Inaction over decrofting debacle - what now for crofters?

8 March 2013

The ongoing confusion surrounding last week’s policy decision by the Crofting Commission to suspend decrofting applications from owner-occupier crofters looks set to continue. The organisation, having sought further legal advice, has reaffirmed their view that, as the law currently stands, there is no provision that allows owner-occupier crofters to decroft. It is not yet clear when a resolution will be found. The Commission have suggested owner-occupier crofters “seek independent legal advice as to possible remedies”.

Inksters Solicitors have reported on the potential implications of this decision with Brian Inkster giving a clear legal opinion as to why the Commission are wrong to take this action. That opinion has not been countered in any way and the Commission, unlike Inksters, has not published its legal advice.

While the full impact of the decision is only just becoming apparent to many crofters, there may yet be a need for those affected to seek remedies to the problem – which may involve having to take action against the Commission itself. This could be a daunting and potentially costly prospect for most crofters.

However, there may be help in the form of the Scottish Government itself. Under Section 1 (3) of the Crofters (Scotland) Act 1993, the Scottish Ministers could direct (in other words, compel) the Commission to process the applications, if they felt it was necessary. They have used the provision before, and could do so again.

If the Ministers fail to do so, what can be done? Again, the Act might assist, but the course of action is slightly more involved. Under Section 53(1) of the Act, an individual may put to the Land Court a question of law arising from the Act, in order to have that question answered. Indeed, the Commission could have done this themselves in advance of making its policy decision but chose not to do so. There would be implications in terms of time and cost; although it is possible that legal aid would be available for eligible persons.

Perhaps a last resort – one that the Commission will wish to avoid at all costs – is having the decision judicially reviewed. Judicial review is an action heard in the Court of Session and involves the Court reviewing the decision (or failure to take a decision), and will consider whether that decision or failure was wrong in law, and whether the correct process was followed. If a public body such as the Commission has misconstrued the law, depriving the person (or class of persons) raising the petition of their rights or benefits they would otherwise be entitled to expect, there may well be grounds for the decision to be reviewed.

Brian Inkster said “It would seem that the most sensible course of action is for the Ministers to act under s. 1(3) to compel the Commission to process decrofting applications from owner-occupier crofters. This could be the swiftest course of action providing the quickest relief to those looking to decroft. Failing this, if the Commission continue to take this stance it may leave those affected with no option but to seek redress in the courts.”

The Commission has “expressed a willingness to prioritise any urgent cases or where individuals are suffering hardship resulting from the situation”. However, Brian Inkster pointed out that this is giving false hope to crofters because “how can the Commission prioritise anything when they have put a complete halt on processing applications”.

Inksters can advise you on the implication of this issue. There may also be other ways to circumvent the problem depending on the outcome of any further legal advice or action taken by the Commission. Contact Brian Inkster in Glasgow and Eilidh Ross in Inverness.



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