Tag Archives: Rob Gibson MSP

Back to the Future of Crofting

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

Crofting Law and the New Scottish Government

How does the election results affect the future of crofting law?

Today’s Scottish Parliamentary election results saw the SNP form a minority administration with 63 seats. The Scottish Conservatives came second and form the opposition with 31 seats. Scottish Labour were in third place with 24 seats followed by the Scottish Green Party on six and Scottish Liberal Democrats on five.

What does this mean for the future of crofting law?

The SNP Manifesto states:-

Modernising Crofting

Crofting plays a unique role in Scotland’s Highlands and Islands heritage, bringing distinct social, economic and environmental benefits to communities. We will continue to provide public support for the continuation of crofting and to secure thriving crofting communities.

We will also introduce a new entrant’s scheme for crofting, explore the creation of new woodland crofts and publish a National Development Plan for Crofting.

Croft housing grants have been increased and we will continue to target support at those most in need. We will also re-introduce the Croft House Loan Scheme.

Crofters have long been concerned at overly complicated and outdated legislation so we will modernise crofting law and make it more transparent, understandable and workable in practice. We will also ensure new community landowners are not left out of pocket due to registering as the new landlord of crofts within their community owned estate.

So there is a clear commitment to “modernise crofting law and make it more transparent, understandable and workable in practice”. This must mean a new Crofting Bill being introduced during the next parliamentary term.

At the Crofting Law Group Conference in March there was clear cross-party agreement on the need for crofting law reform. So I can’t see any opposition to the introduction of a new Crofting Bill.

The last Minister for Environment, Climate Change and Land Reform (with responsibility for crofting) was Dr Aileen McLeod MSP. She failed to win the Galloway and West Dumfries constituency seat and missed out on getting a South Scotland Regional seat in the list vote. So inevitably there will be a new Minister for Environment, Climate Change and Land Reform.

Perhaps with a new Crofting Bill in the offing and the dreadful problems within the Crofting Commission that the new Minister has to tackle it is time for Nicola Sturgeon to appoint a dedicated Crofting Minister? Preferably one with a seat in the crofting counties.

Who will be the political voices we will now hear speaking up for crofting law reform and investigation of the alleged abuse of power within the Crofting Commission?

Gone from Holyrood are the strong voices on crofting that came from Jamie Mcgrigor (Conservative), Rob Gibson (SNP), Jean Urquhart (Independent) and Dave Thompson (SNP). We will also miss Alex Fergusson (Conservative) who thought that crofting law is a complete mystery but amused us with his analogy of ‘The Crofting Law Hydra‘.

Returned to Holyrood are Tavish Scott (Liberal Democrat) and Rhoda Grant (Labour). Both of whom participated in Crofting Question Time at the Crofting Law Group Conference in March expressing strong views on the “mess” that is crofting law. I can’t see them holding back on the latest “mess” of ‘The Common Clearances‘.

New to Holyrood are Donald Cameron (Conservative) and Andy Wightman (Green Party). Again they both participated in Crofting Question Time at the Crofting Law Group Conference. Donald Cameron said there that it was “time for crofting law to be for the crofters and not the lawyers”. I think that ‘The Common Clearances’ is a clear testament to that sentiment.

Helping the SNP with the Crofting Bill, and routing out the alleged abuse of power at the Crofting Commission, must surely be all SNP MSPs within the crofting counties. Alasdair Allan (Western Isles) has already spoken out about ‘The Common Clearances’ with two ‘sacked’ grazings committees, that we know of, being within his constituency. Other SNP MSPs in the crofting counties include long time politician Michael Russell (Argyll and Bute) and newbie Kate Forbes (Skye, Lochaber and Badenoch), who I had the pleasure of discussing The Crofting Law Sump with at The Future of Crofting Conference in December. Maree Todd took the SNPs only Regional Seat in the Highlands & Islands so I would think she will take an active interest in crofting law which will affect many of her constituents.

The first opportunity for the new MSPs to flex their muscles on crofting matters might be the Cross-Party Group on Crofting at Holyrood. Expect a large attendance.

Brian Inkster

Image Credit: © BBC

Political Consensus on the need for Crofting Law Reform

Crofting Question Time - Crofting Law Conference 2016

 

At the Crofting Law Conference (organised by the WS Society and the Crofting Law Group) held in the Signet Library, Edinburgh yesterday there was cross-party agreement on the need for crofting law reform.

