Tag Archives: Sir Crispin Agnew QC

New Book to Demystify Crofting Law

Brian Inkster holding his new crofting law book

A new book on crofting law was launched this past week at a reception held in the main law library of the Royal Faculty of Procurators in Glasgow.

‘A Practical Guide to Crofting Law’ has been written by crofting law expert Brian Inkster.

The book is an introduction to crofting law for those with an interest in it or who may touch upon it. Whether that is lawyers, law students, land agents, crofters, landlords or anyone else with an interest in crofting law.

The book covers the main issues briefly and concisely, aiming to highlight the complexity of crofting law and the pitfalls and traps that await the uninitiated. The aim is that readers will, as a result, be better versed in the basics of crofting law.

Welcoming the publication of the book Patrick Krause, Chief Executive of the Scottish Crofting Federation, said:

This is a book that has been awaited since crofting law was formed, a book that lays out what the, notoriously difficult to navigate, ‘sea of legislation’ is about.

Andrew McCornick, President, NFU Scotland, said:

Brian Inkster is to be congratulated on unravelling the complexities of crofting law into a practical guide that is comprehensive and yet can be easily understood. I am sure this will prove to be a very useful guide to current crofters and those with an interest in crofting.

Katy Dickson, Former Head of Policy, Scottish Land & Estates said:

Brian’s book is an accessible overview of a complex legal specialism which would be a useful addition to the shelf of anyone involved in crofting.

Tavish Scott MSP, Co-Convener of the Scottish Parliament Cross-Party Group on Crofting, said:

This is an extremely helpful guide to crofting law which will help all who have to navigate the Byzantine routes through the law of the land.

Sir Crispin Agnew of Lochnaw Bt QC, Chairman of the Crofting Law Group, said:

Brian’s new book is an invaluable practical guide to demystify crofting law.

The book has been published by Law Brief Publishing. It can be ordered online with a special new publication discount (which will apply for only a short period of time) via croftinglawbook.com

Crofting Law Group Conference 2017

Colin Kennedy and the Holy Grail

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The Scottish Farmer today gives space for Colin Kennedy, Convener of the Crofting Commission, to tell them about his “crofting crusade!”. This follows hot on the heals of a huge press offensive on his part over the past week with appearances/articles in Sunday Politics Scotland, The Oban Times and BBC Radio Highlands & Islands.

The story is the same: He is right and everyone else is wrong.

He has again stressed that his sole motivation is:-

to uphold crofting law, and defend the statutory rights of ordinary crofters

It has been shown that this is very much his own interpretation of crofting law and not one supported by the Scottish Government or by his fellow commissioners.

He has, however, again rounded on the Scottish Government and the cabinet secretary responsible for crofting, Fergus Ewing MSP, with The Scottish Farmer reporting Mr Kennedy as:-

bluntly accusing him [Mr Ewing] of perpetrating a cover-up of ScotGov’s historic role in a quagmire of maladministration.

He labours on about his views on the illegalities of common grazings obtaining SRDP funding which, as has been pointed out many times before, is not any business of the crofting regulator but a matter for the Scottish Government, the EU and crofters.

Mr Kennedy claims that:-

The commission has taken legal advice from Sir Crispin Agnew QC and it is my understanding that a grazing committee does not merit claiming subsidies, as only individual shareholders with grazing rights are eligible, provided that they comply with the provisions of the legislation for such activity.

Does Mr Kennedy have the approval of the Board of the Crofting Commission to discuss in public this legal advice obtained by the Commission? If not he is breaking that code of conduct again that he was keen to discuss on BBC Radio Highlands & Islands. This is, of course, true in relation to much that he has said over the past week.

Obtaining such a legal opinion was probably outwith the remit of the Crofting Commission in any event. It is understood that Mr Kennedy was instrumental in having it obtained. It is further understood that whilst the Board may have considered this legal opinion when produced they did not use it as a base for any decisions made.

The Scottish Government stated that it “wholly disagrees” with the views on SRDP funding held by Mr Kennedy. This would appear to include the legal opinion that he still clings to.

Those views, like his ones on VAT registration, were potentially all about depriving crofters of funding and had nothing to do with upholding crofting law and defending the statutory rights of ordinary crofters.

