Tag Archives: RACCE

The Scottish Government knows best about Crofting Law

The Scottish Government knows best about Crofting LawAt 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

Length is not everything in crofting lawAt 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

20 crofting lawyers in a room together

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.

[Picture Credit: Ally McBeal © 20th Century Fox Television]

6 out of 10 to the Rural Affairs, Climate Change and Environment Committee

Strictly Come Dancing 2012The Summary by the Rural Affairs, Climate Change and Environment Committee on their Stage 1 Report formed the last post on this blog. I will now give my views on that Report.

10 Points

The Committee get 10 points out of 10 from me for acknowledging “the considerable body of opinion, particularly from the legal profession, expressing the view that the Bill as drafted is unnecessarily complex and, in places, requires amendment in order to avoid further difficulties in legal interpretation in the future.” This is something that Paul Wheelhouse MSP has, so far, failed to recognise. In the evidence gathering session by the Committee on 22 May he said:-

…the legal team has worked extremely hard to ensure that the bill is consistent with the measures in respect of tenant crofters. There are different ways to draft a bill, but we are not aware of any defects at this stage.

Many potential defects had, by that stage, been identified in the submissions made by myself, Sir Crispin Agnew QC, Derek Flyn and others. Paul Wheelhouse MSP may be turning a blind eye to these but it is good to see that the Committee is not. Indeed, the Committee went as far as to state that:-

…it strongly recommends that the Scottish Government carefully considers any amendments which may be required to the Bill at Stage 2 to allow for full scrutiny (seeking information, evidence and advice on any legal issues as appropriate) to ensure that the Bill is clear and competent and does not add further complexity to an already complex body of legislation, or have the potential to give rise to further unintended consequences.

Let’s hope that the amendments that do need to be made are indeed made at Stage 2.

Another 10 points for the Committee for highlighting that other problems exist with crofting law that need to be fixed. As they said:-

The Committee notes the significant number of other outstanding issues relating to crofting many believe require to be addressed by the Scottish Government following the conclusion of consideration of this Bill by Parliament.

With the Committee going on to ask:-

… the Scottish Government to identify how it intends to address the other issues within crofting law which were brought to the Committee’s attention during its scrutiny of the Bill and to inform the Committee of how it intends to proceed. The Committee recommends that the Scottish Government indicates how it intends to address the wider criticisms that have been made, particularly by the legal profession, of the current state of crofting law as a whole.

I, as I am sure other crofting lawyers do, look forward to hearing what the Scottish Government will be doing about the general crofting law mess.

5 out of 10

The Committee, to give them their due, highlight my point about there being no place for new law in the Bill by quoting a section of my submissions on this point:-

The proposed new section 24C(2) to the 1993 Act appears to be new law in that I cannot see why the existing section 25(1)(b) cannot equally apply as it stands to owner-occupied crofts. There should be no place for new law in the Bill rather than a necessary fix of existing legislation. Any new law requires careful consideration and should not be rushed through as part of this particular legislative process. Thus I would submit that the proposed new section 24C(2) should be removed from the Bill.

They go on to state:-

…the Committee notes that a number of issues have been raised regarding the drafting of this section of the Bill, particularly with regard to the definition of a “decrofting direction”; the new section 24(C) which the Bill would insert into the 1993 Act; and the protecting of access to crofting land. The Committee recommends that the Scottish Government gives careful consideration to these specific issues ahead of Stage 2.

This is good. But a general declaration that the Scottish Government should not be creating new crofting law by virtue of the Bill but simply fixing the perceived ‘flaw’ created by the Crofting Reform (Scotland) Act 2010 would have been better. Furthermore, I made the same point in my submissions about the proposed new section 24D(3) to the 1993 Act. However, that seems to have been overlooked by the Committee.

