I requested the Crofting Commission to provide me with copies of the legal advice sought and obtained by them on the question of owner-occupied croft decrofting. They replied:-
“As you will be aware legal advice is exempt from disclosure under Section 36(1) of the Freedom of Information (Scotland) Act 2002 as legal professional privilege. We do not recognise that this is a qualified exemption and there can, in certain circumstances, be public interest arguments as to why legal advice should be released. In this case however we do not consider that the public interest outweighs legal confidentiality at this time, as both Ministers and officials are currently considering legislative remedies to resolve the situation.”
My request was to enable me to assist a crofter whose application to decroft has been put on hold by the Crofting Commission. The Crofting Commission has stated that such affected crofters should seek their own “independent legal advice as to possible remedies”. Yet the Crofting Commission are not explaining to crofting lawyers exactly how and why they have come to the conclusion that they have done on owner-occupied croft decrofting.
The Crofting Commission are expecting those affected by their decision and their advisers to operate in a vacuum where the rationale involved is an unknown quantity.
The legal advice obtained by the Crofting Commission relates to the interpretation of a very specific part of the Crofters (Scotland) Act 1993. It does not concern an actual situation or individual. It is not the subject matter of a dispute before the courts. Why then should it be privileged?
It does, however, affect (as Tavish Scott MSP pointed out in the recent debate at the Scottish Parliament arising from the motion by Jean Urquhart MSP to debate the role of Crofting in the Highlands & Islands) 3,000 owner-occupier crofters who may wish, at any time, to apply for a decrofting direction of the whole or part of their owner-occupied crofts.
Paul Wheelhouse MSP, has down played this statistic and considers instead the relevant one to be those only immediately affected, namely the 59 who have lodged decrofting applications that have now been put on hold. However, the potential is there for it to affect many more especially the longer the saga is drawn out.
The recipients of the 179 decrofting directions granted since the new provisions contained in the Crofting Reform (Scotland) Act 2010 came into force should not be forgotten either. Surely if you accept the Crofting Commission’s argument that it does not have the power to grant those decrofting directions then they must be null and void. The knock on effect of this I have already looked at elsewhere, including the fact that title deeds could, in certain circumstances, also be null and void.
Anyway, the fact is that this does have widespread repercussions. There must also be a general public interest in the time and money being spent by public funded bodies (the Crofting Commission and the Scottish Government) on ruminating over, causing and resolving (if there was ever anything to resolve in the first place) the mess that has been created.
By publishing the legal advice crofting lawyers such as myself can assist the process by either putting forward legitimate arguments for why it may be wrong or endorsing it as correct. I have been contacted by several crofting lawyers in private practice who support my interpretation of the law. None have, so far, attempted to put forward a contrary view. I have asked the Crofting Commission to explain where I may have gone wrong in my interpretation. They have, so far, ignored the invitation to correct me.
I may well be wrong. If I and other crofting lawyers were given sight of the legal advice obtained by the Crofting Commission we may well see a point that I have been missing and concur with it. By keeping it top secret that opportunity will be lost.
Ultimately are we going to see much time and effort spent on emergency legislation that no one will ever know whether or not was necessary as the real reason for it will never be made public? Surely that cannot be in the public interest.
There is, in my opinion, no good reason for top secret crofting law unless, perhaps, you have something to hide.
Brian Inkster
Part 2 Exempt Information
36. Confidentiality
(1) Information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings is exempt information.
ASK FOR A REVIEW – as “because “Ministers and officials are currently considering legislative remedies to resolve the situation.” does not preclude releasing the information.
This is not an absolute exemption
Release definitely outweighs non-release in the public interest (in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.)
Thanks Wilf
I will, indeed, be asking for a review. Will keep you posted on this blog as to how I get on.
