I requested the Crofting Commission to provide me with copies of the legal advice sought and obtained by them on the question of owner-occupied croft decrofting. They replied:-

“As you will be aware legal advice is exempt from disclosure under Section 36(1) of the Freedom of Information (Scotland) Act 2002 as legal professional privilege. We do not recognise that this is a qualified exemption and there can, in certain circumstances, be public interest arguments as to why legal advice should be released. In this case however we do not consider that the public interest outweighs legal confidentiality at this time, as both Ministers and officials are currently considering legislative remedies to resolve the situation.”

My request was to enable me to assist a crofter whose application to decroft has been put on hold by the Crofting Commission. The Crofting Commission has stated that such affected crofters should seek their own “independent legal advice as to possible remedies”. Yet the Crofting Commission are not explaining to crofting lawyers exactly how and why they have come to the conclusion that they have done on owner-occupied croft decrofting.

The Crofting Commission are expecting those affected by their decision and their advisers to operate in a vacuum where the rationale involved is an unknown quantity.

The legal advice obtained by the Crofting Commission relates to the interpretation of a very specific part of the Crofters (Scotland) Act 1993. It does not concern an actual situation or individual. It is not the subject matter of a dispute before the courts. Why then should it be privileged?

It does, however, affect (as Tavish Scott MSP pointed out in the recent debate at the Scottish Parliament arising from the motion by Jean Urquhart MSP to debate the role of Crofting in the Highlands & Islands) 3,000 owner-occupier crofters who may wish, at any time, to apply for a decrofting direction of the whole or part of their owner-occupied crofts.

Paul Wheelhouse MSP, has down played this statistic and considers instead the relevant one to be those only immediately affected, namely the 59 who have lodged decrofting applications that  have now been put on hold. However, the potential is there for it to affect many more especially the longer the saga is drawn out.

The recipients of the 179 decrofting directions granted since the new provisions contained in the Crofting Reform (Scotland) Act 2010 came into force should not be forgotten either. Surely if you accept the Crofting Commission’s argument that it does not have the power to grant those decrofting directions then they must be null and void. The knock on effect of this I have already looked at elsewhere, including the fact that title deeds could, in certain circumstances, also be null and void.

Anyway, the fact is that this does have widespread repercussions. There must also be a general public interest in the time and money being spent by public funded bodies (the Crofting Commission and the Scottish Government) on ruminating over, causing and resolving (if there was ever anything to resolve in the first place) the mess that has been created.

By publishing the legal advice crofting lawyers such as myself can assist the process by either putting forward legitimate arguments for why it may be wrong or endorsing it as correct. I have been contacted by several crofting lawyers in private practice who support my interpretation of the law. None have, so far, attempted to put forward a contrary view. I have asked the Crofting Commission to explain where I may have gone wrong in my interpretation. They have, so far, ignored the invitation to correct me.

I may well be wrong. If I and other crofting lawyers were given sight of the legal advice obtained by the Crofting Commission we may well see a point that I have been missing and concur with it. By keeping it top secret that opportunity will be lost.

Ultimately are we going to see much time and effort spent on emergency legislation that no one will ever know whether or not was necessary as the real reason for it will never be made public? Surely that cannot be in the public interest.

There is, in my opinion, no good reason for top secret crofting law unless, perhaps, you have something to hide.

Brian Inkster