Nul Points

Nul points for RACCE CommitteeThe Committee fell down, in my eyes, in certain areas where they achieve ‘nul points’. A number of submissions had raised the spectre of problems with decrofting by owner-occupiers who are not “owner-occupier crofters”. The Committee, to give them their due, did highlight the issue but unfortunately did not recognise the real significance of it. They said:-

The definition of what legally constitutes an owner-occupier crofter, and issues facing multiple owners of distinct parts of the same croft, seem, from the evidence submitted, to be the most pressing. However, the Committee is of the view that this Bill is not the appropriate place to seek to address such issues, given the urgency of the current problem, and the expedited process that is being sought to try and rectify the situation as soon as possible.

I would suggest, as I have previously, that leaving 700 owner-occupiers who are not “owner-occupier crofters” in decrofting limbo is a significant issue and one that could and should have been dealt with in the current Bill. There is also the ‘alien owner-occupier‘ issue that came to light after the date for receipt of submissions had closed. Notwithstanding that fact it was still brought to the attention of Committee members but unfortunately they did not consider it in their Stage 1 Report.

The impact of putting off dealing with these issues may only become fully apparent when the current Bill is enacted and it becomes clear that decrofting is still being prevented in situations where it simply should not be. Will we see, sooner rather than later, a Crofting (Amendment No. 2) (Scotland) Bill to resolve the plight of the 700 owner-occupiers who are being discriminated against by virtue of the Crofting (Amendment) (Scotland) Bill?

Overall Score

So with some 10 points, 5 points and ‘nul points’ I would, on balance, give the Rural Affairs, Climate Change and Environment Committee 6 out of 10 for their Stage 1 Report. They could have done better. However, no doubt they could have done worse.

Brian Inkster

[Picture Credits: Strictly Come Dancing © BBC (Photographer: Guy Levy) and Engelbert Humperdinck – Eurovision Song Contest 2012 © BBC]

Stage 1 Report on the Crofting (Amendment) (Scotland) Bill

Rural Affairs, Climate Change and Environment Committee

Rural Affairs, Climate Change and Environment Committee

The Rural Affairs, Climate Change and Environment Committee published their Stage 1 Report on the Crofting (Amendment) (Scotland) Bill on 31 May 2013. They summarised their findings as follows:-

1. The Committee regrets that an unintended consequence of omissions, and/or a lack of clarity in existing crofting legislation has led to the Crofting Commission suspending decisions on applications by owner-occupier crofters to decroft all or part of their land, as the Crofting Commission considered there was no legal basis on which to make such decisions. Such applications had been made, and decided upon, since October 2011, until the problem came to light earlier this year, and the suspending of consideration of such applications has prevented some owner-occupier crofters enjoying equal rights to tenant crofters, which was the policy intention of the existing legislation.

2. The Committee agrees that the legislation needs to be corrected and therefore welcomes the Scottish Government’s swift bringing forward of amending legislation which should not only remedy this issue for those making such applications to decroft in the future, but will also retrospectively apply to all those who previously made applications, or who currently have applications on hold as a result of the issue being identified.

3. However, whilst acknowledging that amending legislation is required, and that the Bill as drafted should address the identified problem, the Committee notes the considerable body of opinion, particularly from the legal profession, expressing the view that the Bill as drafted is unnecessarily complex and, in places, requires amendment in order to avoid further difficulties in legal interpretation in the future.

4. The Committee notes the significant number of other outstanding issues relating to crofting many believe require to be addressed by the Scottish Government following the conclusion of consideration of this Bill by Parliament.

5. The Committee was struck by the evidence it received from those knowledgeable in this area of the law, which demonstrated significant frustration and concern with the increasing complexity and layers of crofting law. Crofting law as it stands was described as “a mess” by more than one respondent to the Committee’s call for views.

6. The Committee makes specific comment on the provisions in the Bill in the main body of this report below. However, the Committee welcomes the policy intention of the Bill to rectify the anomaly which has been identified that currently prevents owner-occupier crofters from applying to decroft all or part of their land. The Committee therefore recommends that the Scottish Parliament support the general principles of the Bill at Stage 1, to allow the Bill to pass to Stage 2.

7. However, in doing so, it strongly recommends that the Scottish Government carefully considers any amendments which may be required to the Bill at Stage 2 to allow for full scrutiny (seeking information, evidence and advice on any legal issues as appropriate) to ensure that the Bill is clear and competent and does not add further complexity to an already complex body of legislation, or have the potential to give rise to further unintended consequences.

