Introduction
I am a solicitor in private practice, based in Inverness. I practise crofting, property and rural law, specialising in the former. I have worked in the field of crofting law for almost ten years; as a qualified solicitor for almost half of that time.
I welcome in general terms the formation of the Land Reform Review Group, and I note that the Group has been asked to “develop innovative and radical proposals that will contribute to Scotland’s future success”, and that the Government expects the Group’s Report to include recommendations as to how further land reform may be promoted and secured. Thus, the Group proceeds on the basis that further land reform is required and is to be welcomed.
Ten years is not a long time in legal terms. The pro-land reform lobby point to that passage of time and say that nothing has happened since the LRSA 2003, and that further land reform is long overdue. My own experience of the application of the law is that it takes time for people, lawyers and governments to become familiar with an act of Parliament, and for a body of case law to be established. The last ten years have been spent coming to terms with the LRSA 2003, and so while the timing of the LRRG may not have come a moment too soon for some, neither, in my view, is its formation overdue.
To take the example of crofting legislation, most of us working in that field long for a period of time to allow us to see how the reform acts of 2007 and 2010 will operate in practice. Not only does government have no appetite for further crofting reform (nor even consolidation, more of which below); neither, in my experience, do crofters or crofting lawyers.
The LRSA 2003 is not, of course, the only act of Parliament which governs tenure, ownership or use of land. There are numerous others, and I note that the Group’s remit is not restricted to consideration of existing legislation. Nonetheless, my own experience has been of the crofting acts and the LRSA2003 and so my response relates to those acts only.
Crofters (Scotland) Act 1993
The two acts reforming the Crofters (Scotland) Act 1993 (i.e. the Crofting Reform (Scotland) Act 2007 and the Crofting Reform (Scotland) Act 2010) have preoccupied the crofting community (not as defined in the amended 1993 Act but in a wider sense meaning everybody who deals with or is affected by crofting legislation) since I started working in the field in 2004. I as mention above, I do not believe there to be any appetite for further reform of the crofting acts.
However I will mention two matters of crofting law which may be of interest to the LRRG.
Firstly, the 1993 Act needs, at some point, to be consolidated. There does not have to be any significant amendment of the Act (although if anything is amended section 19B ought to take priority, containing as it does many anomalies and errors), but consolidation is badly needed to remedy the current confusing structure and referencing.
Secondly, I would encourage either the resurrection of the crofting mortgage provisions (which appeared in a draft of the 2007 Act) or, alternatively, government assistance (in the forms of loans rather than grants if necessary) to assist those wishing to purchase croft land or croft tenancies. It is well documented that commercial mortgage lenders will not lend if the land over which security is to be taken is registered croft land (whether owner-occupied or tenanted croft land). This is understandable. But the effect, when coupled with the increase in land values (caused by various factors) is that crofts on the open market are only available to cash purchasers. These cash purchasers tend to be older people who have paid off a mortgage elsewhere, or else people who have sold property in a more expensive part of the country, allowing them to make a cash purchase.
Of course there is no reason why such people should be precluded from purchasing croft land or croft tenancies, but the current financing position means that young people and local people are excluded from the market in croft tenancies. Contrast this with the ‘regular’ housing market. The availability of mortgages (even now, post-2008, although obviously the recession has had an impact here too) ensures that there is a greater diversity of potential purchasers, and ensures that houses are not only available to older people or people from out with the area, but also to younger people or to local people. The market in croft tenancies and croft land could, and in my view should, be similarly opened up.
Rather than resurrecting the crofting mortgage provisions, the Government could make loans available (at commercial rates, if necessary, thus actually bringing money in to the government) to people wishing to purchase crofts. This is not proposed as an alternative to the crofter housing grant (which is available to crofters and owner-occupier crofters once they are a crofter), but as an additional but different form of finance which will assist people to become crofters in the first place.
If the Government is not minded to introduce such a measure, the crofting mortgage provisions ought to be re-examined, updated and refined, and introduced to Parliament by way of a separate bill. Until something is done to diversify the market in croft tenancies, young people and local people will find it increasingly difficult to become crofters.
Land Reform (Scotland) Act 2003
Part 1 – The Right to Access
The only comment I would make in respect of Part 1 of the LRSA 2003 is that it is an increasing frustration and concern to crofters that persons exercising their right to responsible access can, presently, do so quite legitimately with a dog which is not on a leash. The Act requires only that the dog is under control.
This causes problems for crofters because many dog owners consider themselves to be in control of their dogs when in fact they are not. Being in control of a dog in the absence of livestock is one thing; being in control of a dog in a field of sheep is another.
The sensible solution to this, in my view, is to amend Part 1 of the LRSA 2003 to provide that dogs must be on a leash when in a field with livestock. It is perfectly reasonable for dog owners to want to exercise their dogs without a leash (although of course a dog should always be under control) but it is also reasonable for crofters to wish to protect their livestock. There is no reason why both groups cannot be accommodated by way of a simple amendment.
Part 2 - The Community ‘Right to Buy’
The question of whether communities ought to have an enhanced right to purchase their land is fascinating and complex. The LRRG will be aware of the activities of Land Action Scotland (LAS) in Applecross and Bute last autumn. Much can be learned from the experiment, but the most important lesson which I took from the campaign is that the change to community ownership of land (which, despite the campaign’s assertions to the contrary was, in my view, the intention) can only be successful if there is the necessary will within the community for that to happen.
It might be a ‘chicken and egg’ situation; where community ownership is successful, communities strengthen and become healthier and more independent. But did the change in ownership cause the healthy community, or vice versa? I offer no answer to that question and it may be that no single answer exists.
What is clear to me is that a high level of community involvement, motivation and cohesion is essential before successful community ownership should be considered. Where such communities exist and where community ownership is achieved, the results can be extraordinary.
It is also important that a community contains individuals with a broad range of skills and experience, for obvious reasons. Not every community will wish or will be equipped to form a community company and take ownership of their land. That it not to say that all of those currently owning land are so equipped, but there is little sense in replacing one problem with another.
Therefore I would caution against any enhancement of the existing community right to purchase large areas of land without a corresponding obligation to demonstrate a high level of support and motivation and cohesion within that community. The procedures might be simplified (and I make no comment on whether they ought to be), but the level of support and cohesion required must be retained at the current level, at least.
It might be that there are introduced various levels of community ‘right to buy’. Perhaps communities wishing to purchase, a small area for a single, specific purpose, for example a village shop, ought to have a stronger ‘right to buy’ than communities wishing to purchase a large, multi-faceted estate, to reflect the fact that the latter is a more demanding project.
Part 3 – The Crofting Community Right to Buy
There has been such limited activity in relation to Part 3 of the LRSA 2003 that it is difficult to establish what, if anything, about it is in need of reform.
I have little doubt that there will be some crofting communities who have been waiting for the decision of the Court of Session in the case of Pairc Crofters Ltd and Pairc Renewables Ltd v The Scottish Ministers before embarking on their own journey. The decision was issued on 19 December 2012 and was of course excellent news for the crofters of Pairc (but not, of course, Pairc Crofters Ltd), answering both questions referred by the Stornoway Sheriff Court to the Inner House in the negative and confirming that this Part of the Act are compliant with the ECHR and within the legislative competence of the Scottish Parliament.
This part of the LRSA 2003 particularly would, in my view, benefit from some time to mature before any further amendment is considered. It is likely that other crofting communities will now attempt to move their ambitions for community ownership forward, and equally likely that their paths will have been smoothed by the crofters of Pairc.
Eilidh I.M. Ross
Beauly, 11 January 2013.