The Firm’s roving crofting law blogger, Brian Inkster of Inksters Solicitors, provides another online exclusive. This month Brian reports from Stornoway on the Future of Crofting Conference.

I was the first of 120 delegates to arrive at the Caberfeidh Hotel in Stornoway on 26 January for the Future of Crofting Conference organised by Western Isles Council (Comhairle nan Eilean Siar). They perhaps thought that I was the keenest crofting law enthusiast there, but this was due to the early 7am flight from Glasgow!

The main focus of the Conference was the Crofting Reform (Scotland) Bill with a keynote address from the Minister for the Environment, Roseanna Cunningham. She made reference to the historic transfer of three crofting estates by the Scottish Government to the West Harris Trust, sealed the night before, and made it clear that the Scottish Government is “wholly committed to community ownership”. Interestingly, she admitted that crofting reform was “at times a bit like white water rafting”.

Discussing the focus of the Bill as being to tackle absenteeism and neglect, the Minister said that a crofter’s responsibilities were to reside on or near a croft and put it to some form of productive use. An unused croft was an empty space that does no good to anyone. Tenants and Owner/Occupiers would be treated the same. It was all about healthy communities and keeping those communities alive.

The provisions of the Bill were neatly summarised by the Minister all as previously analysed by me in my online exclusive for The Firm in December.

Derek Flyn (retired solicitor and legal adviser to the Bill Team) chaired the panel session with questions being answered by heavyweights of the crofting world such as Drew Ratter (Convener of the Crofters Commission), Murdo MacLennan (Area Commissioner of the Crofters Commission for the Western Isles), Patrick Krause (Chief Executive of the Scottish Crofting Federation) and Bruce Beveridge (Deputy Director, Rural Communities Division of the Scottish Government).

Drew thought that a fresh eye was required. He wondered whether it was feasible that something created in 1886 was still fulfilling the same purpose in 2010. Patrick pointed out that other parts of the world were looking at what we were doing here. He thought that the heart of the matter was planning. The planners should be given direction. There is a need for new people to be coming into crofting and it must be viable. However, the benefits of crofting should not become a burden on the crofter. Whilst Patrick did not think that the Bill was going to deliver the well being of crofting he conceded that there were good aspects in it. However, now there was an opportunity to formulate amendments to it. Bruce advised us that there was no single issue in the Bill where there is consensus.

There was a healthy debate from the floor. Discussion took place regarding the impact of care legislation on crofting cases and representatives of the Scottish Government undertook to investigate this. It was pointed out that there was no detail of the constitution of the electorate for the appointment of six of the Crofting Commissioners. This was left to subordinate legislation. Surely that needed to be made clear now. Bruce Beveridge was able to helpfully advise that this would in fact be clear by the end of Stage 1 of the Bill and the detail will be inserted into the Bill before enactment.

One of the local Councillors wondered whether the change of name from Crofters Commission to Crofting Commission marked a move away from looking after crofters to looking after the land that is being crofted. It was indicated by representatives of the Scottish Government that this was not the rationale behind the change of name.

Patrick Krause indicated that a significant proportion of the members of the Scottish Crofting Federation were asking why do we need a new map based Crofting Register. People have survived without it. The logic of a map based system may be inescapable but it should not be the crofters who have to pay for it. The Crofters Commission had been tasked to do it in 1955 and failed to do so. The Scottish Government should pay for it with perhaps a fee for amending the Register once completed, although that was a matter for another debate. Murdo MacLennan pointed out that the Crofters Commission were never required to make the existing Register of Crofts map based. Drew Ratter maintained that the existing Register was adequate for the purposes of regulation.

Bruce Beveridge indicated that talks were ongoing with Registers of Scotland with a view to minimising the costs that would be charged by them. Furthermore, it had now been agreed that Registers of Scotland would send out a map of an area on which the crofter can mark the croft boundaries. In addition the Scottish Government will pay for the mapping of all common grazings and shareholders interests in it.

