Tag Archives: Derek Flyn

The Cross-Party Elephant?

The elephant in the crofting cross-party room

Was there an elephant in the room at the crofting cross-party group meeting?

The cross-party group on crofting met last Wednesday at Holyrood.

It was very ably chaired by Tavish Scott MSP. He is one of the three co-conveners of the group, having been elected along with Kate Forbes MSP at the last meeting to replace Michael Russell MSP after Mr Russell became Brexit Minister. Rhoda Grant MSP is the third co-convener of the group.

Fergus Ewing MSP, cabinet secretary with responsibility for crofting, was a special guest at the meeting.

Mr Ewing made it clear at the outset that he couldn’t comment in any respect on the current controversy regarding the convener of the Crofting Commission given the allegations made by him against Mr Ewing which are the subject of an independent investigation.

Mr Ewing outlined all that the Scottish Government is currently doing to assist crofting and its future.

In particular he discussed future crofting law reform. The Scottish Government wants to modernise crofting law and make it transparent, understandable and workable in practice. Mr Ewing made it clear that they very much wanted to listen with no precise timetable in mind.

Mr Ewing stressed the importance of taking time to get it right. I couldn’t endorse that view more and trust that we won’t see the chaos of a huge number of last minute amendments that was encountered in creating the Crofting Reform (Scotland) Bill in 2010. That was possibly partly responsible for many of the issues (not common grazings ones that were not affected by the 2010 legislation) that has led to the current Scottish Government having to tackle crofting law reform so soon again.

After Mr Ewing left the meeting we continued with the topic of crofting law reform. Derek Flyn outlined the background to the crofting law sump report which he described as a “collection of what is wrong with crofting law”.

Michael O’Neil, the newly appointed Head of the Scottish Government Legislation Team, then outlined proposals to take crofting law reform forward.

Mr O’Neil indicated his intention to involve as wide a range of stakeholders as possible. He will get out and about and meet anyone he needs to speak with.

He will refer to the information contained in the crofting law sump and in the Shucksmith Report.

Some questions Mr O’Neil had in mind included:-

Why do we need crofting legislation?
What changes need to be made to it?
How do we go about delivering the changes identified?
Are there other options to new legislation?

A small team has been assembled by the Scottish Government to take crofting law reform forward.

It will be interesting to see this process move forward and we will keep you posted on the Crofting Law Blog as it does.

Bill Barron, the new Chief Executive of the Crofting Commission, was attending his first cross party group meeting. On the agenda was an “update on grazing committee removals and other current Crofting Commission business”. He appeared to dodge being able to provide that update on the basis that it was his fifth day in the job.

However, sitting next to him was the Convener of the Crofting Commission, Colin Kennedy. Mr Kennedy did not offer an update on grazing committee removals and other current Crofting Commission business. Indeed, other than to introduce himself as all attendees did at the outset, Mr Kennedy sat silent throughout the entire meeting. He didn’t speak and no one asked him to speak.

This was, of course, the first crofting cross-party group meeting that Mr Kennedy has attended in this session of Parliament, having avoided the last two. He has thus not expressed the views of the Crofting Commission to the cross-party group since this session of Parliament commenced.

Mr Kennedy has, however, been very vocal in expressing his own personal views (which don’t necessarily coincide with those of the board of the Crofting Commission) in the media over the past few weeks including, in particular, in four successive editions of the Scottish Farmer.

His presence at last week’s cross party group meeting was referred to by some as the elephant in the room. But can the situation simply be ignored?

Brian Inkster

The Crofting Law A-Team

The Year of The Crofting Law Sump

Should the Chairman of the Land Court be hung, drawn and quartered?

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"should my friend the new chairman of the Land Court, Lord Minginish, be hung, drawn and quartered"

It would be unusual to penalise the Chairman of the Land Court!

The Rural Affairs, Climate Change and Environment Committee of the Scottish Parliament were today taking evidence on the Scottish Government’s amendments to the crofting community right to buy at Stage 2 of the Community Empowerment (Scotland) Bill.

Eilidh Ross MacLellan will be looking at the relative crofting provisions in a little more detail in a future blog post. In the meantime I will just draw your attention to a particular highlight from today’s proceedings.

It was pointed out that Section 92 of the Land Reform (Scotland) Act 2003 allows the Scottish Land Court four weeks from the hearing date to give its reasons in respect of a valuation appeal. A proposed amendment will extend that period to eight weeks. Should that extended timescale not be sufficient, the Land Court is to notify all parties of the date on which it will provide a written decision.

Derek Flyn gave his view on this:-

What sanction is available to parties if the Land Court does not do as instructed in the legislation? No sanction is included. If there is no result within the eight-week period and no information about when the written statement will be produced, should my friend the new chairman of the Land Court, Lord Minginish, be hung, drawn and quartered?

