Over the past three weeks eleven crofting law related news items have been posted at inksters.com:-
Crofting Commission halts decrofting process for owner-occupier crofters
Alternative opinion on owner-occupier crofters’ right to apply for a decrofting direction
When (if ever) is an owner-occupied croft vacant?
Call on Crofting Commission to reverse decrofting decision
Inaction over decrofting debacle – what now for crofters?
Minister re-affirms position on decrofting
Decrofting debated on BBC Radio Shetland
Raasay highlights problems with external ownership in crofting communities
Pairc legal challenge rejected
Inksters and Scottish Crofting Federation launch crofting law helpline
Crofting Law in North and South Uist and Benbecula
Most of these (the first seven listed) relate to the decrofting debacle created by the Crofting Commission when they suddenly announced that they were no longer processing applications to decroft made by owner-occupier crofters. The Crofting Commission believes that it is illegal for them to do so based on an interpretation of the Crofters (Scotland) Act 1993 sought and obtained by them from their legal advisers. I have an alternative interpretation on that. I may not be correct. Crofting law is complex and often open to different interpretations. However, given that it is so complex, I do not believe that the Crofting Regulator should cease the work it has been doing, without question, to date and decree that the interpretation that it has obtained is the correct one. Surely that is the job of the Scottish Land Court and should follow on from an actual challenge of the procedures adopted by the Crofting Commission.
A week before the announcement on owner-occupied croft decrofting a more low key announcement was made on a change of policy by the Commission for decrofting and letting applications. This new policy is that all decrofting and letting applications in respect of crofts with multiple owners, must be submitted by all the owners, in their capacity collectively as the ‘landlord’ of the croft, even in those cases where the application related to a part of the croft held in title by only one of their number.This policy announcement has been overshadowed by the owner-occupier crofter decrofting debacle. It is, however, also a significant matter that needs careful consideration as to the consequenses that the Crofting Commission have now unleashed on that front, again as a result of their particular interpretation of the law. We will no doubt look at this in detail in a specific blog post on the Crofting Law Blog.
The Crofting Commission is new, in that it was established on 1 April 2012 to take over the regulation of crofting from the Crofters Commission. For the first time it consists of six Commissioners elected by crofters with the other three Commissioners having been appointed by Scottish Ministers. Only one of the nine Commissioners served on the former Crofters Commission. They have been in power for less than a year and are already making their mark on the world of crofting law even although they have yet to publish their Plan (it has to date been seen in draft form only). Perhaps that should have come first before pulling apart the Crofters (Scotland) Act 1993.
Just before the decrofting debacle began we had the surprise decision by the Scottish Government not to renew the lease of sporting rights to the crofters of Raasay and grant it instead to a company from Ayrshire. This caused uproar and there was a sudden U-Turn by the Scottish Government.
Crofting law appears to be in turmoil in a way that has possibly not been seen since it was introduced in 1886. The time is surely ripe for a crofting law blog to air the issues arising in an open, clear and transparent way.
What are politicians like? I’m referring to Rhoda Grant MSP blaming the decrofting impasse on “shoddy” drafting. I think Rhoda should be given the job of drafting a consolidation bill ironing out all the mistakes!
More seriously – and trying to avoid bandying around Rhoda-esque accusations – I don’t think it’s right for the Crofting Commission and Scottish Government to just sit on their hands doing nothing. The CC/SG may object to that statement but it’s the public’s perception of what’s happening.
With respect Brian, I don’t think your interpretation of the legislation contained the knockout punch which the CC have overlooked. The legislation is such a mess due to multiple amendments there just is no clear interpretation.
Nor do I think a direction by the SG to the CC under s1(3) is the answer. I can sympathise with the SG for hesitating about that. I’m no constitutional lawyer (hence open to correction here) but I suspect s1(3) is more about giving general policy steers rather than for the SG to be able to micro-manage the work of a quango.
But instead of poo-pooing other people’s suggestions, what would I do? Well, if I were the Chief Exec of the Crofting Commission for the day, my stream of consciousness would be going something like this:-
“Amending Act of Parliament would take ages what with need for consultation etc. wouldn’t it? But check this out vis a vis timescale of taking one of the stalled decrofting applications to the Land Court under s.53. For matter of this importance, would LC not make time available for pretty short debate at short notice? Someone to speak to clerk to LC about this. What’s Sir Crispin’s diary like? CC to pay expenses of all involved in case regardless of win or lose. (Check with legal people OK to make this concession.) Suspect LC would take robust approach and rule decrofting OK for owner occupiers as with their approach to the mistake in the Ag Holdings Act (another example of amendment upon amendment!) ref. rent reviews. But if LC ruled against us, then full steam ahead with amending Act (note to speak to Rhoda Grant MSP ref. drafting same!)”
Otherwise, congrats on introducing this blog and look forward to more entries.
I agree that there is no knockout punch. I have already said that I may be wrong due to the compexity of the legislation. In the absence of seeing the legal advice actually obtained by the Crofting Commission it is also difficult (impossible perhaps) to see exactly what their reasoning is and whether there is actually holes in the legal advice that they are relying on.
An alternative opinion could, however, have given the option to the Crofting Commission of saying that as there exists an argument that what they were doing was not illegal they will continue in that vain until the matter is resolved. They have decided not to grasp that opportunity.
I agree that s. 1(3) would not be an answer in the long term but I have advocated it as a short term measure to at least keep the processing of applications going pending a resolution. My suggestion is that decrofting directions do not get issued but applications are processed to the point of issue pending a ruling by the Land Court or alternatively emergency legislation being introduced. I believe that the Scottish Government could direct that.
Section 53 does, of course, provide the best long term answer (with emergency legislation being a back up after that, if required). The Crofting Commission should, naturally, have used this procedure whilst there was doubt over the interpretation of the legislation. The former Crofters Commission did exactly that over the question of grazing shares. The Crofting Commission are fully aware of the procedure but it looks as though they thought they could simply by-pass it. Having done so they may have to eat humble pie to now, several weeks later, start that process themselves. I get the feeling, although I may be wrong, that they will not be too keen to do so. It may take an affected owner-occupier crofter to force the issue via section 53 or, indeed, the Scottish Government could make an application under that section, as an interested party, if the Crofting Commission continue to stall.
I agree that the Land Court are likely to take a robust approach and said so in my Alternative Opinion. The Land Court have been described as ‘user friendly’. I wonder if the Crofting Commission will become known for being ‘user un-friendly’?
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