Report by Brian Inkster

What better setting to hold the annual Crofting Law Conference 2017 than the stunning grounds of Lews Castle in Stornoway.

The day was opened with a warm Gaelic welcome from Iain Maciver of the Stornoway Trust, followed by an introduction from the Vice Chairman of the Crofting Law Group Duncan MacPhee. Although not there in person, Fergus Ewing MSP (cabinet minister with responsibility for crofting) delivered a video address identifying the main theme for the conference being Crofting Law Reform.

He referred to the crofters as the ‘stewards of our landscapes and unique habitats’ and promised a commitment to change in this parliamentary session.

When creating new law he pondered which approach should be taken: should we tidy up existing law; use a ‘clean sheet’ approach or change some existing legislation. He also said that in creating new law there must first be consensus in what the outcome of crofting should be.

Patrick Krause, Chief Executive of the Scottish Crofting Federation, was able to tell us what the crofters wanted. His overview was that they do need a new Act but not necessarily a clean sheet; ultimately crofters do not want existing rights taken away. Quick to give the solicitors in the room a reality check was Russell Smith, Chair of the Scottish Crofting Federation. He said that in actual fact crofting law is very low in the priorities of an average crofter but recognised what they did want: the ability to assign, the right to buy and the ability to decroft a house site. Smith finished by commenting: ‘Don’t throw the baby out with the bathwater’, suggesting that he too was opposed to a clean sheet approach.

Duncan MacPhee startled solicitors after sharing his recent experience of securing a mortgage not over just a croft house but a whole croft. Macphee had seemingly gone where no other solicitor had gone before, causing much discussion.
The 71 conference delegates were split into three workshops by the Crofting Law Bill team: Michael O’Neill, Graeme Beale and Adam Briggs. The general feedback post session was that the uniqueness of crofting must to be appreciated when creating the Bill, and that barriers arising from crofting were both cultural and legal.

Those present were reminded that ‘it was a year like no other’ for the Crofting Commission before the introduction of Chief Executive Bill Barron. He said that the Commission’s failure to act as a corporate body in the past was caused by deep splits within the board, but the new commissioners’ commitment to work together was ‘unshakeable’. He informed that individual commissioners will not take individual regulatory decisions and he was enthusiastic to learn from mistakes of last year. Barron recognised the need for radical change in the law after asking two crofters why crofting wasn’t working as it should. A crofter in South Uist told him, ‘Crofting doesn’t work like it should because there are not enough jobs here’ another crofter in Shetland said ‘Crofting doesn’t work like it should because there are too many jobs here’. The 1886 system was designed for the crofter’s way of life then and not today. The issue of entry to crofts was addressed and the Commission aim to improve the situation. He insisted that the Commission will go through any proposed new legislation to ensure it not only supports rights and responsibilities but opportunity too. Mr Barron hopes that the Commission can be trusted to look after crofters again.

Brian Inkster was next up with ‘Trouble on the Scattald’, ‘Scattald’ being the word for common grazing in Shetland. It was suggested that his blogging activity runs in correlation with how badly the Commission are behaving; since he has been blogging less one can only assume that things are well with the new Commission.

Janette Sutherland highlighted the importance of utilising common grazings advising that they make up 6% of the ground in Scotland and maintained that they should be considered at the start of key policy changes. Janette promoted the use of management plans, encouraging people to find out what is on the land in order to generate predictions and maximise common grazing viability.

David Findlay, Solicitor for the Commission then discussed the prospect of a new grazings regulations template, advising that a consultation recently carried out by the Commission would be fed into the template.

It was then for the crofters to share their views. Calum Maclean from Upper Coll said that the effects of the Commission’s actions from 2016 were still felt by individuals, shareholders and the common grazing. Donald MacSween from Ness said that problems arose from crofters where crofts were neglected. Donald Mackinnon, a young crofter and director of the Scottish Crofting Federation, suggested that unused grazing shares could be used by young people as an avenue into crofting until they obtain a tenancy. Renewable energy was then touched on and how important it was to make sure that crofting communities were benefiting from any schemes but also understanding them. All crofters present held that common grazings were a massive resource and that new legislation should reflect this. Iain Maciver spoke from a landlord’s perspective.

He said: ‘People have lost sight of the concept of common grazings: shareholders think that they own the land, and the landlords think that the land has nothing to do with them.’

To conclude the day Robert Sutherland, Advocate, discussed some recent case law, overall illustrating just how inconsistent current legislation is with how crofters work.