law update provided this year by Robert Sutherland, Advocate.

Representatives from Registers of Scotland will be on hand to answer any queries concerning the Crofting Register.

For full details and to book your place see Crofting Law Conference 2017 on the Crofting Law Group website.

Political Consensus on the need for Crofting Law Reform

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At the Crofting Law Conference (organised by the WS Society and the Crofting Law Group) held in the Signet Library, Edinburgh yesterday there was cross-party agreement on the need for crofting law reform.

Trudi Sharp, Deputy Director of Agriculture, Rural Development and Land Reform, in the Scottish Government stood in at the last minute for Dr Aileen McLeod MSP, Minister for Environment, Climate Change and Land Reform, who was unfortunately unwell and unable to deliver the keynote address on behalf of the Government.

Trudi Sharp indicated that she had yet to speak to anyone who would disagree with the sentiment that there was a need to simplify crofting legislation. She said:-

The Minister is clear that crofting legislation should be well thought through with stakeholders and deliver law that is modern, simple and fit for purpose.

The Conference heard the views of the opposition from Rhoda Grant MSP, Scottish Labour; Tavish Scott MSP, Scottish Liberal Democrats; Donald Cameron, election candidate for Scottish Conservative and Unionist Party; and Andy Wightman, election candidate for Scottish Green Party.

This was followed by ‘Crofting Question Time’ moderated by Jean Urquhart MSP with the opposition MSPs/election candidates being joined for that session by Rob Gibson MSP, Scottish National Party.

There was little in the way of disagreement about the need for crofting law reform.

Rhoda Grant MSP said:-

The 2010 Act is a mess and probably needs to be revoked altogether.

This was echoed by Tavish Scott MSP who said:-

The less said about the 2010 Act the better. It is one of the worst pieces of legislation ever passed by the Scottish Government.

He added:-

Crofting Law has been a mitigated mess and devolution has not helped take it forward.

Both Tavish Scott and Rhoda Grant were of the view that crofting can mean different things in different areas. Shetland, for example, is very different to other areas that may work in a more communal way. They felt the current legislation does not recognise these differences.

Donald Cameron was of the view that it was “time for crofting law to be for the crofters and not the lawyers”. He warned though that “if you legislate in haste on crofting law you will repent at leisure”.

Andy Wightman, quoting Dr Jim Hunter, referred to crofting law as a “highly unsatisfactory guddle”.

Brian Inkster, Hon Secretary of the Crofting Law Group, commented:-

It is heartening to see such cross-party support for crofting law reform. The word ‘mess’ was used more than once to describe the current state of crofting legislation. It is to be hoped that the next Scottish Government take cognisance of this and put crofting high on their agenda for new legislation during the next parliamentary term.

Photo Credit: All photos are by Rob McDougall for the Crofting Law Group

Setting the Agenda for Crofting Reform

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Ahead of the Crofting Law Conference in Edinburgh today The Scotsman have published an article with the headline ‘Crofters to lobby for key changes to ‘complicated’ laws‘.

They quote Patrick Krause, Chief Executive of the Scottish Crofting Federation, as saying:-

Crofting law is notoriously complicated and the waters have been further muddied after the 2010 Crofting Act.

Crofting is unique in Scotland by having its own legislation and being a regulated system. It is therefore is essential that the legislation is fit for purpose.

The act needed cleaning up before the 2010 changes. This is unfinished business.

Unfortunately the 2010 introduced further errors and anomalies. The Sump gathered 126 of these and probably the only way to address them is with a new act.

Politicians are a bit reluctant to do this, but SCF is asking parliamentary candidates to finish the job.

And they also quote Brian Inkster, in his capacity as Hon Secretary of the Crofting Law Group, as saying he hopes today’s conference will set the agenda for crofting reform by the next Scottish government. Brian told The Scotsman:-

On Monday I will be spending much of the day arguing before the Scottish Land Court the significance of the Crofting Reform (Scotland) Act 2010 having deleted the word ‘or’ in a section of the Crofters (Scotland) Act 1993.

The result could be an unintended consequence. This is a good example of the problems that the 2010 Act has been causing since its introduction. It was an extremely badly drafted piece of legislation on top of existing complex law.

There remain numerous problems and issues in the legislation that can trip up the unwary on a daily basis. The current government pledged to resolve matters, and the next government really must seize the bull by the horns and sort the mess out once and for all. That will involve a comprehensive new crofting act that is well drafted, easily understood and designed to resolve the existing problems and not create any new ones.

