RECENT DEVELOPMENTS in CROFTING LAW: WHAT HIGHLAND PRACTITIONERS NEED to KNOW by IAIN F. MACLEAN, ADVOCATE, TERRA FIRMA CHAMBER
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RECENT DEVELOPMENTS IN CROFTING LAW: WHAT HIGHLAND PRACTITIONERS NEED TO KNOW by IAIN F. MACLEAN, ADVOCATE, TERRA FIRMA CHAMBERS Introduction to the legislation 1. The subject of my talk today is recent changes in crofting law. As you will all be aware, we have been cursed to live in interesting times, so there is no shortage of material to talk about, due to the successive interventions of the Scottish Parliament in 2007 and 2010. In the preface to the most recent book (2000) published on Crofting Law , my colleague Sir Crispin Agnew of Lochnaw Bt., QC , refers to the old joke that the definition of a croft is “an area of land surrounded by a sea of legislation.” That joke has never been both less funny or more true, as those of us who have had to grapple with the legislation in recent times would readily confirm. In that preface, Sir Crispin observed that the legislation “is often obscure and difficult to construe”, and in 2000, he was dealing only with then tidily consolidated Crofters (Scotland) Act 1993 (“the 1993 Act”). The 1993 Act has since been heavily amended by the clumsily entitled Crofting Reform etc. Act 2007 (“the 2007 Act”) and then further amended by the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”), both of which contain important provisions of their own in addition to the changes they effect to the 1993 Act. Both of these Acts passed into law in less than optimal, indeed somewhat chaotic, circumstances, and the ensuing legislation is crying out for a thorough-going consolidation to render it into a usable statutory code, but although section 52 (2) of the 2010 Act expressly anticipates that a Bill consolidating the law on crofting may be introduced in the Scottish Parliament, and reserves the power to the Scottish Ministers, in that event, by order, to “make such modifications of enactments relating to crofting as in their opinion, facilitate, or are otherwise desirable in connection with, the consolidation of the law on crofting,” we should not hold our breath: all the indications are that consolidation is not a legislative priority. In the meantime, we as lawyers must get used to navigating our way round sections of the amended 1993 Act like section 23 ( Vacant crofts ), where after section 23 (3) comes section 23 (3ZA), section 23 (3ZB), section 23 (4), section 23 (5), section 23 (5ZA) through to section 23 (5ZE), then section 23 (5A) through to section 23 (5E) and then through the regular sections 23 (6) – 23 (12), finishing with section 23 (12A). When you consider that many of these sub-sections have their own paragraphs and sub- paragraphs, so that one can find oneself referring in an Opinion to section 23 (5ZC)(b)(ii) of the 1993 Act, and you factor in the current in-house style of the Scottish 1 Parliamentary draftsmen, which invariably requires the reader of a particular section constantly to flick backwards or forwards in pursuit of cross-references to other sections of the statute which qualify the section you’re reading in order to make any sense of the provision, you have what seems to me to be a thoroughly unsatisfactory state of affairs. Sir Crispin, I understand, is not planning a new edition of his book, but Derek Flyn of this parish and Keith Graham, formerly Principal Clerk of the Scottish Land Court, are engaged in preparing a new edition of the still useful Donald J. MacCuish and Derek Flyn book on Crofting Law , which was published in 1990. It is a heroic endeavour, and I do not envy them their task. For the time being, then, the only source of up to date commentary on the new statutory provisions of which I am aware is to be found in Greens’ Annotated Landlord and Tenant Legislation , where you will find a text of the 1993 Act as so amended and texts of the balance of the other two Acts, as annotated by Derek Flyn and Eilidh Ross . A copy of the 1993 Act as amended can be found on the Crofting Commission’s website, and is a useful resource, not least because, if you appear before the Scottish Land Court, you will find that for ease of reference and portability, it is a printed off and bound copy of that text from which the members work when the Land Court is sitting. One final point of practical advice I would proffer in this regard is that any of you who find yourselves regularly having to delve into issues of Crofting Law would be as well to assemble a file containing in chronological order copies of all of the various Crofting Acts as they were passed, because to this day it remains the case that it is sometimes