Tag Archives: Rob Gibson MSP

Back to the Future of Crofting

But Doc, nothing has changed in 10 years!

If you were to travel back in time 10 years ago to the day you would find a headline in The Scotsman that read ‘MSPs heap pressure on Crofters’ Commission with criticism of bill‘.

It was 5 July 2006 and on that day the Scottish Parliament’s Environment and Rural Affairs Committee released its findings on the Crofting Reform Bill after taking evidence at five meetings that year.

Some salient points from The Scotsman’s report from then:-

Critics of the commission during the evidence-gathering sessions included the National Trust for Scotland, which said the commission’s work is regarded as “inconsistent and ineffective”. The Scottish Crofting Foundation also gave an example of the “long-term regulatory failure” in one township where 11 out of 19 croft holders are absentees despite demand from prospective new entrants.

The report adds: “The committee was struck by the range of negative comments and the depth of frustration and long-standing dissatisfaction expressed by witnesses about the commission’s practice.”

It also said it was “astonished” a proper register of crofts has not been produced despite it being a statutory obligation on the commission for over 50 years.

Rob Gibson, the SNP’s land reform spokesman, said the bill offers no vision for the future of crofting and said successive governments had failed to ensure the commission does it job.

The report in The Scotsman also mentioned Brian Wilson, the former Government Minister, saying of the report:-

The whole thing has turned into an indictment of the Crofters’ Commission and its failure to implement its regulatory role. I think they [the commission board] should now consider their positions.

Fast forward 10 years and not much has changed. It is now called the Crofting Commission as opposed to the Crofters Commission. Similar but perhaps more acute criticism is being laid at its door. Indeed, I was speaking to a crofter just today who said that the Crofting Commission of 2016 is much worse than its predecessor, the Crofters Commission, was 10 years ago.

Headlines in the news over the past few weeks have included:-

Crofting Comission branded as ‘dictatorial, vindictive and unjustified’ by Upper Coll crofters

Row between national body and local crofters on Lewis deepens

Crofting Commission ‘flouting the will’ of Parliament

Crofting commissioner resigns in Lewis grazings row

Pressure grows on Crofting Commission as row over committees continues

Demands intensify for inquiry into operations of Crofting Commission

Crofting Commission “cover-up” blasted

Sleat storm surrounds Crofting Commission

Crofting Commission’s Mangersta U-turn welcomed, but calls for government investigation continue

It was in the wake of the near collapse of the Crofting Reform Bill in 2006 that pressure from the Scottish Crofting Federation led to Scottish Ministers commissioning a Committee of Inquiry on Crofting. This was chaired by Professor Mark Shucksmith. The Committee of Inquiry on Crofting undertook many community meetings throughout 2007 and delivered their final report in 2008.

The Shucksmith Report commented on the Governance of Crofting as follows:-

Crucial issues for the governance of crofting are transparency, source of legitimacy, accountability and the balance of central and local interests. Centralised arrangements,
together with a lack of clear functional boundaries between the key institutions, particularly
between the Crofters Commission and the Scottish Government, cloud the lines of public
accountability for the effective governance of crofting. Recurring themes in the evidence
were that the Commission should be more accountable; have greater area representation;
should enforce regulations more effectively; should be better aligned with other relevant partners; and should have closer communication with local people and Grazings Committees.

All issues that appear to remain today. Perhaps that is because in introducing the Crofting Reform (Scotland) Act 2010 the then Scottish Parliament ignored many of the recommendations actually contained in the Shucksmith Report.

There is currently a major crisis in crofting. The consensus of opinion appears to be that the problems are caused by the Crofting Commission and the decisions taken by them and manner in which they execute those decisions.

A recent online poll conducted by The Scottish Farmer indicated that 96% of readers who took part considered that the Scottish Government should enact an independent inquiry into the workings of the Crofting Commission.

The Scottish Farmer in conducting this poll stated:-

The level of criticism has mounted so quickly that it is now incumbent on the Scottish Government to institute an independent external audit of the commission.