MSP Alex Fergusson has referred to recent crofting legislation being like the Hydra. You think you have solved a problem but suddenly two new ones appear. The next Scottish government simply can’t afford to let that happen again.

We will provide a full report on today’s Conference after the event.

Crofting Law Hustings

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The calm before the crofting law storm at the Signet Library!

Part of this year’s Crofting Law Conference (organised by the Crofting Law Group in association with the WS Society) will take the form of a hustings on crofting law. With the Scottish Parliamentary Elections looming there is great interest in crofting circles as to what the next Scottish Government might do to resolve the many problems in existing crofting legislation identified by The Crofting Law Sump Report.

The conference will take place at the Signet Library in Edinburgh on 17th March 2016 and is Chaired by Sir Crispin Agnew of Lochnaw Bt., QC, Chairman of the Crofting Law Group.

Brian Inkster, Hon Secretary of the Crofting Law Group, will provide an introduction as to where we are at with ‘The Crofting Law Sump’. Then Dr Aileen McLeod MSP, Minister for Environment, Climate Change and Land Reform will keynote on the current Scottish Government’s position on crofting law. She will be followed by the ‘Views on Crofting Law from the Opposition’ from MSPs and representatives from other political parties. The crofting law hustings will culminate with an opportunity for delegates to put their own questions to the panel in a ‘Crofting Question Time’ session. Participants are:-

Jean Urquhart MSP, Independent (moderating ‘Crofting Question Time’)
Rob Gibson MSP, Scottish National Party
Rhoda Grant MSP, Scottish Labour
Tavish Scott MSP, Scottish Liberal Democrats
Donald Cameron, election candidate for Scottish Conservative and Unionist Party
Andy Wightman, election candidate for Scottish Green Party

Following on from the crofting law hustings several recognised specialist speakers will present on Crofting Succession and Crofting Mortgages and representatives from both the Crofting Commission and Registers of Scotland will be there to discuss current issues. There will also be a case law update. Speakers and panellists include:

David Findlay, Solicitor, Crofting Commission
Rod Maclean, Solicitor, Murchison Law
Jill Clark, Head of Civil Law Reform Unit, Justice Directorate, Scottish Government
Eilidh Ross MacLellan, Solicitor, Inksters
Catriona Maclean, Chief Executive, Crofting Commission
Martin Corbett, Head of Policy Development, Registers of Scotland
Rhona Elrick, Registers of Scotland
Donald Cameron, Westwater Advocates

WS/CLG member: £180 + VAT
Non-member: £205 + VAT
Trainee/student/retired: £115 + VAT

All rates include lunch at the Signet Library.

To book, please contact Nicole Hatch at the WS Society:-

0131 220 3249

E-mail: nhatch@wssociety.co.uk

Download: crofting law conference booking form

The event is supported by First Title and Wesleyan

Crofting Law Conference 2013 in Tweets

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This year’s Crofting Law Conference organised by the Crofting Law Group in association with the WS Society took place at the Signet Library in Edinburgh on 27 September 2013. Martin Minton provided a report on the Crofting Law Conference for The Firm. I was tweeting throughout the Conference via @CroftingLaw and now reproduce my tweets here:-

Sir Crispin Agnew opens the annual Crofting Law Conference

Sir Crispin announcing ‘the sump’ to gather crofting law problems for consideration of Scottish Government [N.B. More details on this to follow in the next post on this blog]

Now @RobGibsonMSP giving the keynote address

There is a future for crofting and need to make legislation for it

.@RobGibsonMSP quoting @LesleyRiddoch

2007 Crofting Act seen as a quick fix

Layer upon layer of laws

RT @thehealthrebel: and the listing of many croft buildings making them expensive to maintain and/or purchase!

Codifying possibly the best way forward

Depopulation an issue in crofting communities

50% of homes in some crofting communities are holiday homes only used for part of year

Scottish crofting scene is fragile

Need for more local control in crofting

Benefit of Crofting Connections and Crofting Federation Training being mentioned

Out migration, particularly by women, is an issue

Convenor and Chair of Crofting Commission now women

Challenge is to adopt a can do approach

Q&A session with @RobGibsonMSP

Can we use legislation to encourage more female crofting tenants?

