Legislation that will allow owner-occupier crofters to decroft their land has been supported by the Rural Affairs, Climate Change and Environment Committee. However, the Committee has drawn concerns about its complexity to the attention of the Scottish Government, and also commented on the next-steps for making crofting law fit for purpose.
Speaking as the Committee publishes a report to Parliament on the Crofting (Amendment) Scotland Bill, Convener of the Committee Rob Gibson MSP said:
“This legislation should create a level playing field for owner occupier crofters and tenant crofters in seeking to decroft their land, which is what was intended in the existing legislation.”
“We welcome the speed at which the Scottish Government has acted to correct this problem but, whilst we believe this bill will solve the current problem, some crofting lawyers clearly have concerns about the complexity of the bill, and crofting law in general.
“As a result of the evidence we received, the Committee has asked the Scottish Government to clarify how it intends to address criticisms, not only on the drafting of the bill, but of the wider criticisms of crofting law in general.”
The stage one report on the Crofting Amendment (Scotland) Bill has reached the following conclusions in summary:
- The Committee regrets that an unintended consequence of omissions, and/or a lack of clarity in existing crofting legislation has led to the Crofting Commission suspending decisions on applications by owner-occupier crofters to decroft all or part of their land, as the Crofting Commission considered there was no legal basis on which to make such decisions. Such applications had been made, and decided upon, since October 2011, until the problem came to light earlier this year, and the suspending of consideration of such applications has prevented some owner-occupier crofters enjoying equal rights to tenant crofters, which was the policy intention of the existing legislation.
- The Committee agrees that the legislation needs to be corrected and therefore welcomes the Scottish Government’s swift bringing forward of amending legislation which should not only remedy this issue for those making such applications to decroft in the future, but will also retrospectively apply to all those who previously made applications, or who currently have applications on hold as a result of the issue being identified.
- However, whilst acknowledging that amending legislation is required, and that the Bill as drafted should address the identified problem, the Committee notes 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.
- 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.
- The Committee was struck by the evidence it received from those knowledgeable in this area of the law, which demonstrated significant frustration and concern with the increasing complexity and layers of crofting law. Crofting law as it stands was described as “a mess” by more than one respondent to the Committee’s call for views.
- The Committee makes specific comment on the provisions in the Bill in the main body of this report below. However, the Committee welcomes the policy intention of the Bill to rectify the anomaly which has been identified that currently prevents owner-occupier crofters from applying to decroft all or part of their land. The Committee therefore recommends that the Scottish Parliament support the general principles of the Bill at Stage 1, to allow the Bill to pass to Stage 2.
- However, in doing so, 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.
- The Committee asks 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.
The Crofting (Amendment) (Scotland) Bill was introduced on 9 May 2013. The Bill aims to address issues in the Crofters (Scotland) Act 1993 arising from amendments made by the Crofting Reform (Scotland) Act 2010 which have left tenant and owner-occupiers not being treated equally in terms of their ability to decroft land.