Am Bratach No. 213
July 2009


Crofting ‘reform’ as I see it
by Iain MacKenzie

“Vassals: in a feudal relationship with landlord, their feudal superior.” That is the description the well respected, late DJ MacCuish, crofting law expert, used to describe tenant crofters in a paper delivered in 1968.

He was not being derogatory; rather he was beginning to outline his case for improving the crofters’ lot.

MacCuish regarded much of the law relating to crofting, particularly Statutory Conditions, which have remained for or less unchanged since 1886, as out of date and an impediment to the improvement of crofters’ conditions. He argued that security of tenure, which never was absolute — though nearly so in 1886 — had been much eroded and was very much more conditional in law by 1968.

Tenant crofters and, I suspect owner-occupiers, with interests in common grazings, to a lesser degree, are corralled in this unsatisfactory relationship because they rent undeveloped land, and are required by law to provide the permanent improvements, including the dwelling-house, which enable them to work the land. Importantly the tenant neither owns the land his house occupies nor the permanent improvements he makes. He may apply for compensation from an incoming tenant before the Land Court or come to some private arrangement with the incoming tenant.

However in law the improvements must be suitable and appropriate to the size, agricultural and letting value of the croft. The 1955 Act, and two pieces of case law, have defined the position.

In Humbert and others v Maciver 1961 the Land Court determined that Mr Maciver, who had built his modern bungalow at a cost of £1,900 in 1951, and spent another £200 in upkeep over the next decade, was only eligible for £400 compensation.

Their reasoning went as follows: the croft was 1.25 acres in extent, of low agricultural and low letting value. Mr Maciver’s bungalow was much too good for such a croft.

The Court observed: ”It is difficult to visualise anything but the most primitive house as being suitable to a croft so small and of so little actual or potential value as this one. There can no doubt that the dwelling-house which has been erected is much too good for the croft and to that extent it must be regarded as unsuitable. It is impossible, considering the size and letting value of the croft, to award a sum which will reflect the full value of the dwelling-house, for such a valuation would inevitably overburden the croft as a lettable agricultural subject — and it is as an agricultural subject that it must be regarded, small though the area is.”

How many of us now in possession of tenanted crofts would be fleeced by these rules were we to go before the Land Court?

The landlord has the right to repossess croft land for development and since 1976 has had to pay the crofter half of the development value, which on the face of it, seems reasonable. However a quick trawl through case law demonstrates just how limited a toe-hold crofters have, and now that the Land Court costs are almost beyond the purses of most crofters, one has to ask how secure is a tenancy. A right is only valid if one can afford to defend it. There used to be a recognition among men of public affairs that proportionality and natural justice were values worth preserving. Now it appears that in stakeholder-driven and dominated Pentland House, crofters who do not have the same legal and monetary status as their feudal superiors, are not deemed worthy of the protection they once were.

In 1911 crofters were given permission to “make such use of his holding for sudsidiary or auxiliary occupations as, in the case of dispute, the Land Court may find to be reasonable and not inconsistent with the cultivation of the holding”. Fifty years later the crofter was given the right to erect buildings or other structures or execute such works on his croft which are reasonable and required for subsidiary or auxiliary use and which will not substantially interfere with the croft as an agricultural subject. Crucially such works and building will become permanent improvements and rank for compensation on tenancy termination at agricultural value.

How many tenant crofters, should they go to, or be brought before the Land Court in breach of Statutory Conditions, would be caught out and lose their life savings by above rules ?

Donald John MacCuish in his 1968 talk asked crofters of forty years ago to consider how many of them could be in breach of the statutory conditions. That in,my opinion, is a salutary warning to all of us, including the “reformers”, whose sole goal in life seems to be to load us up with further and more intrusive conditions which ultimately and inevitably will lead to evictions, great pain and substantial loss for the victims and their families.

The Act of 1976 gave crofters the absolute right to purchase the site of the dwelling-house and an appropriate area of garden, as well as a share in the development value of land resumed from crofting tenure for development. Basically this act enhanced the status of the crofter to that of more than a protected tenant. However the delaying tactics and obstruction of some landowners was never anticipated and, if it was, there seems little provision to mitigate this nowadays as estates employ expensive factors and even more expensive sharp-suited lawyers to frustrate the will of Parliament.

Inherent in this Act was the belief that croft land should remain under crofting regulation. Permission has to be sought from the Commission and ultimately the Land Court for decrofting to go ahead. Which brings me to a hobby horse: had civil servants not leaned on successive Commissions and had the Commission made use of the powers available to it, we would not be debating these issues at the present time. Moreover had the Commission taken seriously the point that the Crofting Acts were enacted “expressly” for the benefit of tenants,as its over-arching principle, much of the broo-haa since devolution might have been avoided and crofters spared the worry and fear which so many now have to contend.