And, if the Crofting Commissioners feel the criticism to be unjust, they too should welcome independent scrutiny of their actions.

One thing is for sure, Scottish ministers cannot continue to sit on their hands on this one. Action must be taken swiftly and decisively!

I sincerely hope that in 10 years from now we don’t look back and say that nothing has really changed and indeed the situation at the Crofting Commission has got worse not better. The Scottish Government has the opportunity to change the future and must now do so.

Brian Inkster

Image Credit: Back to the Future © Amblin Entertainment

Crofting Law and the new Scottish Government

Political Consensus on the need for Crofting Law Reform

Crofting Law Conference 2013 in Tweets

Crofting Gobbledygook

2 Replies

Will the Scottish Land Court have to decipher the Crofting (Amendment) (Scotland) Act 2013?

The Scottish Parliament has voted to pass the Crofting (Amendment) (Scotland) Bill. In due course, it will receive Royal Assent. Owner-occupier crofters will be able to decroft, and the Scottish Government will breathe a sigh of relief that the decrofting debacle has been buried. However, this bill has been far from the Scottish Government’s finest hour. The bill has added a further layer of complexity to a legislative framework I have previously, publicly, labelled a mess and a shambles. The Act will result in the Crofting Commission processing applications once again, but the decrofting provisions are now so incomprehensible that it can only be a matter of time before they are challenged in the Courts. Then we shall hear accusations that solicitors are getting fat on the ever-diminishing bank accounts of crofters. The time and effort taken by myself and by other professionals in this field indicate that we have an interest in clarifying legislation to avoid crofters facing high legal costs. Yet the Scottish Government saw fit to ignore all submissions and suggestions, however helpful they may have been. The quality and clarity of the Bill could have been far improved, had the Scottish Government accepted help from those best placed to provide it. Sooner or later, we will all simply stop responding to consultations and will have no heart to contribute to the parliamentary process.

Furthermore, this Bill has given birth to a fresh debate over wider crofting legislation. I have long been of the view that crofting legislation should be left alone for a time, to bed in, and to allow a body of case law to become established. However, in light of the 2013 Bill I have changed my view, and I have called for an overhaul of all crofting legislation. The numerous problems which have become apparent with the Crofting Reform (Scotland) Act 2010, coupled with the prospect of yet more impenetrable sections (when a few simple sections would have achieved the same effect), made me despair that the current framework could ever work. There are simply too many problems to overcome; the decrofting uncertainty was merely the tip of the iceberg. I do not suggest another evidence-gathering committee in the mould of Professor Shucksmith, but it is both possible and desirable to deconstruct the legislation and rebuild it so that it makes sense and is, to use a phrase so beloved of government, ‘fit for purpose’.

Rob Gibson MSP appeared to have taken offence at my labelling of the legislation as a “mess” and a “shambles” but I stand by my remarks, and I refute his comment that crofting law is merely “complex”. Most areas of law are complex, and solicitors are trained to operate in such an environment, but crofting law since the Crofting Reform (Scotland) Act 2010 – which his Government must take responsibility for and cannot be blamed on inheritance – has become incomprehensible, not merely complex. I urge Mr Gibson to listen to the suggestions offered by experienced professionals, rather than taking the defensive stance we saw in the debating chamber yesterday afternoon.

Eilidh I. M. Ross

808 not 700 owner-occupiers who are not owner-occupier crofters

1 Reply

At the stage 1 debate on the Crofting (Amendment) (Scotland) Bill on 6 June 2013 the following exchange took place between Rob Gibson MSP and Paul Wheelhouse MSP, Minister for Environment and Climate Change (with responsibility for crofting):-

Rob Gibson asked:-

How many people are in this multiple owner situation and how many are caught up in these decrofting problems? Does that, too, conform to the 80:20 principle?

