Tag Archives: Highlands and Islands

My response to the Consultation on the Future of Crofting Legislation

Response to the Consultation on the Future of Crofting LegislationThe Consultation on the Future of Crofting Legislation received responses up until 20 November 2017. An analysis of the responses was published on 21 March 2018 and Fergus Ewing MSP, Cabinet Secretary for the Rural Economy and Connectivity with responsibility for crofting, outlined the Scottish Government’s plans for legislative reform to the Cross-Party Group on Crofting on 28 March 2018.

I will come back on this blog to look in more detail at the analysis and Government plans. In the meantime I thought I should publish here my own personal response to the Consultation.

Current Scottish Government crofting policy may be stated as:

The Scottish Government values crofting as a form of land tenure and recognises
the added contribution that crofting continues to make to the rural economy and the
sustainability of rural and remote rural communities.

The Scottish Government is committed to reforming crofting to secure its future,
bring new blood into crofting communities, and ensure it can continue to contribute to
the development of a thriving rural Scotland.

This policy is reflected in the current legislative framework which places a number of
duties on crofters, including the duty to reside within 32 km of the croft; cultivate the
croft, or put the croft to another purposeful use; and not misuse or neglect the croft.
These duties serve to maintain the integrity of rural communities in the Highlands
and Islands.

Question 1: Do you agree with the stated Scottish Government policy on crofting?

Answer 1: No strong views on the question of policy but will refer to it when commenting on the ‘Clean Sheet’ approach to legislative reform below.

Question 2: Please select your preferred option to indicate which you believe to be the most suitable way to proceed with any crofting law reform. Should you wish to suggest another approach that has not been discussed above, then please select ‘other’ and provide details.

The options given were:-

Option 1 – Consolidation Bill
Option 2 – Bill amending existing legislation / Pre-Consolidation Bill
Option 3 – Bill amending existing legislation and restating crofting law
Option 4 – Bill setting out ‘new’ crofting law

Answer 2: Option 2.

The Scottish Government has already given a commitment to legislative change. Option 1 will not achieve that and arguably should not have been an option at all.

The Scottish Government’s Crofting Policy “is reflected in the current legislative framework” and thus there would appear no merit in pursuing a ‘Clean Sheet’ approach when current legislation and policy coincide. There is also a danger that pursuing a ‘Clean Sheet’ approach will result in much debate and little ability to actually fix the problems identified in ‘The Sump’ Report within this Parliamentary term. Thus Option 4 should be discounted.

It would appear that Option 3 may result in less problem areas being tackled than Option 2. Consolidation does not need to happen at the same time as amendments to the law and should not be pursued at the same time if that is going to reduce the number of amendments involved to existing law.

Thus Option 2 is really the only sensible one for the Scottish Government to pursue.

Questions 3 – 9 asked various questions on (1) Absenteeism, Misuse and Neglect; (2) Assignation and Succession; (3) Common Grazings; (4) Crofting Commission Regulatory Functions and Processes; (5) Crofting Registration; (6) Owner-occupier Crofts; and (7) Standard Securities.

Question 10 asked for those seven issues to be listed in order of priority: ‘higher priority’ first to ‘lower priority’ last.

Rather than answering those questions individually, or providing a priority list, I decided to deal with that as part and parcel of my answer to question 11 and simply referred the Scottish Government to that particular answer.

Question 11: Please tell us any other thoughts you have about the proposed Crofting Legislation reform not covered in your earlier answers.

I have not answered questions 3 to 10 as I consider my views on these matters to be covered by ‘The Sump’ Report (November 2014) [PDF] and the Proposals put forward by the Scottish Government’s Crofting Legislation Stakeholder Consultation Group (10 February 2015) [PDF]. These documents prioritise matters but ultimately are of the view that all (not some) of the problem areas identified should be tackled and fixed by the Scottish Government. A new Bill under Option 2 should set out to do just that.

My views on Standard Securities are contained in an article entitled “Is it Time for a Crofting Mortgage Bill?” originally published by The Firm Online on 31 May 2010 and subsequently reproduced in The Crofting Law Group Newsletter. Those views have not changed with the passage of time.


Those were my responses. You can view 97 of the 122 submitted responses (N.B. 97 of those 122 respondents gave consent to publish their responses) via this Scottish Government link: https://consult.gov.scot/agriculture-and-rural-communities/crofting-consultation-2017/consultation/published_select_respondent.

In future blog posts I will look at the analysis of those responses and the Scottish Government’s plans in light of that analysis. I will also publish on this blog my views on Standard Securities from 2010 as ‘The Firm Online’, where those views were originally published, is no longer online.

Crofting Federation call on the Commission’s Convener to be ousted

Scottish Crofting Federation call on Crofting Commission Convener Colin Kennedy to be oustedOn the back of assertions by Colin Kennedy in the press and on TV that he has no intention of resigning as Convener of the Crofting Commission the Scottish Crofting Federation has called on the Cabinet Secretary for crofting, Fergus Ewing, to oust him. First Minister, Nicola Sturgeon, hinted at their ability to do so at last week’s First Minister’s Question Time. The BBC suggested if he didn’t jump he would be pushed.