Given that the absence of security of tenure worried the knowledgeable MacCuish all those years ago, we must consider with care what was put in place in 2006/07 and what is proposed in the Draft Bill, recently published. At the outset one has to record that neither of these strengthens the rights of the crofter; both dilute them considerably.

The Act of 2006/07 gives the Crofters Commission further powers to intrude upon the rights of individuals. Family assignations now have to go before them. I know of one case in Assynt where a croft which has been in the family for five generations, bequeathed by one brother to another, has been in the system for over a year.

Section 12 5A allows the landlord or any member of the local crofting community in the locality to complain to the Commission if they think a crofter is breaching his statutory conditions, and in particular not working the croft properly. Failure to comply will result in proceedings before the Land Court which can end in dispossession. For a tenant this could mean the loss of his home as well as the loss of his croft. 5B has equally draconian proposals relating to neglect, but where the crofter, for the purposes of conserving (a) the natural beauty of the locality of the croft; or (b) the flora and fauna of that locality, engages in or refrains from, an activity, then that is not to be considered as neglect.
The proposals in the Draft Reform Bill, currently out to consultation, continue the dilution of crofters’ rights and add further rules to the list of infringements which can end in ejection from the home and croft.

The Standard Security mechanism, whereby it is proposed that a crofter may borrow against his registered tenancy, will allow a bank to repossess the house and the whole croft should a tenant default on the loan and a suitable replacement cannot be found. The bank will then be permitted to decroft and sell the house and the land for whatever purpose brings in the most money. All the while, the evicted crofter has to maintain things for the poor bank. Some reform, some incentive.

The Commission is to be given further power to instigate eviction proceedings against absentees and against those considered not to be cultivating the croft or not putting it to some purposeful use. In the case of own-occupiers the croft would be declared vacant and a tenant imposed. Again the conservation rules would apply as an opt out. 26H gives the Commission the duty to terminate a tenancy if it is satisfied that termination is in the general interest of the crofting community in the locality of the croft. The Commission must act unless there is a good reason not to. Failure to vacate allows the commission to apply to the sheriff for a warrant of ejection. The sheriff must grant the warrant unless the crofter can show cause why it should not be implemented. This is a new departure. The Commission does not have to prove its case in court and is to be given the right to recover costs.

Residency requirements are full of uncertainty. Why would anyone go into crofting when, “the Commission may grant consent to such conditions as they consider it appropriate to impose which may, in particular, relate to the duration of absence” (21 B).
Those now legislating for crofters are swimming against the tide of history. Freedom of the individual and human rights are increasingly recognised in all parts of the globe, save for the Smart New Scotland. Failure to abide by the residency rules will be dealt with using the civil procedure and its lower standard of proof — “on the balance of probabilities” — as opposed to the higher criminal standard of “beyond reasonable doubt”, which ought to be used given the desire to criminalise crofters and the severity of the penalties involved.

Towards the end of the recent consultation meeting at Lairg, at which the vast majority of crofters present made known, in robust fashion, their total opposition to all the proposals in the Draft Bill, a recently arrived crofter to the area under the tutelage of one of the main supporters of these totalitarian proposals sought permission to address the audience. With the insensitivity and ignorance that only these people can display, he informed us of the great privileges we enjoyed.

True to form, he mentioned the support systems, and of course the wonderful environment we are so lucky to inhabit, and that despite an earlier eloquent intervention from a local crofter regarding the dire plight of livestock producers and the exodus of sheep and cattle from the hills.

This writer, known for his short fuse, shot back at him in emotional terms, reminded him of the history of the area and that his own forebearers were burned out of their home in the early 1800s and had to spend a winter in a cave above Little Loch Broom until such time as they could arrange passage to the colonies and the erection of a new home for those who stayed, their neighbours being ordered not to take them in.

More recently, in 1914, my grandfather was granted a croft tenancy on the Scorraig peninsula. He followed a family which had been thrown out because they took lichens off some trees to dye their wool.

It would appear that those in authority are turning the clock back. We are about to witness the substitution of one form of tyranny by another; subjugation by landlords being replaced by state authoritarianism, unless we take the very necessary steps required to persuade MSPs to vote these proposals down.

Iain MacKenzie and his wife moved to Elphin in 1996 after his career in teaching was shortened by myalgic encephalomyelitis (ME). House, croft and stock development and politics have been their passions.

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