Paul Wheelhouse responded:-

Estimates of the numbers involved vary. To pick up Alex Fergusson’s earlier point, I believe that there are between 3,000 and 4,000 owner-occupier crofter crofts and know that the figure of 700 has been bandied about for crofts in multiple ownership. We believe that the actual figure might be slightly higher, at 808, but if it will assist, we can clarify the exact number for the committee and members as we move towards stage 2. The issue is another that falls outwith the scope of the bill but which we recognise needs to be addressed, and I hope that members whose constituents are affected will note that. The bill deliberately has a tight focus to address a key issue and our view is that, unfortunately, any deviation to cover such a substantive issue would not necessarily respect the expedited procedure that is being applied to the bill, on which there is clearly a consensus to address the existing decrofting issue.

The figure of 700 was not really bandied about as such. It was an unknown figure when the question was first asked of the Scottish Government on 15th May and one that was supplied at a later date (22nd May) by an official from the Crofting Commission. One would have thought, at the time, that this would therefore have been a fairly accurate and reliable figure. However, as we have seen it is a moving target as the Crofting Commission check and reduce the number of owner-occupier crofters thus increasing the number of owner-occupiers who are not owner-occupier crofters. Paul Wheelhouse recognises that 808 may not be the exact number and this has still to be clarified. It is amazing that we are now so many weeks down the line and such clarity has still to be given.

Paul Wheelhouse did not answer the second part of Rob Gibson’s question, i.e how many owner-occupiers (who are not owner-occupier crofters) are caught up in decrofting problems. Rob Gibson had asked the same question on 22nd May and at that time Paul Wheelhouse said:-

I am happy to try and establish, after the meeting, whether there are any statistics that would give us an idea about how many crofters might be affected. I apologise that I do not have the numbers in front of me now.

This, I would suggest, is a more important figure to be clarified than the total number of owner-occupiers in existence. Perhaps MSPs need to press for an answer on this question at the final debate on the Crofting (Amendment) (Scotland) Bill on Tuesday 25th June. It has been dodged by the Minister at least twice now during the passage of the Bill. It may not be directly relevant to the Bill as the Bill does not deal with those decrofting problems. But it might highlight the real need for a swift Crofting (Amendment No. 2) (Scotland) Bill to resolve the plight of the owner-occupiers, not to mention the ‘aliens‘, who still will not be able to decroft once the first of those two Bills becomes an Act.

There was also an implication by Paul Wheelhouse that this is a new decrofting issue. It should be remembered that the decrofting problem faced by owner-occupiers actually pre-dates the one faced by owner-occupier crofters albeit by 7 days.

Brian Inkster

700 owner-occupiers of croft land to be left in limbo

7 Replies

At the evidence gathering session for the Crofting (Amendment) (Scotland) Bill of the Rural Affairs, Climate Change and Environment Committee on 22 May the Convenor, Rob Gibson MSP, asked:-

I have a small point about Richard Frew’s answer to my question at last week’s meeting about the number of multiple owners of crofts. When I asked whether he had a ballpark figure, he said: “I am not aware of the exact figures, but I am sure that the Commission has a list of the different types of crofter.”

Can we take that answer any further just now?

I have already given my views on that response by Richard Frew at Crofting is not a perfect world

Paul Wheelhouse MSP said:-

I will ask Joe Kerr to comment on that. He is on secondment from the Commission, so he may be more closely involved with the issue.

Joseph Kerr gave the answer we have all been waiting for:-

An exercise was undertaken that looked at the different status of people in the crofting elections. In terms of multiple ownership, I understand that the figure was around 700, and that the ballpark figure for owner-occupier crofters was between 3,000 and 4,000.