Mr Kennedy again showed the huge divide between himself and the Crofting Commission Board and the fact that he was not in fact supporting decisions taken by the Board such as accepting the Government’s position on SRDP and disbursement of funds.

Mr Kennedy proceeded, in his interview with The Scottish Farmer, to attack the former Upper Coll Grazings Committee stating that they:-

have a lot to answer on behalf of shareholders.

Again this is completely at odds with the position taken by the Scottish Government and the Board of the Crofting Commission who have issued an apology to the grazings committee in question.

Mr Kennedy’s position in such circumstances is completely untenable.

On the subject of Colin Souter, the grazings ‘constable’ at Upper Coll, Mr Kennedy denies any involvement in his appointment or that he is “his man“. He points the finger on Chief Executive, Catriona Maclean, for the appointment “without reference to the agreed board process“.

However, Freedom of Information requests reveal evidence that Mr Kennedy’s version of events may be one painted through rose tinted glasses. His memory again may not be serving him well.

A document produced by the Crofting Commission states:-

Following the Board meeting on 9th May the Convener, Vice Convener, and CEO met by phone to agree who should be appoint4ed [sic] to the post of Grazings constable in the Upper Coll Common Grazings.

So Mr Kennedy was very involved in the selection process.

The selection committee considered four potential candidates for the job and concluded that:-

Mr Souter has experience in working with crofters and grazings committe4ss [sic] through his time in the Police. An ex-chief inspector and force negotiator who comes from south Usit [sic] Mr Souter has both the skills and experience to deal with this matter and therefore he was selected to be appointed constable.

So Mr Kennedy was in fact party to and appointed Mr Souter to the post in question.

There is also evidence of direct communication between Mr Souter and Mr Kennedy. For example an e-mail from the former to the latter on 24 May 2016 which reads:-

Hi Colin

In looking to progress a meeting with the shareholders at Upper Coll, in the near future, I wanted to ensure the venue was appropriate and given you’ve been out there, I wondered if you had an idea on the best venue option and perhaps a secondary one, if circumstances require?

Kind Regards

Colin

Colin Souter

No evidence was produced from the Freedom of Information request as to whether or not recommendations were given by Mr Kennedy to Mr Souter on the comfort of the chairs at possible venues in Upper Coll. But this exchange does prove that there was indeed direct communication between the two as previously suggested on this blog.

Furthermore Mr Kennedy was taking a direct interest in matters by requesting to see minutes of meetings held by Mr Souter at Upper Coll, all as disclosed from information obtained through Freedom of Information.

Mr Kennedy in discussion with The Scottish Farmer refers to the whole grazings committee issue being “a can of worms” but stressed that to his knowledge it was only a problem specifically on Lewis. He is reported as having “quipped“:-

as previously stated in the board room things are often done differently in Lewis.

What about in Lochaber? Has Mr Kennedy also forgotten about the grazings committee he and his fellow commissioners put out of office there? Has he forgotten about how instrumental he was in ensuring the appointment of a grazings ‘constable’ there who would do his bidding?

It has, however, been commented on before that Lewis appeared to be a particular target for the convener. It is unclear why. But perhaps that will eventually come out in the wash.

Mr Kennedy is quoted by The Scottish Farmer as saying:-

But now I’ve put my head on the block in trying to get to grips with the truth. I know people are queuing up to get me out but I am not letting this rest. I’m not going to jump, so I will probably be pushed. If that happens my solicitor is standing by.

That solicitor will have a difficult hill to climb. The evidence seems to me to be firmly stacked against Mr Kennedy and has been since my first blog post on ‘The Common Clearances‘. Subsequent events and revelations from Freedom of Information requests has just fortified that position.

Mr Kennedy’s version of events, as given to the press this past week, appears to show a selective memory with many gaps to fill. I and others who post comments attempt to fill those as best we can on this blog.

Mr Kennedy, like Mr Souter, appears to be searching for a justification for his discredited actions. I doubt that he will ever find it.

Brian Inkster

Image Credits: Monty Python and the Holy Grail © Python (Monty) Pictures

Crofting Law Hustings

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The calm before the crofting law storm at the Signet Library!

