Decrofting debated on BBC Radio Shetland
14 March 2013
Brian Inkster was interviewed on BBC Radio Shetland’s Good Evening Shetland programme yesterday about the ongoing problems surrounding the ability of owner occupier crofters to decroft. Presenter Mike Grundon spoke to Brian along with the Minister responsible for crofting and the Crofting Commission, Paul Wheelhouse. The transcript of the interview is below.
Mike Grundon (MG)
"Changes to crofting legislation are stopping crofters who own and occupy crofts selling off or changing the use of their land but this isn't a deliberate move by the Scottish Government or the Scottish Crofting Commission to stop land being decrofted. It appears to be an unintentional consequence of some badly drawn up clauses in the Crofting Act of 2010. The Crofting Commission has gone through the legislation to see if there is a way around it and it can’t find one so what does the Minister for Environment and Climate Change say. I have been speaking to Paul Wheelhouse this afternoon".
Paul Wheelhouse (PW)
"We are still undergoing a degree of legal investigation as to what exactly the implications of the issue are so it is being investigated as a matter of urgency and we do plan to respond as soon as possible to all our stakeholders but it does appear to be the case that there is an issue regarding the Crofting (Scotland) Act 2010 and therefore we are looking at our options in terms of what is the best way of addressing the issue".
MG
"But it was clearly an unintentional consequence of the new legislation rather than for you meaning for it to be this case?".
PW
"Absolutely, I mean some of the intent of the Act was that owner-occupiers would be able to decroft their land in the same way as those who are tenants so it is an unintended consequence of legislation and we hopefully, clearly want to rectify any problems that have been created".
MG
"Surely between you and the Crofting Commission you will have had experts going through the new laws in advance to scrutinise and try to prevent this happening. How was this missed?".
PW
"Well indeed all legislation is heavily scrutinised by Parliament and clearly it went through the parliamentary system without being detected. The Crofting Commission I should say are the ones who first raised it with me and clearly as soon as we were aware of it we have been acting with all due urgency to try and explore our options".
MG
"So basically it is just an incompetent piece of legislation?".
PW
"Well, clearly the intent of the legislation was to ensure that owner-occupiers had the same ability to decroft the land as those who are tenants but it appears to be that the legislation is not delivering that in effect. We have to rectify that situation and clearly we want to do that as a matter or urgency".
MG
"So what do you think the options are? Leave it lie, work out a sticking plaster remedy or completely redraw the relevant section of the Crofting Act?".
PW
"Well we are looking at all options at the moment and if I may I would hold off from giving a definitive position at this moment in time because we are still receiving legal advice. However what I will say is that we will look to move as early as possible to implement any measures we do have to put in place. If we do have to go down the legislative route to change this I want the Scottish Parliament to work with me on a resolution because it is clearly important that we put aside party politics and make sure this is rectified as quickly as possible".
MG
"That doesn't sound like a quick process. In the meantime crofters are wanting to decroft their land for development, for selling pieces off. If they miss out on sales or developments because of this delay do you think they will have any right to get some kind of compensation after this mess?".
PW
"Well in terms of the numbers I just want to clarify. I know that Tavish Scott suggested there were 3,000 people that were affected by this. Technically speaking there are more than 3,000 owner-occupiers. We don't have that number coming forward with applications to decroft. In fact there are only 59 applications I understand to decroft".
MG
"That's important to 59 people though".
PW
"Yes it is very important to those individuals but I just want to get the scale of this into perspective. I am aware of a number of constituency members who have raised particular cases with me since this story broke so I do know the impact that this is having on individuals and we are keen to ensure we resolve the situation as fast as possible and I can give your listeners an assurance that we move as quickly as we possibly can to implement it but we will rely potentially on cross party support to ensure that the measures are implemented as quickly as we humanly can do".
MG
"Any suggestion yet how long it is likely to take before this can be cleared up?".
PW
"My officials are working on this as a matter of urgency as I say however crofting law is very complex as I'm sure you appreciate".
MG
"As it turns out".
PW
"We do intend to publicise our intentions as early as possible and we are not in any way ignoring the imperative that people have to get on with their lives and to progress these projects. I assure the people who are listening to this show that we will move as quickly as possible".
MG
"That was the Minister for Environment and Climate Change, Paul Wheelhouse. Well the Minister's view is shared by the Crofting Commission but not by specialist crofting lawyer Brian Inkster who gives advice on the Scottish Crofters Federation's new legal helpline. He is actually not convinced that there is a problem which should prevent crofters from decrofting their land and he thinks the Scottish Government should take a different approach to the outright moratorium on decrofting".
Brian Inkster (BI)
"There's many holes in the Crofting Act and those holes are very clear ones to do with the Crofting Register but I would say this hole, if it is one, is much less clear and is open to different interpretations. It is an ambiguous situation where different interpretations can be put on a section of the Act. I have not seen the legal opinion that the Crofting Commission have obtained. They have not published that as yet. I have published my opinions which are just on the back of their statement and my view is that looking at the Act this can be interpreted in a way that allows it to do what the Scottish Government intended it to do in the first place".
MG
"But if there is even that degree of ambiguity then that suggests that the law itself, the legislation itself is incompetent".
BI
"You could put it like that. That might be one way of looking at it but as I have not seen their legal advice, my view is that it can be interpreted in the way that I have interpreted it and I can't see easily how there is a different interpretation. I stand to be corrected. If I see their legal opinion then I may change my view on it. Although it seems strange that the legal opinion they have obtained has not been published so that everyone can see it. The Crofting Commission are telling crofters to go and seek legal advice but they are not actually making it public what the legal advice they have obtained is in detail".
MG
"So what do you think needs to be done now?".
BI
"I think first thing is for the Crofting Commission to actually publish their legal advice. I think the Government should be taking decisive action to do something quickly about this. It is a mess and it needs to be sorted out. I have pointed out the Scottish Government have the ability to do so by directing the Commission to take action. My belief is that the Scottish Government are saying that they couldn't direct the Commission to do something that was unlawful but that is based on the fact that they are accepting that the advice the Commission have got states that it is illegal for them to be taking this action. If the Scottish Government got legal advice to the contrary then surely the Scottish Government could still direct them. I also believe that the Scottish Government could at least, and at the very least, be directing them to continue processing applications but not necessarily granting decrofting directions until the mess is cleared up. That would allow the actual process of applications, which on the whole take about 13 weeks to be processed anyway, not to be just put a halt on but to actually process them so they can get to the stage where once the mess is cleared up the decrofting directions can be immediately granted".
MG
"That's crofting lawyer, Brian Inkster there".
NB: Reference made to the Crofting (Scotland) Act 1993 and to the Crofting Act is, of course, to the Crofters (Scotland) Act 1993.
If you are affected by these latest developments surrounding decrofting, and need advice, Brian Inkster and Eilidh Ross are specialists in crofting law. They can assist you from our offices in Glasgow and Inverness.
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