So there we have it. There are 700 owner-occupiers compared to say 3,500 owner-occupier crofters. Thus, due to the interpretation put on the Crofting Reform (Scotland) Act 2010 by the Crofting Commission, one sixth of owner-occupiers (if for present purposes we take it that owner-occupier crofters are a sub-set of owner-occupiers) potentially cannot decroft land they own. Furthermore, they still will not be able to following the enactment of the Crofting (Amendment) (Scotland) Bill which, as currently drafted, addresses only decrofting by owner-occupier crofters and not decrofting by owner-occupiers who are not owner-occupier crofters. One-sixth is surely a fairly significant proportion to simply ignore? There is, of course, an argument that if only one person could not decroft due to a flaw in the existing legislation that flaw should be fixed so that one person was not discriminated against compared with the other 4,199 people who could decroft.

Are owner-occupier crofters a sub-set of owner-occupiers?

3 Replies

Are they really crofters?

At the evidence taking session on the Crofting (Amendment) (Scotland) Bill on 15^th May the Convenor, Rob Gibson MSP, asked whether there were any views on my argument that the Bill is not needed?

Richard Frew stated:-

Yes—we have considered Brian Inkster’s view. It is not surprising that different people reach different conclusions on the issue, as a number of people who are involved in this have done. It is clear to us that, although that issue is worth considering, section 23(10) of the 1993 Act clearly sets out that a croft is not vacant if an owner-occupier crofter is on the croft.

Unfortunately, Richard Frew ignores any exploration of section 23(12A) of the 1993 Act but there again that has been a continual failing of both the Crofting Commission and the Scottish Government throughout this process. However, Derek Flyn took up the cudgel on section 23(12A):-

When I brought the matter to the Crofting Commission’s attention, Brian Inkster’s response was pretty immediate. However, having looked very closely at the Crofters (Scotland) Act 1993, as amended, I think that he has missed one thing. The requirement for an owner-occupier to report to the Commission within a month of becoming an owner-occupier is contained in section 23(12) of the 1993 Act, but there is also section 23(12A), which seems to talk about an owner-occupier crofter as a subset of owner-occupiers.

I am sorry—I realise that the issue is complicated, and I know that most people’s eyes glaze over when I start to talk about it. The point is that owner-occupiers are not entitled to occupy their crofts, which can therefore be held to be vacant, and they can be asked to take tenants. However, owner-occupier crofters are entitled to occupy their crofts and must intimate to the Commission the fact that they are owner-occupier crofters. Instead of their being persons who have to give notice, they are persons who give notice as owner-occupiers as well as intimating the fact that they are owner-occupier crofters. I think that Brian Inkster has missed the fact that owner-occupier crofters are a subset of owner-occupiers. The matter is very complicated but, having looked at it many times since Christmas, I cannot see how one can be persuaded that an owner-occupier crofter could have a vacant croft.

The two things that are needed for decrofting are an application by a landlord or landowner and a vacant croft. Although an owner-occupier crofter could be seen as a landlord under the legislation, he certainly could not have a vacant croft.

If your eyes have not glazed over and you are still reading this then I do not believe that owner-occupier crofters are a sub-set of owner-occupiers. Indeed to the contrary an owner-occupier crofter appears to have received special status by way of the Crofting Reform (Scotland) Act 2010 setting them into a category of their own that is very distinct from owner-occupiers. You need look no further than the current controversy over problems associated with applications to decroft by owner-occupiers as opposed to by owner-occupier crofters.

Section 23(12A) is one of those deeming provisions in the 1993 Act which often seem to cause difficulties in understanding and interpretation. It quite simply deems an owner-occupier crofter to have a vacant croft for the purposes of decrofting under section 24(3) of the 1993 Act. If that is not the purpose and intent of section 23(12A) what does that section actually do and why was it introduced by the 2010 Act?

However, as Sir Crispin Agnew QC diplomatically put it:-

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.

That is indeed where we are at and we shouldn’t, at the moment, whilst some redrafting of the Bill is necessary and hopefully in hand, spend much time debating whether or not the Bill was necessary. There may be a place for a post mortem after the Bill becomes an Act to see if things could have been done differently by the Crofting Commission and or the Scottish Government when the ‘problem’ first manifested itself. From that lessons may be learned for the future to hopefully avoid such a situation arising again.