A good point. Derek went on to say:-

How the Land Court goes about its business should be in its rules and regulations. If it is in the bill, nothing will be able to be done about it if it goes wrong. It will just cause a legal problem that will go into the courts and stay there.

Hopefully the Scottish Government will endeavour to avoid such legal problems.

It was decided to ask the Minister about this one.

I trust Lord Minginish will not be in jeopardy of any penalties, especially of the medieval variety, by the time the Bill becomes an Act.

Read the Official Report of the Rural Affairs, Climate Change and Environment Committee – 18 February 2015 [PDF]

Brian Inkster

All quiet on the crofting law blog

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There have not been any posts for a while on the crofting law blog. That is not because nothing has been happening in the world of crofting law. It is simply because the crofting lawyers at Inksters have been somewhat occupied over the past few months with activities that have kept us away from blogging. Inksters have moved into a new HQ in Glasgow and expanded staff numbers by four including a Gaelic speaking solicitor based in Glasgow and an Estate Agent based in Portree who will enhance the service Inksters can provide to crofters selling their crofts in Skye and Lochalsh and the surrounding areas. The new Estate Agent will also cover Inverness-shire, Fort William and Oban. Eilidh Ross of Inksters’ Portree and Inverness offices has been on maternity leave with Brian Inkster and Martin Minton covering for her during that period. Eilidh is now back at work from the beginning of May.

With things settling back into place we will be able to catch up with some crofting law blog posts on here. Indeed we have at least five in the pipeline: A Review of crofting law in 2013 and a glimpse at what 2014 may have in store (an article from Brian Inkster that first appeared in the Scottish Legal News Annual Review 2014); ‘To buy or not to buy?’ and ‘Did the 2010 Act Equalise Availability of Crofting Grants?’ both by Eilidh Ross; a guest post on owner-occupier crofters by Derek Flyn; and a post by Brian Inkster on the recent Land Court decision on whether resumption of part of a common grazings triggers registration in the Crofting Register of all crofts with a share in that grazings.

So keep an eye on the crofting law blog over the next few weeks as things will be far from quiet here in May.

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.

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.

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.

Common Grazings and the Lewis Gathering

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

20 Crofting Lawyers in a room together

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Not sure if any of these lawyers know anything about crofting law!

At the evidence gathering session on the Crofting (Amendment) (Scotland) Bill by the Rural Affairs, Climate Change and Environment Committee on 15th May the following exchange took place concerning 20 lawyers in a room together.

Richard Lyle MSP introduced the concept:-

I am not a lawyer or a crofter. However, I know that in 1993, 2007 and 2010, and now in 2013, we have had to try to deal with this problem. I am sure that it is a very important issue for many crofters. With the greatest respect to Sir Crispin Agnew, however, I am sure we can agree that if we put 20 lawyers in a room, they will come up with 20 different answers. In relation to the interpretation of the law, the point was made earlier that between an “owner-occupier” and an “owner-occupier crofter” there can be a world of difference as to whether those people fit into the bill. As was mentioned earlier, Brian Inkster suggests that we can deal with the problem elsewhere, and Sir Crispin Agnew said earlier that he has other items to present to the committee. Can you really tell me that the proposals in the bill will solve the problem? Do you agree with me that there will be other problems that need to be addressed but which may have to be addressed at a later date because people have not even thought of them yet?

Sir Crispin Agnew’s view on this was:-

Yes. Where there are two lawyers, they can give different opinions. If something is well drafted, generally speaking— although not always—lawyers will give the same advice.

Derek Flyn gave his thoughts:-

On getting 20 lawyers in a room, I do not think that you would find 20 crofting lawyers who were prepared to sit and talk knowledgeably about crofting—although, as we know, there might well be more than 20 lawyers wanting to listen.

Well, on 31 May the Crofting Law Group held its AGM in Edinburgh and almost managed to get 20 lawyers in a room together to discuss the Bill. There were in fact 17 plus two non-lawyer members who probably know more about crofting law as most lawyers do.

Many, as Derek Flyn identified, were happy to listen but others talked knowledgeably about the Bill and the problems associated with it. One thing that was striking was that there was no disagreement amongst the 19 members of the Crofting Law Group in attendance as to the problems raised. There was not the 19 different answers that Richard Lyle might have suspected there to have been.

There could have been as many as 19 issues raised about the Bill. These were all of the issues already raised by myself, Sir Crispin Agnew QC, Derek Flyn (all three of us being in attendance at the AGM) and others in evidence given to the Rural Affairs, Climate Change and Environment Committee. There was general agreement that these issues were all problems that required to be addressed in the necessary re-drafting of the Bill. Let’s hope that the Scottish Government pay attention to the ’20 lawyers in a room’ who all held the same opinion.