Part of this year’s Crofting Law Conference (organised by the Crofting Law Group in association with the WS Society) will take the form of a hustings on crofting law. With the Scottish Parliamentary Elections looming there is great interest in crofting circles as to what the next Scottish Government might do to resolve the many problems in existing crofting legislation identified by The Crofting Law Sump Report.

The conference will take place at the Signet Library in Edinburgh on 17th March 2016 and is Chaired by Sir Crispin Agnew of Lochnaw Bt., QC, Chairman of the Crofting Law Group.

Brian Inkster, Hon Secretary of the Crofting Law Group, will provide an introduction as to where we are at with ‘The Crofting Law Sump’. Then Dr Aileen McLeod MSP, Minister for Environment, Climate Change and Land Reform will keynote on the current Scottish Government’s position on crofting law. She will be followed by the ‘Views on Crofting Law from the Opposition’ from MSPs and representatives from other political parties. The crofting law hustings will culminate with an opportunity for delegates to put their own questions to the panel in a ‘Crofting Question Time’ session. Participants are:-

Jean Urquhart MSP, Independent (moderating ‘Crofting Question Time’)
Rob Gibson MSP, Scottish National Party
Rhoda Grant MSP, Scottish Labour
Tavish Scott MSP, Scottish Liberal Democrats
Donald Cameron, election candidate for Scottish Conservative and Unionist Party
Andy Wightman, election candidate for Scottish Green Party

Following on from the crofting law hustings several recognised specialist speakers will present on Crofting Succession and Crofting Mortgages and representatives from both the Crofting Commission and Registers of Scotland will be there to discuss current issues. There will also be a case law update. Speakers and panellists include:

David Findlay, Solicitor, Crofting Commission
Rod Maclean, Solicitor, Murchison Law
Jill Clark, Head of Civil Law Reform Unit, Justice Directorate, Scottish Government
Eilidh Ross MacLellan, Solicitor, Inksters
Catriona Maclean, Chief Executive, Crofting Commission
Martin Corbett, Head of Policy Development, Registers of Scotland
Rhona Elrick, Registers of Scotland
Donald Cameron, Westwater Advocates

WS/CLG member: £180 + VAT
Non-member: £205 + VAT
Trainee/student/retired: £115 + VAT

All rates include lunch at the Signet Library.

To book, please contact Nicole Hatch at the WS Society:-

0131 220 3249

E-mail: nhatch@wssociety.co.uk

Download: crofting law conference booking form

The event is supported by First Title and Wesleyan

Crofting Law Conference 2013 in Tweets

The Scottish Government knows best about Crofting Law

1 Reply

At 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

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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:-

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

A very simple but effective amendment

1 Reply

Simples!

I have already posted about the Crofting Law Group AGM (20 crofting lawyers in a room together) where the Crofting (Amendment) (Scotland) Bill was discussed.

Sir Crispin Agnew QC observed at that meeting that a simple amendment to the Crofters (Scotland) Act 1993 to correct the owner-occupier decrofting problem might be to insert in section 24(3): “Where a croft is vacant, or occupied by an owner-occupier crofter, the Commission may …”.

Very simple and effective. I would be more than happy for clause 1(2) of my Alternative Crofting (Amendment) (Scotland) Bill to be amended to substitute Sir Crispin’s proposed method of dealing with the problem.

Crofting Lawyers are finding simple and effective ways to resolve the issue. So far the Scottish Government seems intent on a very unecessary and complex layer of legislation in their attempt to resolve it. Many fear that this will just cause problems for the future. I share those fears.

20 Crofting Lawyers in a room together

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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.

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

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The 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

The 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]

Crofting Law Blog

From Inksters Solicitors

Tag Archives: Sir Crispin Agnew QC

New Book to Demystify Crofting Law

Crofting Law Group Conference 2017

Colin Kennedy and the Holy Grail

Crofting Law Hustings

Crofting Law Conference 2013 in Tweets

The Scottish Government knows best about Crofting Law

Length is not everything

A very simple but effective amendment

20 Crofting Lawyers in a room together

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