[NB: This blog post forms part of Submissions (Part 3) by Brian Inkster on the Crofting (Amendment) (Scotland) Bill. See Crofting is not a perfect world and The Crofting Law Hydra which both also form part of those Submissions (Part 3). In addition see Submissions (Part 1): A Sledge Hammer to Crack a Nut; and Submissions (Part 2): An Alternative Crofting (Amendment) (Scotland) Bill]

[Picture Credit: SUbSET via The Presidents of the United States of America]

Crofting is not a perfect world

5 Replies

If we lived in a perfect world would we have had the Battle of the Braes or any need for crofting law?

At the evidence taking session on the Crofting (Amendment) (Scotland) Bill on 15^th May there was an exchange between Tavish Scott MSP, Richard Frew (Scottish Government) and Rob Gibson MSP that was quite enlightening on the Government’s stance on the problems associated with decrofting applications by owner-occupiers as opposed to by owner-occupier crofters. It would appear that the Government does not consider, as Tavish Scott perhaps does, this to be a “significant” issue.

I rather think this is because the Scottish Government has simply not thought through the consequences of the Crofting Commission’s stance on this issue. As I have indicated before now, owner-occupiers are, in certain circumstances, being quite simply prevented from decrofting. Furthermore it is arguable that decrofting directions issued by the Crofting Commission between 1 October 2011 and 18 February 2013 to owner-occupiers are, in certain circumstances, invalid with all the consequences that flow from that not only for those owner-occupiers but also for third party purchasers and lenders who have relied on the decrofting directions in question. That is not significant?!

Richard Frew appeared to suggest that the matter was perhaps adequately covered by the fact that “people who were, in effect, owner-occupiers prior to the 2010 Act can apply jointly to the Commission, as long as they do it collectively as landlords.”

Tavish Scott quite rightly rebounded that:-

The point is that those people are not agreeing to act jointly in that way. If that was happening, I would agree with you entirely.

The quite surprising response by Richard Frew to this was:-

I would hope that everybody would be able to work together at some point to recognise the benefits.

To which Tavish Scott replied:-

We do not live in a perfect world, Mr Frew.

Indeed we do not. If we did then perhaps we would have the Crofting Commission working together with crofters by interpreting crofting legislation in a way that was to their benefit rather than to their detriment!

Richard Frew’s response does, of course, ignore the question of the potentially invalid decrofting directions that may be out there.

On the question of when will this issue be dealt with Richard Frew stated:-

When and whether we address that, and whether particular legislation is introduced at any time is really a matter for the minister, rather than for civil servants, to determine.

We all know that the minister will base his decisions on advice received from civil servants and it is somewhat worrying if the civil servants are not up to speed with what the problems actually are. In particular Rob Gibson asked:-

That is an interesting issue that might affect some crofters. We do not know how many—unless Mr Frew can give us a ballpark figure at the moment.

The response from Richard Frew was:-

I am not aware of the exact figures, but I am sure that the Commission has a list of the different types of crofter.

How can the Government state that this is not a significant issue when they have no figures at their fingertips regarding the number of people affected by it? Surely this should have been fundamental research in deciding whether or not to include this issue in the Crofting (Amendment) (Scotland) Bill?

[NB: This blog post forms part of Submissions (Part 3) by Brian Inkster on the Crofting (Amendment) (Scotland) Bill. See also Submissions (Part 1): A Sledge Hammer to Crack a Nut; and Submissions (Part 2): An Alternative Crofting (Amendment) (Scotland) Bill]

[Picture Credit: The painting (1994) by Douglas Chowns is in the Collection of Sabhal Mòr Ostaig. It shows the artist’s imagining of the famous ‘Battle of the Braes’ that took place in Skye in 1882. It was part of a long struggle for crofters throughout the Highlands to win fair rents and security of land from the landowners during the nineteenth century.]

Crofting Law Blog

From Inksters Solicitors