Was the requirement for a crofter to be ordinarily resident on or within 16km of their croft relevant in today’s world? Drew Ratter thought it was a horse and cart distance. Murdo MacLennan told us that he personally travels 105 miles to work a croft in Harris. Patrick Krause thought that 16km was completely outdated. It should be how far someone could reasonably be expected to commute to and from their place of work in a day. Perhaps 30 to 50 miles he wondered. Roseanna Cunningham had already indicated earlier in the day that this was an area that the Scottish Government could come and go on. Patrick considered neglect to be more the problem than absenteeism. There could be genuine reasons to be absent. Drew discussed the need to balance out the question of well worked crofts or residency in local communities.

No debate on crofting law would be complete without mention of Whitbread v MacDonald 1992 SC 479. This case arguably enables a crofter to nominate a non family member to take title to croft land and circumvent the 5 year clawback provisions now contained in the Crofters (Scotland) Act 1993. Put simply the clawback provisions effectively mean that if a crofter sells croft land within 5 years of purchasing it they have to make over 50% of the market value of the land to the original Landlord. The ‘Whitbread loophole’, unless closed, perhaps makes a mockery of the plan by the Scottish Government to increase the clawback period from 5 years to 10 years.
Solicitor Eilidh Ross could not understand why the Scottish Government had not picked up on the relevance of Whitbread v MacDonald at an earlier stage. Both she and I (and possibly others) had made reference to it in our submissions during the consultation period on the draft Bill and, indeed, I had also done so in my responses to the previous Draft Crofting Reform (Scotland) Bill back in June 2005. Bruce Beveridge assured us that following the case recently being brought to his attention active consideration was in fact being given to the implications of it. Whilst not mentioned at the Conference an interesting aside is the fact that the keynote speaker and Minister for the Environment, Roseanna Cunningham, was the Counsel who appeared on behalf of the crofter Respondent in Whitbread v MacDonald. So the Bill Team may wish to ask her about the case!

Patrick Krause indicated that the majority of the members of the Scottish Crofting Federation considered the Whitbread loophole to be a “mechanism for cheating” and were happy to close it. There should therefore be little problem in the Scottish Government now amending the Bill to do so.

The afternoon saw a mixture of presentations on crofting topics. Highland & Islands Enterprise gave a talk on the delivery of crofting community support. We heard about the work of Crofting Connections: a programme of activities and events that seeks to inspire over 1,000 young people aged 5-16 living in remote rural communities throughout the Highlands & Islands about crofting past, present and future. They learn traditional skills from crofters, create their own climate-friendly food-growing projects, and help safeguard the history, culture and heritage associated with their crofting communities. There were also breakout workshop sessions on Housing, Common Agricultural Policy and Community Ownership.

Earlier in the day Councillor Donald John MacSween stated that the 1886 Act was the only one that has worked and maybe the 1955 one had. However, everything else had failed including this latest Bill. Whilst it might be okay for lawyers it was not for the crofters on the ground. At the close of the Conference he sought to make a motion to seek to have the Bill suspended. During this suspension a short life working group would be formed with its remit to include what is crofting now, what benefits can crofting deliver in the 21st century and who are the crofters of today? However, it was pointed out there had been no intention at the outset for motions to be made at the Conference and if this was to be done others would need the opportunity to also consider and make motions of their own. In all the circumstances the Conference was brought to a close without any motions being made but with many interesting points for the Bill Team to take back to Edinburgh.

My day in Stornoway ended with my old friend, Derek Flyn, and I setting the world to rights over a curry before I caught my flight back to Glasgow. I had a Kurfan Special which, according to the menu, “once tasted never forgotten”. Whilst my memory of the curry will probably recede I am sure that in years to come, when I am considering the terms of what will become the next Crofting Act, I will remember the day in Stornoway that perhaps helped in some small way to shape that Act.

Brian