8. The Committee asks the Scottish Government to identify how it intends to address the other issues within crofting law which were brought to the Committee’s attention during its scrutiny of the Bill and to inform the Committee of how it intends to proceed. The Committee recommends that the Scottish Government indicates how it intends to address the wider criticisms that have been made, particularly by the legal profession, of the current state of crofting law as a whole.

Read the full Stage 1 Report on the Crofting (Amendment) (Scotland) Bill.

I will give my views on the Stage 1 Report in the next post on the Crofting Law Blog.

Brian Inkster

Decrofting Spin

Decrofting SpinPoliticians are good at spinning. No exception when it comes to crofting law.

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:-

The existing legislation clearly does not work as it was intended to do. Although some crofting lawyers, such as Brian Inkster, disagree, the concern that I have expressed is shared by others including Sir Crispin Agnew and Derek Flyn. The Commission’s legal advice appears to have drawn the same conclusion.

Not quite correct. As blogged about previously on this blog at the evidence gathering session by the same Committee on 15 May, Sir Crispin Agnew QC said:-

I think that the Bill will solve the particular problem by making it clear that the Crofting Commission can decroft owner-occupier crofts. Brian Inkster might well be right but Derek Flyn might well be right that he is wrong. Until a case has gone to the Land Court and it has made a determination, it is sensible to clarify the situation for the avoidance of doubt.

Sir Crispin did not therefore pass any opinion on whether the existing legislation worked as it was intended to do. He remained neutral on that point but was of the view that given the confusion surrounding the issue it was sensible to clarify it by way of amending legislation. On that point Sir Crispin, Derek Flyn and I are all in agreement. The challenge for Paul Wheelhouse is to deliver such amending legislation that does indeed work without leaving any further confusion. Let’s hope he concentrates on that and not on the spin.

Brian Inkster

[Picture Credit: Rainbow Humming Spinning Top from PoshTotty Designs]

Inksters’ submissions on the Crofting (Amendment) (Scotland) Bill

Crofting Law - Brian Inkster and Eilidh Ross

Brian Inkster and Eilidh Ross

Solicitors at Inksters have lodged submissions on the Crofting (Amendment) (Scotland) Bill with the Scottish Parliament.

Brian Inkster has submitted his views on the Bill in three parts. These have been published on this blog as five separate blog posts:-

Submissions (Part 1): A sledge hammer to crack a nut

Submissions (Part 2): An alternative Crofting (Amendment) (Scotland) Bill

Submissions (Part 3): Crofting is not a perfect word + The Crofting Law Hydra + Are owner-occupier crofters a sub-set of owner-occupiers?

Eilidh Ross has also submitted her views on the Bill: The Crofters (Scotland) Act 1993 is a mess

Since the deadline for providing submissions expired another decrofting problem has reared its head. Brian Inkster has blogged about it: Owners of croft land who are aliens to the Crofting Commission.

The Rural Affairs, Climate Change and Environment Committee are due to produce their Report on the Bill this forthcoming week. It is to be hoped that they take on board the Inksters’ submissions and the latest decrofting problem when compiling that Report.

Crofting (Amendment) (Scotland) Bill: A Sledge Hammer to Crack a Nut

Crofting (Amendment) (Scotland) Bill in Marrakech

A Surface, Cloud Technology and Mint Tea enable submissions on the Bill from Marrakech to Edinburgh

The Scottish Government decided to publish the Crofting (Amendment) (Scotland) Bill, and have a one week consultation period on it, all to coincide exactly with my one week holiday in Marrakech. I reluctantly packed the Bill as holiday reading. My wife, understandably, was not too amused by this turn of events. Crofting Law Bills don’t come along very often I assured her. Whereas, we can always have another holiday. Although, there may well be a spate of Crofting Law Bills to come in the wake of this latest one. Anyway, a good part of my ‘holiday’ was taken up considering the Bill albeit in warmer climes than the Crofting Counties. This resulted in three sets of submissions by me to the Rural Affairs, Climate Change and Environment Committee. The first of these is as follows:-

Submissions (Part 1) by Brian Inkster on the Crofting (Amendment) (Scotland) Bill

I would initially point out that I have, from the outset, been somewhat sceptical as to the need for the Crofting (Amendment) (Scotland) Bill (“the Bill”) as I believe that the existing law can be interpreted in such a way to allow owner-occupier croft decrofting (Vacant and ready, Journal of the Law Society of Scotland, March 2013).

