Modern approach

Peppered across the Highlands and islands, the townships that make up Scotland’s crofting communities are part of a heritage dating back more than two centuries.

Whether as tenants or owners of their own croft on a few hectares of land with access to common grazing sites, the model of land tenure is one unique in Europe and a sharp contrast to the large-scale industry of modern agriculture.

And with more than 18,000 registered crofts, covering collectively hundreds of thousands of acres, the fight is now on to ensure that the way of living becomes as much a part of Scotland’s future as it is of the past.

In 2013, crofting has been one of the most high-profile areas of the rural affairs agenda, leading to legal rows and emergency legislation passed at lightning quick pace through the Parliament.

But those who have been most involved in this year’s debate have told Holyrood that the impact of this could be that the ball starts rolling towards the first consolidated piece of legislation on crofting since 1993 and one of the most important amendments since the 1880s.

Far from being an outdated way of life, Environment Minister Paul Wheelhouse said he wanted crofting to thrive in Scotland.
“Crofting has a very important role to play,” he said. “It’s got a social dimension to it and a cultural dimension but in terms of the form of agriculture it takes, it has a very low impact on the environment. It is intrinsically in many cases, high nature value farming.

“We need to achieve our biodiversity targets and some of the best examples of our richest environments are in areas in crofting counties.

“What we have to do is get more intensive agricultural production to take on board some of the messages being delivered by crofters.”

The first Crofter’s Holding Act in 1886, which established the crofting counties of Argyll, Caithness, Cromarty, Inverness, Orkney, Ross, Shetland, and Sutherland, gave security of tenure to crofters as well as establishing a land court to resolve disputes between landowners and tenants.

Since then, reform has mainly been in the shape of individual acts – such as the introduction of the right to buy in 1976.

That heightened national focus on crofting began in February when Wheelhouse had to intervene to prevent the Scottish Government selling off the sporting rights for crofters on Raasay near Skye. While quickly resolved, it raised questions over land use in Scotland.

But behind the scenes, there was a far greater issue brewing. The Crofting Commission, established under the last piece of legislation only three years before, suspended the right of owner-occupiers to decroft their land – essential for any non-agricultural development, such as building a home or installing a wind turbine to provide off-grid power.

Although legal opinion was divided over what action to take, the Scottish Government decided an amendment to the 2010 Act was required – and in the space of just a few months, that was introduced in June and given Royal Assent by the end of July.

Crofting Commission convener, Susan Walker, said the organisation was pleased with the outcome and as soon as the Act was passed it was able to begin processing the 50 applications for decrofting which had been put on hold.

She said: “Once it was recognised there was a problem within the legislation, there was consensus from a range of different parties that this needed to get sorted.

“There was good support from the Parliament for that Bill and it was put through speedily which showed the level of concern everyone had.”

This quick progress put particular pressure on the Rural Affairs, Climate Change and Environment Committee and officials to scrutinise the legislation.

But Wheelhouse said: “I’d be the first to admit we had reasons of necessity to speed up the process where there is a risk, you’ve got less time to scrutinise the detail.

“I do recognise the pressure they felt under in the committee in particular, but we got there.”

Concerns were raised that the speed of progress could lead to a rushed piece of legislation.
Wheelhouse added: “Government officials, cognisant of the fact that this was a concern people had raised, had gone over the detail, again and again.

“It’s longer than some had suggested was necessary, but the point is that the measures we put in place are as near as we can get to provisions for those who are tenant crofters.”

During the course of the Bill, even though its course was faster than usual, other issues were raised on crofting, while these were not included in the most recent legislation, it is now apparent that Parliament will have to return to them sooner rather than later.

Crofting law expert Brian Inkster, who was one of those who questioned the commission’s original decision to suspend decrofting, said: “If you’re getting different lawyers interpreting the law differently that shows the complexity that is there.

“Any law is going to be subject to different interpretations, but you want it to be as clear as possible.”

He added: “There are lots of quirks that crofting lawyers have known are problematic and cause difficulties for lawyers and their clients, crofters and third parties and a lot of these issues came out in the debate.

“MSPs became aware of them and more actively aware that there were issues that needed resolving, there’s been a realisation and it maybe has taken the Crofting Commission to take this policy view to bring to the fore unwittingly.

“The Government now realises there are a lot of issues that need to be tackled.”

The Crofting Law Group, of which Inkster is honorary secretary, has created a ‘sump’, a forum to gather ideas, potential changes to policy and ministerial direction.

Headed up by retired crofting lawyer Derek Flyn and Keith Graham, the former principal clerk of the Scottish Land Court, it is expected to have collated the information by the end of the year and will present a report to the Government next spring.

While Inkster says that “more pressing problems” may need similar legislation to the decrofting one this year, he would hope the Government will be able to bring either an act that consolidates all the previous legislation together, or a completely new law.

While he said he doubted this would be within the lifetime of the current parliamentary session – which ends in 2016, he said: “If all the problems have been identified that exist by spring 2014, there is no reason the Government could not have something sorted within the lifetime of this Parliament, if they put their mind to it.”

Wheelhouse, who says he believes the ‘sump’ is a positive suggestion, said the Government was already engaging with people involved in crofting through its own officials and the Crofting Commission to identify areas of concern.

“There may be administrative solutions in some cases, there may need to be legislative fixes in others and until we bottom it out, we won’t know what fix is required.

On the question of new legislation to tackle the “complex and sometimes impenetrable nature” of crofting law, he said it could mean consolidation, a “consolidation plus” option, or, as some have suggested, scrapping it and starting again.

“We have to do something to make it easier to interpret, if nothing else, but I’m open-minded,” he said.

When any new legislation is brought forward, it depends on the workload of the RACCE committee and where it fits into the rest of the SNP Government’s work programme. So could it be achieved by the time of the next elections in 2016?

Wheelhouse admitted this is a “big question”.

“It depends on the scale of the task,” he said. “We would need to think about where there might be a window on dealing with something of this scale; it’s not an issue we’ve had a chance to discuss with Minister for Parliamentary Business Joe Fitzpatrick, or indeed with the Environment Secretary Richard Lochhead.

“But we need to identify, first and foremost, are there substantive issues of the type we’ve just fixed that are significantly serious that only a legislative fix will work.”

At the Crofting Commission, Walker said while legislation introduced over the years had altered some aspects, crofting itself had not changed.

“Land tenure was changed in 1976 with the right to buy, so you now have tenant owner-occupiers or tenants, but in many respects, the fundamental system has not changed. It is still about communities of people living in the North West Highlands and contributing to their local community.

“I’ve heard that from people in England, from other parts of Scotland and from other countries, [they] see it as a model of an excellent way to give people access to land.”

She agrees that this sense of tradition is something worth preserving in modern Scotland.
“That’s why the Scottish Parliament or various parliaments think it worthwhile investing time introducing new bills, or continuing the system of regulated land.

“That regulation is part of its strength, it isn’t just an open market. That’s what can make sure the land carries on providing these wider public benefits, not just for the individual crofter of the township, but for the whole of Scotland.”