Very happy for Scottish Government to look at this

Clarification on codification v consolidation being sought

Codification may do something more fundamental for this generation

New start much more noteworthy than getting all the laws into one book

Can’t have joint tenancies of crofts – that would bring females in

Re-defining crofting law politically or legally?

Hope that there is a small farm ethos that can be encompassed in laws that are not so archaic

RT @RobGibsonMSP Made keynote speech WS crofting law conf. Simplify codify underpin future croft extension to all similar small land holders I argued today

Now Susan Walker Convenor of Crofting Commission on the Residency Duty (commonly referred to as Absenteeism)

1886 “Resides on the holding”

1955 “on, or within two miles of, the croft”

1961 increased to 10 miles

2010 Act now 32km

S40A notice – are crofters complying with residency duty? Should have been done by Commission by April. Still to do.

s49A Grazing Committee duty to report on residency

We now have microphones working – much clearer audio!

Difficult but not impossible to cultivate your croft if absent

9 of 10 people in 2,500 responses in @MarkShucksmith‘s Report wanted action on absenteeism

Only 2 letters in one geographical area complaining about absenteeism legislation. Many letters seeking action on absenteeism

1801 absentees with 582 of those for over 10 years

“Ordinarily resident” taken in the round about what a crofters entire duties are. Do they have “settled purpose”.

Wouldn’t take action where relative stays on the croft

Evidence of active use of the croft

Sublets for not more than two years to absentees unless for good reason

Ministerial direction in 2010 to take action for absentee cases over 10 years. Can take 18 to 24 months to process.

Stages: Review, Proposal to Terminate, Advertise proposal to terminate, Terminate tenancy.

RT @culcairn: should never be a 2 year process. Undermines confidence in act.

Advertising not in legislation but gets info from crofting community to help decision to inform

Can apply for consent to be absent

Fixed term work contract, education, hospital, no house (need to build) all reasons for need to be absent

RT @NeilKing11 Why was none of this covered in the CC Plan? tinyurl.com/p3hrxam

Complex flowchart now being shown of s26A-K process

Easier to understand pictorially than from legislation

Results: 300 crofts now have resident crofters. Either returning crofters or assignations.

35 terminations

August 2013 – 13,616 crofters with 13% being absentees

Commission understand emotional attachment and sense of duty that people have to their croft

Do I want to be a crofter, live on and work croft and be active in community and care enough about my croft to change my life

Want to create thriving crofting communities. When holes they don’t work so effectively

Residency easier to deal with than neglect #croftinglaw Is it not better to tackle neglect than absenteeism where no neglect?

Vast manpower would be required to deal with neglect

Breaking for tea/coffee

Sump Group Results now on crofting problems

Owner-occupiers who are not owner-occupier crofters who need consent of neighbours of original croft unit

Validity of Decrofting Directions issued pre Feb 2013 to owner-occupiers who are not owner-occupier crofters

Problems of Crofting Commission identifying owner-occupiers who are not owner-occupier crofters

Need for section 5(3) Agreements to apply to tenants and owner/occupiers and binding on successors and tenants

Landlords need to pay compensation on terminations made by Commission due to absentees. Large financial commitment

Assignation of croft on First Registration needs to be intimated by assignor to Commission within 3 months or invalid

Purchase of a croft by tenant does not trigger registration

Purchase of whole croft when sasine title. Need to be sure is whole croft or deed will be invalid.

s.17/18 feu ganted when tenancy given up. Now when decroft that is not an exemption from registration in crofting register

Access rights should be registered on crofting register

Status of grazings shares still not clear

Can we divide a grazing share from the croft?

Multiple owners – can we draw a line under the sand and take previous divisions as actual divisions?

Removal of “cultivate by hired labour”. Why?

If Land Court could propose changes to Scheme for Development that might be useful

What happens when you deviate from a Scheme for Development that has been granted?

Crofters duties: neglect a bigger problem than absenteeism

2010 Act difficult to understand

Evil happening in Skye re. termination of tenancies and Landlords extracting a premium on re-letting

Joint landlords can’t make application to divide a croft so must re-let part so they become owner-occupiers of new croft

Multiple owner-occupiers and duties. Do all need to comply or just 1. Commission say 1. If only 5% complying is that sufficient

Joint tenants? Worth exploring.

Validity of corporate entities in a crofting context

Advertising costs re. Crofting Register – could be £100 per advert x 2.