I have also been vocal in expressing the opinion that the legal advice sought and obtained by the Crofting Commission on this subject should be made public (Top Secret Crofting Law, Crofting Law Blog).

To date crofting lawyers have had to operate in a vacuum over this issue as in the absence of sight of the legal opinion on what exactly the ‘flaw’ is in the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”) it is difficult to know what is being amended by the Bill and why.

On 28 March 2013, when Paul Wheelhouse MSP, Minister for Environment and Climate Change, announced in the Scottish Parliament that the Bill would be introduced after the Easter recess, Rhoda Grant MSP asked whether the Government would “publish its legal advice, so that solicitors can properly advise clients”. Paul Wheelhouse responded:-

 As far as legal advice is concerned, I am sure that Rhoda Grant knows the constraints that exist in that regard. In progressing the Bill, we will try to make it as clear as possible why we think that the legislation is flawed and what we need to do to rectify that. We will try to give as much clarity as possible on the rationale for the action that we propose to take.

I had hoped that such clarity and the rationale would appear in the Explanatory Notes to the Bill. Unfortunately, not a lot on this area is actually there to add to the scant information that was previously made available. In particular no mention is made of the interaction between section 23(12A) of the Crofters (Scotland) Act 1993 (“the 1993 Act”) and section 23(1) of the 1993 Act and their relationship with section 23(10) and/or section 24(3) of the 1993 Act. This is something I have specifically asked the Crofting Commission to address in correspondence but they have simply ignored me and not responded on this point. I can only assume that they do not actually know what the position is.

With section 23(12A) of the 1993 Act being amended but not removed by the Bill some explanation as to the purpose and intent of that section, as it now stands, would be useful. If the purpose of that section (as I saw it) was to deem an owner-occupied croft to be vacant but it did not in fact do so (if the legal advice sought and obtained by the Crofting Commission, which has not been disclosed, actually covers this point) then what is the continuing purpose of the said section 23(12A) when the Bill becomes an Act?

Paragraph 5 of the Explanatory Notes to the Bill acknowledge that prior to the introduction of the 2010 Act “owner-occupiers” could apply to decroft under section 24(3) of the 1993 Act and we are told to “see section 23(12) of that Act”. Section 23(12A) was introduced by the 2010 Act to the 1993 Act to extend the same provisions to “owner-occupier crofters”. However, no mention of this or the reason why the said section 23(12A) does not actually do this is given.

Paragraph 6 of the Explanatory Notes to the Bill states that:-

For the purposes of the decrofting provisions of the 1993 Act, section 23(10) was amended by the 2010 Act to provide that a croft is not vacant if it is occupied by the owner-occupier crofter.

That statement is not quite correct and is possibly misleading. The clause in question says that:-

…a croft shall be taken to be vacant notwithstanding that it is occupied, if it is occupied otherwise than by… the owner-occupier crofter of the croft

That does not mean (in my opinion) that an owner-occupied croft can never be vacant and that other provisions of the 1993 Act cannot make such a croft vacant for the purposes of decrofting.

If, however, that interpretation can be put on the said section 23(10) and this is the ‘flaw’ that Paul Whellhouse has been referring to then is there not a simpler way to amend the legislation rather than the rather convoluted way it has been presented in the Bill? Would it not be the case of simply having one clause (say a new section 23(10A) to the 1993 Act) along the following lines:-

Notwithstanding the terms of subsection (10) above an owner-occupied croft will always be vacant for the purposes of decrofting under section 24(3).

This one sentence could in effect replace the proposed new sections 24A, 24B, 24C and 24D to the 1993 Act (section 1(2) of the Bill) and make the reading and understanding of it so much easier.

