What I would like to see from the reform of crofting law

I took advantage of the extension to the consultation deadline and submitted the following comments yesterday to the Scottish Government’s Crofting Bill Team. These are responses to the questions posed in the official consultation document, available here. 

“Q1.

As a general policy, the SG’s current crofting policy is fine.

Q2 –

I am in favour of option 4 (the ‘clean sheet’ approach). Option 3 might also be appropriate, but in my view the opportunity to start from scratch would give an opportunity to blend the elements of existing legislation which are valued, with some new concepts and priorities. It would also provide an opportunity to ensure crofting law is suitable for future generations. It may be appropriate to have two acts, dealing with tenanted and owner-occupied crofts respectively.

Q3.

There will always be some who value compliance with the residency duty over the cultivation duty, and vice versa. In general terms I recognise that the public money devoted to crofters entitles the state to impose obligations upon them. If the priority is population retention, then resources can be directed to enforcement of the residency duty.  If agricultural production is the priority, then resources will have to be directed towards enforcement of the cultivation duty. If these duties continue in their current form, or are replaced with different duties, the Commission should be obliged to confirm in their Policy Plan which duties are to be given priority.

Q4.

In my view the succession provisions (both testate and intestate provisions) requires more urgent attention than assignation provisions. The former are hazardous, and the latter merely untidy.

Q5.

As the Bill Team obviously recognise, common grazings require fairly urgent attention. There is widespread misunderstanding of the existing rights and obligations of shareholders and committees. There is also the question of deemed crofts, which could be dealt with in any new legislation. If common grazings committees are to continue (and in my view they should if possible), they must be educated and supported appropriately.

Q6.

Despite the competent current Board of Commissioners, I am in favour of an entirely appointed Board. There is nothing undemocratic about elected representatives appointing commissioners to make regulatory decisions. Regulation has been tighter since 2010, and whilst I have heard the argument that this is because elected commissioners are more accountable, the truth is that the legislation since 2010 has placed an obligation on the Commission to act, whereas previously they had more discretion in relation to whether to regulate in a particular case.

Q7.

In my experience the majority of croft registrations proceed without disagreement or challenge.

Q8.

The problem lies with the definition of an owner-occupied croft, and this could be remedied in any new legislation. In my view it might be tidier to have two acts of parliament, dealing with tenanted crofts and owner-occupied crofts respectively. One element of the current problem is the dual nature of the current system.

Q9.

I am not convinced that commercial mortgages (which require standard securities) are appropriate, largely because I doubt very much that commercial lenders will accept a croft tenancy or an owned croft as security. However, I am firmly of the view that a priority must be to provide a source of funding (by loan rather than grant if need be) to allow more people to purchase crofts (both owned and tenanted). The market currently is (in my experience as a solicitor in private practice for ten years) heavily dominated by people who have sold a property out with the Crofting Counties (where property prices are higher, meaning people can sell a house and buy both house and croft) to fund their croft purchase.

Q10.

No comment.

In general terms I endorse the Crofting Law Sump, and would encourage the Scottish Government to ensure that the issues raised there are dealt with in any reform of the law on crofting.

Furthermore, in my view, the transfer of the development function to HIE has not been successful, and should be returned to the Crofting Commission. The Commission are better placed to carry out those developmental responsibilities.

My own view is that the reform of crofting law should be about designing a new crofting system (which need not differ entirely from the existing system) for the 21st century which is coherent, imaginative and technically sound.”