Trudi Sharp, Deputy Director of Agriculture, Rural Development and Land Reform, in the Scottish Government stood in at the last minute for Dr Aileen McLeod MSP, Minister for Environment, Climate Change and Land Reform, who was unfortunately unwell and unable to deliver the keynote address on behalf of the Government.

Trudi Sharp - Crofting Law Conference 2016Trudi Sharp indicated that she had yet to speak to anyone who would disagree with the sentiment that there was a need to simplify crofting legislation. She said:-

The Minister is clear that crofting legislation should be well thought through with stakeholders and deliver law that is modern, simple and fit for purpose.

Crofting Law Conference 2016 - Views from the OppositionThe Conference heard the views of the opposition from Rhoda Grant MSP, Scottish Labour; Tavish Scott MSP, Scottish Liberal Democrats; Donald Cameron, election candidate for Scottish Conservative and Unionist Party; and Andy Wightman, election candidate for Scottish Green Party.

Crofting Law Conference 2016 - Jean Urquhart MSPThis was followed by ‘Crofting Question Time’ moderated by Jean Urquhart MSP with the opposition MSPs/election candidates being joined for that session by Rob Gibson MSP, Scottish National Party.

Crofting Law Conference 2016 - Rob Gibson MSPThere was little in the way of disagreement about the need for crofting law reform.

Rhoda Grant MSP - Crofting Law Conference 2016Rhoda Grant MSP said:-

The 2010 Act is a mess and probably needs to be revoked altogether.

Crofting Law Conference 2016 - Tavish Scott MSPThis was echoed by Tavish Scott MSP who said:-

The less said about the 2010 Act the better. It is one of the worst pieces of legislation ever passed by the Scottish Government.

He added:-

Crofting Law has been a mitigated mess and devolution has not helped take it forward.

Crofting Question Time at Crofting Law Conference 2016Both Tavish Scott and Rhoda Grant were of the view that crofting can mean different things in different areas. Shetland, for example, is very different to other areas that may work in a more communal way. They felt the current legislation does not recognise these differences.

Crofting Law Conference 2016 - Donald CameronDonald Cameron was of the view that it was “time for crofting law to be for the crofters and not the lawyers”. He warned though that “if you legislate in haste on crofting law you will repent at leisure”.

Crofting Law Conference 2016 - Andy WightmanAndy Wightman, quoting Dr Jim Hunter, referred to crofting law as a “highly unsatisfactory guddle”.

Crofting Law Conference 2016 - Brian InksterBrian Inkster, Hon Secretary of the Crofting Law Group, commented:-

It is heartening to see such cross-party support for crofting law reform. The word ‘mess’ was used more than once to describe the current state of crofting legislation. It is to be hoped that the next Scottish Government take cognisance of this and put crofting high on their agenda for new legislation during the next parliamentary term.

Photo Credit: All photos are by Rob McDougall for the Crofting Law Group

Crofting Law Conference 2013 in Tweets

Crofting Law Conference  2013 in the Signet Library, EdinburghThis year’s Crofting Law Conference organised by the Crofting Law Group in association with the WS Society took place at the Signet Library in Edinburgh on 27 September 2013. Martin Minton provided a report on the Crofting Law Conference for The Firm. I was tweeting throughout the Conference via @CroftingLaw and now reproduce my tweets here:-

Sir Crispin Agnew opens the annual Crofting Law Conference

Sir Crispin announcing ‘the sump’ to gather crofting law problems for consideration of Scottish Government [N.B. More details on this to follow in the next post on this blog]

Now @RobGibsonMSP giving the keynote address

There is a future for crofting and need to make legislation for it

.@RobGibsonMSP quoting @LesleyRiddoch

2007 Crofting Act seen as a quick fix

Layer upon layer of laws

RT @thehealthrebel: and the listing of many croft buildings making them expensive to maintain and/or purchase!

Codifying possibly the best way forward

Depopulation an issue in crofting communities

50% of homes in some crofting communities are holiday homes only used for part of year

Scottish crofting scene is fragile

Need for more local control in crofting

Benefit of Crofting Connections and Crofting Federation Training being mentioned

Out migration, particularly by women, is an issue

Convenor and Chair of Crofting Commission now women

Challenge is to adopt a can do approach

Q&A session with @RobGibsonMSP

Can we use legislation to encourage more female crofting tenants?