Need distinction between codification and consolidation but whatever #croftinglaw needs to be simplified

Confusion over role of Commission in planning process

Issues at Commission Hearing as to who has the right to be heard

Now lunch 🙂

Clean Slate debate next

Unfortunately @JimHunter22 was unable to make the clean slate debate so Sir Crispin Agnew running solo

85 year old crofter in Barra said 2 cow croft gives you milk for 12 months. 1 cow croft 6 months. Importance of soumings

Then fridges and supermarkets came along and soumings less important

Croft rents not kept up with open market rents for agricultural holdings

Landlords receive no financial benefits from crofts. No incentive to create more or invest in them.

RT @gemzmackenzie: @CroftingLaw might be worth writing a letter to FW summarising the key issues/pointers?

Crofts are getting smaller and smaller and less economic to be used

Obligation to maintain croft difficult for the elderly

No absentee problem in 1886

The crofting bubble. Many Acts and consultations over the years. No one looked at social needs and integrate.

Scrap the crofting Acts and start again.

Review of whole policies to see what should be applied in Scotland or different areas. Local needs vary – policies may need to.

Is starting from scratch codification?

If Government not brave enough still need a clean slate re. crofting Acts and policy objectives.

Abolish the difference between owner/occupiers (crofters/non-crofters) and tenants. Same conditions whoever is in occupation.

Stop resumption unless by CPO

Put all croft rents up to a proper market value

RT @crofterbecca “@CroftingLaw: Put all croft rents up to a proper market value #croftinglaw” Aye, that’ll make crofting more financially attractive…

Incoherence of policy objectives the root of legislative problems

Ministers arrived in middle of this. Lawyers are major advisers. Simpler ways to deliver policy intentions necessary.

Economics and Social situations changed but still applying laws from 1886

RT @AngusMacNeilMP as tenancies did for landowning in 1886 we need a grazing right over tenancy but still leaving tenancies widespread wi folk

Crofting Register: Where are we now? with Martin Corbett of registers of Scotland

Transparency of extent of land #croftinglaw But not grazings shares?!

9 month challenge period

Online register and free of charge to access with no need to sign up to do so

First croft registration being discussed #croftinglaw Covered by us at ow.ly/pgZog

12 evening events on Crofting register being run from Barra to Shetland by Registers of Scotland + attending Highland Shows.

Badralloch Community Mapping underway

Compulsory Registrations from 30 November 2013 on trigger events happening

Suggest if first Registration in Land Register also do Crofting Register application at same time.

Land Registration (Scotland) Act 2012 gets rid of overriding interests other than 3 types. Crofting will no longer be noted.

Crofting Register: ros.gov.uk/croftingregist…

David Barnes – Can’t rush into new crofting legislation. Welcome collective approach of gathering problems together (‘the sump’)

28 national governments and 700 MEPs put together CAP Reform

New Basic Payment Scheme replaces SFP

Move from historic to area based payments – but can phase in (internal convergence)

Can split Scotland into different payment areas

Small Farmer Scheme = simplified option. One off application at beginning and lump sum every year without fresh applications

Crofters can claim new basic payment on in-bye land and common grazing

Common grazing claim can be individual or via grazing management committee

crofters can claim greening payment

Crofters can claim other payments where appropriate

Small Farming Scheme may not be run in Scotland – still under consideration

Now Charlotte Coutts Advocate gives us a case law update

Resumption. Deer larder and hard standing for estate vehicles = reasonable

Resumption for ponies allowed

Land once resumed is outside the jurisdiction of the Land Court

Cameron v Nevis Estates: conditions of purchase could not be varied to those originally imposed by Court. One bite at cherry

No opportunity afforded by Commission to comment on other sides comments. Breach of natural justice.

Recent case on whether part of a holding = croft. Needs to fall within definition in statute.

Shetland croft boundary case being discussed. Interesting social history of case. #croftinglaw Yes… 101 productions!

Court placed boundaries where in all the circumstances they considered them to be.

Pairc Crofters case: Protection afforded to landowners. Human rights referred to.

Conference closes

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]

Crofting Law Blog

From Inksters Solicitors

Tag Archives: Crofting Law Conference

Crofting Law Group Conference 2017

Political Consensus on the need for Crofting Law Reform

Setting the Agenda for Crofting Reform

Crofting Law Hustings

Crofting Law Conference 2013 in Tweets

The Scottish Government knows best about Crofting Law