Paragraph 6 of the Explanatory Notes to the Bill goes on to state:-

Other owner-occupiers of crofts, who were not owner-occupier crofters were unaffected and they could still, and still can, apply to decroft as if they were landlords of vacant crofts.

This is another potentially incorrect and misleading statement. The Crofting Commission issued on 18 February 2013 the following statement:-

Decrofting and Letting applications where a croft is owned by more than one person

There was uncertainty in situations where the owners hold separate title to distinct parts of a croft, whether an application to decroft or let could be:

  • Made separately by an individual owner in respect of the distinct part of the croft they own, or
  • If such an application has to be made by all the owners of the croft in their capacity as, collectively, the ‘landlord’ of that croft.

The Crofting Commission took the view that it was essential to have clear policy on this issue. The Commission therefore, in order to clarify the situation, sought and obtained legal opinion on the practice of accepting applications submitted by only one of the croft owners where the croft is held in multiple separate ownership ‘parcels’.

The matter was discussed at their Board meeting on 14 December 2012 and Commissioners agreed to adopt a policy that all decrofting and letting applications in respect of crofts with multiple owners, must be submitted by all the owners, in their capacity collectively as the ‘landlord’ of the croft, even in those cases where the application related to a part of the croft held in title by only one of their number.

Any application received in future from one of the owners, where a croft is held in multiple ownership, will be considered invalid and returned on the basis that the application was not submitted by the landlord of the croft.

It is submitted that this was not the intention of the 2010 Act (i.e. to change the position of owner-occupiers as opposed to owner-occupier crofters in respect of the right of an owner-occupier to decroft land belonging to them). In effect if there are several owner-occupiers of distinct parts of what was originally one croft why should one of those owner-occupiers require the consent of the other owner-occupiers to decroft land that only they own. The policy introduced by the Crofting Commission means that one neighbouring owner-occupier can in effect prevent another from decrofting. Thus, contrary to what the Explanatory Notes to the Bill state, owner-occupiers of crofts, who are not owner-occupier crofters, are affected and cannot (in certain circumstances) apply to decroft as if they were landlords of vacant crofts.

My own view is that the Crofting Commission may have got it wrong again and that decrofting by owner-occupiers is, as it always has been, fully covered by section 23(12) of the 1993 Act. This was not altered in any way by the 2010 Act. However, if the Crofting Commission are correct then the Scottish Government needs to do something about it at the same time as fixing the ‘flaw’ for owner-occupier crofters. It would be inequitable to treat the two differently. Furthermore, if the Crofting Commission are correct then it follows that decrofting directions granted by them to owner-occupiers after 1 October 2011 (possibly arguably before that date) and 18 February 2013 could be invalid. The Scottish Government would need to seek to remedy that situation retrospectively as it has done in the Bill in respect of owner-occupier crofters. Not doing so leaves owner-occupiers and their lenders exposed in a similar way as owner-occupier crofters and their lenders currently find themselves pending the Bill becoming an Act.

Jamie McGrigor MSP asked, in the Scottish Parliament, on 28 March 2013:-

Will the legislation clarify the legal position on decrofting a croft that has been divided? The Crofting Commission say that people who own part of a croft cannot decroft in that part without the concurrence of the neighbours who own the remainder of what was the original croft.

Paul Wheelhouse MSP did not have an immediate answer to this question but the Minister promised to write a letter to Mr McGrigor to provide clarity on this point and undertook “to address the matter”. This letter was not written until 10 May 2013 (the day after the Bill was introduced). It reads:-

Dear Jamie

Thank you for your e-mail of 9 May 2013 seeking the clarification that I undertook to write, after my statement to Parliament on 28 March 2013 on decrofting by owner-occupier crofters, on the issue of “divided” crofts. I am extremely sorry that it has not been possible to provide a much earlier response.

The issue you raised relates to situations where a croft has a number of owners, rather than where a croft has been divided through regulatory application to the Crofting Commission. In that latter situation, a croft would have essentially become two, or more, crofts with a separate identifiable tenant or owner-occupier for each. In such a situation, a tenant would be able to apply to decroft and the Bill to be introduced is designed to empower an owner-occupier crofter to also be able to apply to decroft.