Very happy for Scottish Government to look at this

Clarification on codification v consolidation being sought

Codification may do something more fundamental for this generation

New start much more noteworthy than getting all the laws into one book

Can’t have joint tenancies of crofts – that would bring females in

Re-defining crofting law politically or legally?

Hope that there is a small farm ethos that can be encompassed in laws that are not so archaic

RT @RobGibsonMSP Made keynote speech WS crofting law conf. Simplify codify underpin future croft extension to all similar small land holders I argued today

Now Susan Walker Convenor of Crofting Commission on the Residency Duty (commonly referred to as Absenteeism)

1886 “Resides on the holding”

1955 “on, or within two miles of, the croft”

1961 increased to 10 miles

2010 Act now 32km

S40A notice – are crofters complying with residency duty? Should have been done by Commission by April. Still to do.

s49A Grazing Committee duty to report on residency

We now have microphones working – much clearer audio!

Difficult but not impossible to cultivate your croft if absent

9 of 10 people in 2,500 responses in @MarkShucksmith‘s Report wanted action on absenteeism

Only 2 letters in one geographical area complaining about absenteeism legislation. Many letters seeking action on absenteeism

1801 absentees with 582 of those for over 10 years

“Ordinarily resident” taken in the round about what a crofters entire duties are. Do they have “settled purpose”.

Wouldn’t take action where relative stays on the croft

Evidence of active use of the croft

Sublets for not more than two years to absentees unless for good reason

Ministerial direction in 2010 to take action for absentee cases over 10 years. Can take 18 to 24 months to process.

Stages: Review, Proposal to Terminate, Advertise proposal to terminate, Terminate tenancy.

RT @culcairn: should never be a 2 year process. Undermines confidence in act.

Advertising not in legislation but gets info from crofting community to help decision to inform

Can apply for consent to be absent

Fixed term work contract, education, hospital, no house (need to build) all reasons for need to be absent

RT @NeilKing11 Why was none of this covered in the CC Plan? tinyurl.com/p3hrxam

Complex flowchart now being shown of s26A-K process

Easier to understand pictorially than from legislation

Results: 300 crofts now have resident crofters. Either returning crofters or assignations.

35 terminations

August 2013 – 13,616 crofters with 13% being absentees

Commission understand emotional attachment and sense of duty that people have to their croft

Do I want to be a crofter, live on and work croft and be active in community and care enough about my croft to change my life

Want to create thriving crofting communities. When holes they don’t work so effectively

Residency easier to deal with than neglect #croftinglaw Is it not better to tackle neglect than absenteeism where no neglect?

Vast manpower would be required to deal with neglect

Breaking for tea/coffee

Sump Group Results now on crofting problems

Owner-occupiers who are not owner-occupier crofters who need consent of neighbours of original croft unit

Validity of Decrofting Directions issued pre Feb 2013 to owner-occupiers who are not owner-occupier crofters

Problems of Crofting Commission identifying owner-occupiers who are not owner-occupier crofters

Need for section 5(3) Agreements to apply to tenants and owner/occupiers and binding on successors and tenants

Landlords need to pay compensation on terminations made by Commission due to absentees. Large financial commitment

Assignation of croft on First Registration needs to be intimated by assignor to Commission within 3 months or invalid

Purchase of a croft by tenant does not trigger registration

Purchase of whole croft when sasine title. Need to be sure is whole croft or deed will be invalid.

s.17/18 feu ganted when tenancy given up. Now when decroft that is not an exemption from registration in crofting register

Access rights should be registered on crofting register

Status of grazings shares still not clear

Can we divide a grazing share from the croft?

Multiple owners – can we draw a line under the sand and take previous divisions as actual divisions?

Removal of “cultivate by hired labour”. Why?

If Land Court could propose changes to Scheme for Development that might be useful

What happens when you deviate from a Scheme for Development that has been granted?

Crofters duties: neglect a bigger problem than absenteeism

2010 Act difficult to understand

Evil happening in Skye re. termination of tenancies and Landlords extracting a premium on re-letting

Joint landlords can’t make application to divide a croft so must re-let part so they become owner-occupiers of new croft

Multiple owner-occupiers and duties. Do all need to comply or just 1. Commission say 1. If only 5% complying is that sufficient

Joint tenants? Worth exploring.

Validity of corporate entities in a crofting context

Advertising costs re. Crofting Register – could be £100 per advert x 2.

