MSP Donald Cameron says current crofting law serves lawyers – not the crofters

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There can be no doubt that the crofting world is not a happy place at the moment.
Much of this is down to the ongoing saga surrounding the Crofting Commission, which Brian Inkster described on these pages recently. I don’t intend to go over that ground again, except to observe that this dispute also raises wider points of general importance for crofting.
First, there are serious questions about the operation and governance of the Crofting Commission. This isn’t just about the rules – it’s about confidence in the system. At a recent meeting of crofters in Lochaber organised by the NFUS, I took a straw poll of those present as to whether they thought the commission was fit for purpose.
The answer was a resounding ‘no’.
Some of that feeling might just be the usual resistance towards government intervention, and there’s no doubt we require an official body of some sort to organise crofting. Nevertheless, I would support a thorough review of the commission and its workings.
There are other fundamental problems with crofting regulation. As someone who practised in the area for 11 years as an advocate, I can state my view quite simply: crofting law works for lawyers but not for crofters.
Too often, the law doesn’t reflect what is happening on a day-to-day basis. The current dispute contains one striking example. How do grazing committees deal with large sums of money which are paid following a development on common grazing land?
The legal position is quite plain: any sums due are payable to common graziers as individuals because they are the ones who hold the grazing right. The grazing committee is simply the channel through which those funds are administered.
But, in practice, many grazing committees will hold sizeable funds and want to use them for the benefit of the local community. What happens when these two positions collide: where a common grazier seeks his or her share of the funds in the face of a grazing committee wanting to use the funds communally? And what’s the timeframe for any disbursement of funds? They’re thorny issues which are crying out to be resolved – and I am glad to hear there is now an attempt to draw up guidelines on the matter for grazing committees.
That aside, the law itself is becoming ever more complicated after endless amendments of the 1993 Act: in one recent court case even the eminent Scottish Land Court referred to ‘strange’ and ‘problematic’ definitions in the legislation. If that’s the expert court speaking – then heaven help the rest of us.
Crofting legislation was originally meant to give viable agricultural units security of tenure at fair rents. But too often that law doesn’t reflect modern crofting which, against a backdrop of steady decline in livestock farming in the Highlands and Islands, is much more complex, diverse and business-orientated than the system for which the legislation was created.
In short, we need a comprehensive rewrite of the law – or indeed a new law. Crofting law has to be simpler, more accessible and more reflective of crofting today, which for me should be about encouraging economic revival in our remote rural areas, so we can retain our talented young people in the community, so we can attract investment and so we can encourage rural business – business which is often agricultural but can involve other forms of enterprise too.
Much important work has already been done on crofting law reform and by the crofting law ‘Sump’. But there is deep frustration that the Scottish Government has not responded with more urgency to the Sump’s final report.
One glimmer of hope is the Scottish Parliament’s Rural Economy Committee which will be taking evidence on crofting over the next six months to identify some of the key issues that are causing such disquiet.
Once it has identified the key problems, the committee will be looking at ways to encourage the Scottish Government to move crofting reform up their political agenda.
So it’s not all doom and gloom. Once the current storm clouds have passed, I am convinced there is a bright future for the sector.
But let’s ensure the law serves crofting, and not the other way round.