In instances of joint ownership of a croft that has not been formally divided, the Crofting Commission decided, at its Board meeting on 14 December 2012, that in order to regulate crofting properly and ensure the integrity of the crofting unit, an application to decroft should be from the landlord of a croft. As it has been relayed to me the Crofting Commission took legal advice, and based upon that advice has concluded that where a number of individuals own different parts of a croft, which has not been formally divided by the Commission, they together constitute the “landlord” of the croft for regulatory purposes.

As such, an application in respect of an undivided croft affects a number of persons who, taken together, are the “landlord”. In order to properly consider an application relating to such an undivided croft, the Commission feels it necessary, on legal advice it received, to seek the views of all the joint owners of the croft.

I hope this is helpful.

PAUL WHEELHOUSE

Unfortunately, Paul Whelhouse avoids the actual question asked by Jamie McGrigor and simply sets out the Crofting Commission’s policy which was already known. Reference by Paul Wheelhouse to “divided” crofts requires some greater understanding and explanation. It was only by the 2010 Act (section 34 which introduced inter alia a new section 19D to the 1993 Act) that an owner-occupier crofter was, for the first time, compelled to seek the consent of the Commission to divide their croft. Prior to this new provision coming into force no such consent was required.

I do not believe that it could have been the intention of the Scottish Parliament to create two separate types of divided crofts with different rules applying to each. There is no good reason why pre-2010 Act ‘divided’ crofts should be treated differently from post-2010 Act ‘divided’ crofts.

As a result of the Crofting Commission’s legal interpretation of the position, and as already stated previously by me above, decrofting directions already granted by the Crofting Commission to owner-occupiers (as opposed to the newly defined owner-occupier crofters) could be invalid. Furthermore, the Crofting Commission are now effectively preventing owner-occupier decrofting  in circumstances where they believe a neighbour’s consent may be required (something that the 2010 Act and previous crofting legislation certainly does not spell out).

The focus of the Bill is resolving ambiguities created by the 2010 Act in connection with decrofting but this has been specifically limited by the Scottish Government to ‘owner-occupier crofters’. It is completely inequitable not to include ‘owner-occupiers’ in this focus as they are, in certain circumstances, also being prevented from decrofting land that they own. The tweaks required to the Bill (especially if a simplified drafting approach was taken) to resolve this anomaly would be minor and I would urge the Scottish Government to actually consider the potential problem at hand and the consequences of doing nothing about it.

I have already stated that the Bill could be condensed dramatically in size and complexity by a more straightforward and simple approach to the drafting of it. Arguably, what has been created is a sledge hammer to crack a nut. Crofting Law is complex at the best of times. The Scottish Government should be seeking where possible to make it easier to understand and thus avoid the need for amending legislation due to the different interpretations that can be given to complexly drafted provisions.

If, however, the will of the Scottish Parliament is to stick with the unnecessarily complex approach I would comment on the clauses in the Bill, as currently drafted, as follows:-

Clause 1(2) – inserting 24A

There is no definition of “decrofting direction” in section 61 of the 1993 Act. Should we have a definition distinctly for owner-occupier crofters and not one for others who can legitimately seek a ‘decrofting direction’? Again good reason for linking owner-occupied croft decrofting with the existing  decrofting provisions rather than creating new ones.

Clause 1(2) – inserting 24B

Reference is made in the new section 24B(2) to section 26J of the 1993 Act. However, I believe there to be a possible flaw in the 2010 Act (yes another one) in that there is no link between section 26J and section 19C of the 1993 Act. This could cause general problems for the Crofting Commission in any event and specific ones with regard to the Bill now linking a further clause to a section in the 1993 Act that possibly makes no sense in the first place.

Clause 1(2) – inserting 24C

The proposed new section 24C to the 1993 Act is a very contrived provision. The simplified approach to drafting already suggested would dispense with the need for this. The alternative is to set out in full the provisions that apply rather than chopping and changing the existing section 25 of the 1993 Act.