Need distinction between codification and consolidation but whatever #croftinglaw needs to be simplified

Confusion over role of Commission in planning process

Issues at Commission Hearing as to who has the right to be heard

Now lunch 🙂

Clean Slate debate next

Unfortunately @JimHunter22 was unable to make the clean slate debate so Sir Crispin Agnew running solo

85 year old crofter in Barra said 2 cow croft gives you milk for 12 months. 1 cow croft 6 months. Importance of soumings

Then fridges and supermarkets came along and soumings less important

Croft rents not kept up with open market rents for agricultural holdings

Landlords receive no financial benefits from crofts. No incentive to create more or invest in them.

RT @gemzmackenzie: @CroftingLaw might be worth writing a letter to FW summarising the key issues/pointers?

Crofts are getting smaller and smaller and less economic to be used

Obligation to maintain croft difficult for the elderly

No absentee problem in 1886

The crofting bubble. Many Acts and consultations over the years. No one looked at social needs and integrate.

Scrap the crofting Acts and start again.

Review of whole policies to see what should be applied in Scotland or different areas. Local needs vary – policies may need to.

Is starting from scratch codification?

If Government not brave enough still need a clean slate re. crofting Acts and policy objectives.

Abolish the difference between owner/occupiers (crofters/non-crofters) and tenants. Same conditions whoever is in occupation.

Stop resumption unless by CPO

Put all croft rents up to a proper market value

RT @crofterbecca “@CroftingLaw: Put all croft rents up to a proper market value #croftinglaw” Aye, that’ll make crofting more financially attractive…

Incoherence of policy objectives the root of legislative problems

Ministers arrived in middle of this. Lawyers are major advisers. Simpler ways to deliver policy intentions necessary.

Economics and Social situations changed but still applying laws from 1886

RT @AngusMacNeilMP as tenancies did for landowning in 1886 we need a grazing right over tenancy but still leaving tenancies widespread wi folk

Crofting Register: Where are we now? with Martin Corbett of registers of Scotland

Transparency of extent of land #croftinglaw But not grazings shares?!

9 month challenge period

Online register and free of charge to access with no need to sign up to do so

First croft registration being discussed #croftinglaw Covered by us at ow.ly/pgZog

12 evening events on Crofting register being run from Barra to Shetland by Registers of Scotland + attending Highland Shows.

Badralloch Community Mapping underway

Compulsory Registrations from 30 November 2013 on trigger events happening

Suggest if first Registration in Land Register also do Crofting Register application at same time.

Land Registration (Scotland) Act 2012 gets rid of overriding interests other than 3 types. Crofting will no longer be noted.

Crofting Register: ros.gov.uk/croftingregist…

David Barnes – Can’t rush into new crofting legislation. Welcome collective approach of gathering problems together (‘the sump’)

28 national governments and 700 MEPs put together CAP Reform

New Basic Payment Scheme replaces SFP

Move from historic to area based payments – but can phase in (internal convergence)

Can split Scotland into different payment areas

Small Farmer Scheme = simplified option. One off application at beginning and lump sum every year without fresh applications

Crofters can claim new basic payment on in-bye land and common grazing

Common grazing claim can be individual or via grazing management committee

crofters can claim greening payment

Crofters can claim other payments where appropriate

Small Farming Scheme may not be run in Scotland – still under consideration

Now Charlotte Coutts Advocate gives us a case law update

Resumption. Deer larder and hard standing for estate vehicles = reasonable

Resumption for ponies allowed

Land once resumed is outside the jurisdiction of the Land Court

Cameron v Nevis Estates: conditions of purchase could not be varied to those originally imposed by Court. One bite at cherry

No opportunity afforded by Commission to comment on other sides comments. Breach of natural justice.

Recent case on whether part of a holding = croft. Needs to fall within definition in statute.

Shetland croft boundary case being discussed. Interesting social history of case. #croftinglaw Yes… 101 productions!

Court placed boundaries where in all the circumstances they considered them to be.

Pairc Crofters case: Protection afforded to landowners. Human rights referred to.

Conference closes

Brian Inkster

[Photo Credit: © BBC Alba]

Crofting Gobbledygook

Scottish Land Court

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

808 owner-occupiers who are not owner-occupier croftersAt 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

700 owner-occupiers who own croft land left in limboAt 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?

Are owner-occupier crofters a subset of owner-occupiers?

Are they really crofters?

At the evidence taking session on the Crofting (Amendment) (Scotland) Bill on 15th 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

Battle of the Braes by Douglas Chowns

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 15th 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.]