John King in his response to my letter on Gaps in the Register perhaps misses the point.

For the avoidance of any doubt, my letter was not a criticism of RoS as such. They unfortunately have to live with what the Scottish Government has created. If any criticism was directed at RoS, it was for making out that the Crofting Register is more comprehensive in what it covers than it actually is.

I don’t think I can agree with Mr King’s statement that “the information that the Crofting Register will show was considered carefully by Parliament”. On the contrary, with around 230 amendments at stage 3 of the bill, that had to be dealt with in around three hours, consideration was less than careful and was described at the time by an MSP as a “shambles”. The BBC reported that “Holyrood descended into chaos”. No doubt amongst that chaos the need for the first purchase of a tenanted croft to trigger registration in the Crofting Register was lost sight of.

I thank Mr King for advising me that sublets are not under consideration to be brought into the Crofting Register and will not form part of it. I was, until now, unaware of that fact. This is disappointing and will mean that the existing Register of Crofts will have to remain open in all time coming and referred to in addition to the new Crofting Register at every turn to clarify the position.

This, in my opinion, is a quite ridiculous state of affairs. The explanatory notes to the Crofting Reform (Scotland) Act 2010 state that the Crofting Commission “will maintain the Register of Crofts until such time as it has been completely replaced by the Crofting Register. The Commission will continue to keep administrative records of regulatory decisions they have taken in relation to crofts; however, the new Crofting Register will provide a definitive and current record of the extent of, and interests in, a croft. Once the Crofting Register is complete, it will be necessary to repeal the provisions relating to the current register.” If sublets are not to be included in the new Crofting Register then I cannot see how that apparent intention can ever be fulfilled.

Anyone who practises crofting law will know that the information held by the Crofting Commission on grazing shares is usually woefully inadequate and often inaccurate. This is why an accurate record could and should be created as part of the new Crofting Register. The opportunity is there and should be seized. Failure to do so will leave us with a register that is not really fit for purpose.

When it comes to deemed crofts Mr King is, in my opinion, simply wrong when he says that such a croft “is not an area of land with defined boundaries”. The boundaries are the definable common grazings of which the deemed croft is a pro indiviso share in. No different from registering a common back green in a Glasgow tenement in the Land Register, and RoS has plenty of experience on that front.

Mr King goes on to say: “particularly if the common grazings from which it originates have not been registered”. Well, registration will have to occur, to my mind, when an application to register a deemed croft is lodged accompanied with a plan of the common grazings to which that deemed croft relates. In an ideal world all common grazings would have been mapped prior to the first croft being registered. I have always maintained that this is how the Crofting Register should have been created.

When RoS receive their first application to register a deemed croft they may, in hindsight, agree with me. If they refuse to accept such an application, which appears to be their current stated intention, then I believe the applicant will have a clear right of appeal to the Land Court under s 20 of the 2010 Act for that “act or omission of the Keeper”. I look forward to that first Land Court case with some interest.

Brian Inkster, Inksters Solicitors