Sir, the recently introduced legislation on de-crofting will only serve to further shrink the crofting community and will discourage further investment by those wishing to de-croft. De-crofting does give value to the house and land and should be permitted only once, but it has happened on many occasions, where several plots have been de-crofted. The only advantage that might exist in the new legislation is that asset stripping would be stopped. Maybe that is the aim, but if so why not state so publicly. I’m in total agreement with Mr Inkster and want clarity. At some point in the not to distant future my wife and I hope to build on croft land and run the croft.
Yours,
H.Marriott
Thanks Mr Marriott
One of the difficulties may be that the Crofting Commission’s views on decrofting conflict with the intent of the Scottish Parliament. Thus problems arise of the type we are now seeing if, indeed, the Crofting Commission are going out of their way to obstruct decrofting which, on the face of it, would currently appear to be the case.
Interesting. I’m not all that surprised that it has been refused as legal advice is almost always never released under FOI. Even getting a confirmation that legal advice exists can be challenging.
It’s quite clear that section 36(1) is engaged here because the information will likley be covered by legal advice privilage. If that is their response in full then they haven’t adequatley outlined the public interest arguments favouring maintaining the exemption and those against maintaining the exemption, so there are certainly grounds for review there.
There is generally an assumption that there is a strong public interest in maintaining the confidentiality of legal advice and communications relating to legal advice. Certainly worth a review, but if you then end up taking it to the Commissioner after that it will take a while to investigate.
Useful links include the Commissioner’s guidance on section 36 and the public interest.
Good luck!
Thanks Alistair
Those links were very useful. I am now even more convinced that the Crofting Commission are relying on legal advice privilege in a situation where they should not be doing so. My thoughts on that may turn into a further blog post in its own right. In the meantime I am compiling my request for a review.
Irrespective of the niceties of FOI and privilege etc., I agree it seems rather odd that the CC has chosen to conceal its advice rather than sharing it if they’re genuine about seeking an early resolution.
As to the risk of titles being null and void, if I’m following the argument, it’s due to the fact that, if decrofting for an owner occupier is incompetent post 1/10/11, any disposition of a part of a croft “decrofted” post 1/10/11 amounts to a transfer of an unconsented division of a croft which is null and void under s.19D(7) – is that it?
If so, I suspect the word “first” in s.19D(1) & (2) means an ex post facto consent to division by the CC in all cases where a post 1/10/11 decrofting direction has already been given may not cure the problem. (Although, of course, even if it did, it would only mean the title was secure; it wouldn’t alter the fact the land is not decrofted.)
But as regards title (irrespective of whether decrofted), is it not likely to be the case that, so long as a purchaser of a post 1/10/11 decrofted part is in possession of it (which will usually be the case), the Land Register can’t be rectified against him due to the fact that, before the CC announced its change of interpretation, there could be no question of the purchaser (or his lawyer, more to the point) being guilty of “fraud or carelessness”. In other words, the nullity may be more apparent than real and perhaps the best advice to any such purchaser would be to make sure he gets himself “in possession” of the land if development on it hasn’t started yet.
If I’m right about that (and I may well not be because when the Register can and can’t be rectified and when the Keeper’s indemnity is and isn’t engaged was never my strong suit on the basis that, as a practicing conveyancer, I always tried to avoid these situations!), could the seller of a post 1/10/11 decrofted part claim on the Keeper’s indemnity for not being able to enforce the nullity of the sale? The point of mentioning that being it might give the Keeper a vested interest in putting the arm on the CC (and ScotGov) to resolve the thing asap by a s.53 application to the Land Court?
Thanks Neil
Yes… that is it.
Interesting point about the Keeper’s indemnity. Not sure where a deed that is actually null and void fits into that. The Keeper’s guidance on the division of owner-occupied crofts does not help much. I rather suspect (but I may be wrong as I have not looked into it in any detail) that when Section 21 of the 2010 Act (which inserts the new Section 19D into the 1993 Act) was being drafted a link (if one was necessary) with the Land Registration (Scotland) Act 1979 was not thought through. I think I will direct Registers of Scotland to your comments and we will see what they make of it! As you say the Keeper may well have a vested interest in seeing the matter resolved.
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