Fiona Mandeville, Chair of the Scottish Crofting Federation, said:-

This dreadful humiliation of crofting regulation and complete waste of public money has got to stop.

In his latest statements to the media, Mr Kennedy has said that he intends to stay in place as Convener of the Crofting Commission. He still refutes any wrong doing and claims to have operated within the law, despite the fact that lawyers and the Cabinet Secretary for crofting, who is himself from a legal background, have said he is wrong. That is some arrogance.

To top this Mr Kennedy said on the BBC that he had no knowledge of the fact that his fellow Commissioners have no confidence in him. He must be the only person in Scotland who hasn’t heard that last week the Commissioners unanimously agreed that Mr Kennedy should stand down, following his petulant abandonment of their board meeting. This joins the widespread calls from the Scottish Crofting Federation, crofters and politicians for Mr Kennedy to go. He’s now a laughing stock if it weren’t so serious a situation. He is a lonely figure with his head stuck firmly in the sand.

How much is this whole affair costing the public purse? The resources being used trying to clean up after Mr Kennedy’s bungling must be astronomical. We have the existential crisis of Brexit staring us in the face and the fundamental weaknesses in the whole regulatory framework, yet a phenomenal amount of everyone’s time and energy is being expended on this one deluded despot.

The Cabinet Secretary must end this farce and restore some normality in crofting by demanding Mr Kennedy’s resignation forthwith. It is within his power to do so. Mr Ewing has the support of the Crofting Commissioners, the public, MSPs and the First Minister. If it just takes all the parties to formally give their support, we urge them to make this clear. Crofting is too important to the Highlands and Islands to let this man run rough-shod over the lives of decent people any longer.

Image Credit: Lord Sugar says “You’re fired” on The Apprentice © BBC

Book Review: Set Adrift Upon the World – The Sutherland Clearances

Set Adrift Upon the World - The Sutherland ClearancesIn ‘Set Adrift Upon the World’ James Hunter masterly weaves together a fascinating account of the Sutherland Clearances. One that takes you from the Strath of Kildonan and other parts of Sutherland to battles in New Orleans via South Africa and onto the foundation of what is now the Canadian city of Winnipeg.

Along the way you are introduced to characters from the early 1800s that have a familiarity about them as their names remain in use today throughout the Highlands & Islands of Scotland. Heart wrenching accounts are given of the barbarity of evictions that left people homeless and often resulted in the death of the young or infirm shortly on the back thereof. Journeys by foot across frozen Canada conjure up images like those from the Oscar winning film ‘The Revenant’. On a lighter note the intricacies of malt whisky making are explained and we learn what Alison Watt’s favourite painting is in the collection of the National Galleries of Scotland.

The clearances were at the behest of the Marquis and Marchioness of Stafford (later to become the Duke and Duchess of Sutherland) to make way for large scale sheep farming. Those removed from the land would have the option of much smaller crofts on the fringes of the Sutherland Estate that would be unsustainable on their own without other income streams. Much indeed as crofting has become today. Many of those evicted instead moved to Caithness or further afield to Canada for the prospect of larger holdings on which to make a living.

The henchmen in the tale are James Loch, Commissioner to the Marquis of Stafford, and Patrick Sellar, Factor of the Sutherland Estate. The chapter on the trial of Patrick Sellar in the High Court on culpable homicide charges is an infuriating read for anyone concerned with the rule of law. Indeed that is a theme throughout the book where wealth and status invariably lead to injustice for others.

The book often feels more like a fictional novel rather than a factual historical account. That is the beauty of James Hunter’s approach to history and one he himself refers to as storytelling. This makes it a real page turner with you eager to know what happens next even though you know what the ending must be.

It was impossible for me to read this book without unfortunately seeing parallels to ‘The Common Clearances’ of today. That is the removal from office of Common Grazings Committees by the Crofting Commission. A body whose remit is supposedly to regulate not decimate crofting. This is currently happening with unusual regularity, in haste and on what appears to be completely unreasonable and unnecessary grounds. The Crofting Commission are today’s Marquis and Marchioness of Inverness and their henchmen are easily identifiable. Kangaroo courts, ignorance of the law, conflicts of interest, self-interest, corruption, nepotism, historical revisionism, intimidation and bullying have all been referred to as tactics used by the Crofting Commission as part of ‘The Common Clearances’. About the only difference with the Sutherland Clearances so far is the absence of fire. To think these comparisons are being made 200 years after the Sutherland Clearances is hard to fathom. Equally hard to believe is the fact that the Scottish Government of today has so far not intervened in what the Scottish Crofting Federation has referred to as a “calamity”.

As James Hunter points out, Beriah Botfield, a Tory MP, commented in 1830, that no “pursuit of prospective advantage” made it legitimate “to transgress the laws of humanity”.

Brian Inkster

N.B. This book review was written for and first appeared in Scottish Legal News and Irish Legal News.

Buy ‘Set Adrift Upon the World – The Sutherland Clearances’ at Amazon