necessary to delve into the history of a croft to establish either its status or its extent (indeed with the advent of the new Crofting Register, this may occur even more frequently in future), and in interpreting the information which such inquiry throws up, it can be important to have a grasp of the statutory provisions which were applicable when particular events in the history of the land in question occurred. The historical background 2. Although this talk is entitled Recent Developments in Crofting Law, it is necessary, in order to understand where we are now, to say something about how we got here. I shall begin by making some general remarks which aim to set the recent changes in their proper historical context. Some of what I’m about to say may seem almost insultingly obvious to some of you, but for those of you who have had less exposure to crofting law, I hope that it will provide some useful insight. 3. As solicitors within the crofting counties, you will all have some passing familiarity with the historical events which led to the 1884 Report of the Royal Commission headed by Lord Napier into the condition of the crofters and cottars in the Highlands and Islands and the subsequent enactment of the Crofters Holdings (Scotland) 2 Act 1886 (“the 1886 Act”). The Napier Commission heard graphic testimony as to the hardships faced by the crofters and cottars in the Highlands and Islands in eking out a subsistence existence on holdings of generally very limited productive capacity under the burden of high rents, and without either security of tenure or rights to compensation for tenants’ improvements. They held their lands on yearly leases terminable by the landlord at a year’s notice. The three cornerstones of the 1886 Act, which endure to this day, were the rights it conferred on crofters: (i) to security of tenure, subject to compliance with statutory conditions; (ii) to have a fair rent fixed for the holding; and (iii) to payment of compensation for permanent improvements on termination of the tenancy. The security of tenure conferred by the 1886 Act was given to “ crofters ”, who were defined by section 34 to mean: “. any person who at the passing of this Act [being 25 June 1886] is the tenant of a holding from year to year, who resides on his holding, the annual rent of which does not exceed thirty pounds in money, and is situated in a crofting parish, and the successors of such a person in the holding, being his heirs or legatees.” The crofter was afforded the right to bequeath his croft to a member of his family, being his wife or any person who, failing nearer heirs, would succeed him in case of intestacy. Thus it is that there are yet many crofts which have passed down through generations of the same family from 1886 to the present day. It is perhaps because of the possibility of an almost perpetual succession, that there has been a tendency, within the crofting community, to lose sight of the essential truth that, as it was explained by the late Lord Elliot in Sutherland v. Sutherland 1986 SLT (Land Ct.) 22 , crofting, for all its statutory overlay, is fundamentally a relationship of landlord and tenant, and that while crofting tenure is sui generis and unlike other forms of leasehold tenure in many respects, it remains a special variety of leasehold, albeit with some features of ownership. 4. Another reason why people tend to lose sight of the fact that while a croft may indeed be part of a family’s birthright, it is still merely a form of leasehold tenure, is that only a small minority of crofters will ever have had anything resembling a written contract of lease. There has hitherto been precious little need of one, given that the critical terms and conditions were all laid down by statute, and subsequent to the coming into force of section 25 of the Small Landholders and Agricultural Holdings (Scotland) Act 1931 , any contract or agreement under which the crofter was deprived of any right conferred on him by any provision of the Acts was void unless approved by the Land 3 Court. The equivalent provision today is section 5 (3)(a) of the 1993 Act, although the formerly unqualified nature of that provision was curtailed by the 2007 Act so that “contracting out” of certain important sections of the 1993 Act, namely sections 8, 12 – 19, 21 and 37 of the 1993 Act, is now by section 5 (3)(b) permissible subject to intimation to the Commission. 5. The 1886 Act was followed by a series of four further Acts, culminating in the Small Landholders Act 1911 (“the 1911 Act”). These five Acts became known collectively as The Small Landholders Acts 1886 -1911 , which was the title of the first legal treatise on this area of law by C.N.