Legislative competence and crofting community buyouts
19 December 2012
In the Outer Hebrides, on the island of Lewis, there is an estate called the Pairc estate. The crofters who live there would like to buy the estate from the landowner and current tenant.
The Land Reform (Scotland) Act 2003 (the “2003 Act”) Part 3 enacts provisions which enable the crofting community to purchase compulsorily, provided the conditions set out in the statute are met. The 2003 Act sets out an application process which requires to be followed by a crofting community body, as well as various other matters such as compensation rights for the landowner and tenant. Part of the application process is a ballot of the crofting community to show approval of the buyout, and there are regulations governing ballots (the Crofting Community Right to Buy (Ballot) (Scotland) Regulations 2004 (the “Regulations”). The consent of the Scottish Ministers is required to be given before a right to buy can be exercised, and they must be satisfied a number of statutory criteria are met.
The landowner and current tenant have raised two actions in which they suggest that Part 3 of the 2003 Act and the Regulations are outwith legislative competence of the Scottish Parliament and the Scottish Ministers. They suggest the legislation violates Articles 6 and 1 of Protocol 1 of the European Convention on Human Rights, essentially as it contains insufficient procedural safeguards for the landowner and tenant. One of the two actions is an appeal from the decision of the Scottish Ministers to consent to the application, brought before the sheriff in Stornoway. The sheriff referred the issue of legislative competence to the Inner House under devolution issue procedure.
In Pairc Crofters Limited v Scottish Ministers  CSIH 96 the Inner House determined the reference from the sheriff at Stornoway. The court found the 2003 Act and the Regulations are not outwith legislative competence as they do not violate Articles 6 or A1P1. Points of particular interest in the decision are: the court’s reminder that statutes are not interpreted in a vacuum and statutory provisions operate in conjunction with duties on the Ministers to comply with Convention rights and common law fairness; the extent of the Land Court’s jurisdiction if an application is referred to it; and the application of the principle of legal certainty.
Anna Poole of Axiom Advocates acted on behalf of the Scottish Ministers.
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