The proposed new section 24C(2) to the 1993 Act appears to be new law in that I cannot see why the existing section 25(1)(b) cannot equally apply as it stands to owner-occupied crofts. There should be no place for new law in the Bill rather than a necessary fix of existing legislation. Any new law requires careful consideration and should not be rushed through as part of this particular legislative process. Thus I would submit that the proposed new section 24C(2) should be removed from the Bill.

With regard to the proposed new section 24C(3) to the 1993 Act there should be nothing to prevent the legislation declaring the croft to be vacant notwithstanding the terms of section 23(10) of the 1993 Act. Why create two classes of possible outcome i.e. vacancy or revocation rather than just the one?

Clause 1(2) – inserting 24D

A simplified drafting approach to the Bill would avoid the need for the proposed section 24D to the 1993 Act with reliance being given to the existing section 24(3) of the 1993 Act.

I am unsure whether the proposed new section 24D(3) to the 1993 Act reflects existing legislation in the 2010 Act in respect of existing decrofting procedures. I have been unable to readily locate such provisions and there is no indication of the position in the Explanatory Notes to the Bill. If it does, then fair enough, although again linking the new legislation to the existing provisions would be preferable to stand alone clauses. If it does not then the Bill is no place for new law for reasons already given above in respect of the proposed new section 24C(2) to the 1993 Act.

Clause 2

A simplified approach to the drafting would avoid the need for most, perhaps even all, of the proposed consequential modifications in the Schedule to the Bill as referred to in clause 2 of the Bill.

Clause 3

It is good to see retrospective effect and application in the Bill given that the Crofting Commission’s staff were telling potentially affected parties that they had nothing to worry about because previously granted decrofting directions were granted in good faith and so would be valid. However, as one commentator on the Crofting Law Blog has pointed out the drafting of clause 3 could be clearer:-

That’s the sort of Sir Humphrey Appleby nonsense that gives the law and legislative process a bad name. Go ahead with this short bill in these terms now to correct the problem in the short term (so long as they’re SURE that gobbledygook actually does correct it) but only on the strict understanding a comprehensible bill to consolidate crofting legislation will be introduced asap.

[Neil King commenting on Crofting (Amendment) (Scotland) Bill Published at the Crofting Law Blog]

I would tend to agree and would have thought that a simple statement along the following lines would have sufficed:-

All decrofting directions granted by and applications made to the Commission in respect of applications to decroft made by owner-occupier crofters from 1 October 2011 until the coming into force of this Act are valid and enforceable.

Clauses 4, 5, 6 and 7

I have no particular comments to make on clauses 4, 5, 6 and 7 of the Bill.

Other Problems with the 2010 Act

There are other problems created by the 2010 Act which I will not go into in any great detail here but merely highlight:-

  • The 2010 Act did not provide for the purchase of a tenanted croft being a trigger that induces first registration in the Crofting Register.
  • Many issues and conflicts were created regarding owner-occupier crofters when compared with owner-occupiers (some have been referred to in these submissions but others exist that also      require a resolution).
  • No equivalent of sections 5(3)-(6) of the 1993 Act was provided for owner-occupier crofters creating difficulties for developments proposed on owner-occupied crofts and in particular wind farm developments.

There is a need for legislation to resolve these issues. It is appreciated that the Bill may not be the place to do so given the need for that particular legislation to be progressed with all due haste. However, the Scottish Government should give a commitment to introduce a further bill dealing with all of the other anomalies created by the 2010 Act as soon as possible following the Summer Recess.

Summary

My views on the Bill can be summarised as follows:-

  • The Bill as drafted is a sledge hammer to crack a nut and could be simplified in its drafting to a huge extent.
  • There appears to be attempts to introduce new law via the Bill. That should not be the purpose of the Bill which is to fix ‘flaws’ in the existing legislation created by the 2010 Act.
  • The problems associated with decrofting by owner-occupiers (as opposed to owner-occupier crofters) should also be addressed in the Bill.
  • A commitment should be given by the Scottish Government to introduce a Bill following the Summer Recess to deal with the various other anomalies in crofting law created by the 2010 Act.