Lesley Riddoch: The islanders Holyrood land reform left behind

Maybe it should come as no surprise to learn that the crofting community right to buy has become a bright idea surrounded by insurmountable obstacles.

Since it was introduced in 2003 it has never been used.

Too complex, too time-consuming and latterly quite unnecessary on the Western Isles, where the first community buyout on North Harris in 1998 prompted landowners to wake up, smell the coffee and reach amicable sales with local people.

But not always.

Some obstinate, absentee landowners simply refused to play ball.

What then?

For the last seven years, the 250-odd inhabitants of Great Bernera have been finding out.

Despite forming a buyout trust, organising a vote, mapping much of the island and waiting two years for legal advice from the Scottish Government – their options today are pretty bleak.

They can thole the high-handed actions of their landowner – a 26-year-old business administration student living in Germany, they can spend more years trying to get Scotland’s creaking crofting land buyout mechanism to work or they can just leave.

How can this still be happening after a bold “land riot” by Bernera islanders 150 years ago that hastened the passage of the Crofting Acts and three Land Reform Bills in the new Scottish Parliament?

The answer is simple.

Legislation works if landowners play nice.

If they don’t – you’re stuck.

Great Bernera in Loch Roag is linked by a bridge to the west coast of Lewis. The population was 250 in 2016 and it’s slightly more today. Actually, that’s part of the island’s problem. Available land and housing have been bought by wealthier, older incomers and rising prices have forced younger locals to leave. The care home, shop and now the school have all closed.

Why the decline?

It’s quite a story.

Great and Little Bernera were owned by Count Robin de la Lanne-Mirrlees who died in 2012. He was an aristocrat, friend of writer Ian Fleming and apparently, part inspiration for James Bond. He left the island to his grandson Cyran who lives in Germany with Patrick – his son and Cyran’s dad – who acted as executor until the lad turned 25. But the Count told islanders they should have first option of buying the land if it was ever put up for sale.

Count Robin de la Lanne Mirrlees

So, after his death, wheels were set in motion and 85% of the islanders voted for a community buyout.

But Patrick was apparently disappointed with the £70k price tag attached by the district valuer. It’s low because the whole island is in crofting tenure, unlike neighbouring islands which have sold for more and he suggested the community was somehow responsible for that low price.

After several unsuccessful attempts to reach agreement, local crofter and civil engineer John Porteous went to Germany in 2017 with an offer from the Great Bernera Community Development Trust (GBCDT) of £135k (almost double the valuation price) – composed of a £30k time-limited grant from the council, an expected £60k from the Scottish Land Fund and a big community fundraising campaign to find the rest.

But Patrick stalled. He never said no to the idea of a sale which kept him, nominally, a willing seller. But he refused to settle on a price and has made constant changes to his demands ever since.

Originally he wanted to take Little Bernera out of the deal – even though the uninhabited neighbouring island provides common grazing for Great Bernera crofters, and houses the islands’ graveyard.

The idea that their ancestors’ graves could be sold off was a turning point for many crofters – and the potential loss of grazing was also significant. A similar dispute in 1874 prompted the threat of evictions and the Bernera Riot – which developed into the first successful legal challenge against clearance landlordism and the 1886 Crofting Acts.

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Division of the islands was dropped but since then, according to John: “It’s been like wading through treacle, dragging an anchor. The owner doesn’t say no, he just makes endless queries and objections to our offers.”

For anyone on the Western Isles this rings bells.

Barry Lomas, owner of another Lewis estate called Pairc, thwarted a Crofting Community Buyout there by 13 long years of court action and legal process. A sale was finally agreed – not using the legislation but after a 2012 Court of Session ruling that the landlord’s human rights weren’t breached by the community’s bid.

In fact, no-one has successfully used the cumbersome crofting community right-to-buy legislation in almost two decades.

But the despairing Bernera islanders felt they had no option but to embark on the same difficult journey in 2020, guided by the Scottish Government’s Community Land Team. They had to produce a precise (to the metre) map of the croft boundaries on the island, change the constitution of their community trust and wait for Holyrood lawyers to decide if the Scottish Government’s own Community Empowerment Act 2016 might impose new hurdles.

It seems that it did.

In March 2020 the Land Team demanded even more careful mapping – showing every water course, drain, gate and fence – and announced that 20-25 crofters might be ineligible to vote, because their house sites were on land gifted by a previous landowner and thus had no land boundaries with the estate.

Why did that matter?

The islanders didn’t get an explanation.

During lockdown, six months elapsed between emails from the Scottish Government team and islanders began planning buyouts of smaller but easier-to-access parcels of land instead.

Why the two-year silence from the Scottish Government team?

They say: “We have been working with the community group on Great Bernera to allow them to submit a Crofting Community Right to Buy application, however at this point in time, they are not eligible to do so. We will continue to advise the group to help ensure that they are a compliant group under the Land Reform Act.”

Perhaps Government lawyers fear an expensive repeat of the long, draining Pairc experience.

“Hostile” buyouts are certainly demanding, but the status quo isn’t a walk in the park either.

Neil James MacAulay has lived on Bernera all his life and has three daughters who went to university in Glasgow. By chance they all married Lewis boys, have five children between them and want to come home. Neil started trying to decroft his land two and a half years ago, offering 15 times the annual rental to the estate as the law stipulates. But there’s been no reply despite endless letters and emails.

It’s the same story for his sister on the neighbouring croft. Her three children have nine youngsters between them – enough to re-open the local school.

But that won’t happen unless the Estate acts.

Neil James says; ‘The landlord’s tactic is not to reply. So, nothing happens. And that can go on for years. The Scottish Government should change the rules so he loses the land if there’s no agreement within six months. It’s wrong that we lose our school and the chance to have kids and grandchildren around us just because of one man who doesn’t live here and doesn’t seem to give a hoot.”

Bernera Estate has also reportedly demanded “compensation” from other local people including a Church of Scotland minister, to complete perfectly legal land transactions.

Local SNP MSP Alasdair Allan says: “For people in the Western Isles to be bound by the increasingly unreasonable whims of an absentee landlord is completely unacceptable. Holding up local development, by demanding people cough up thousands of pounds to complete legitimate transactions, is causing real distress.”

It’s like another Eigg – 25 years after islanders there took matters into their own hands and mounted a community buyout without legislative backing but with massive public support. Of course, the Scottish Parliament didn’t exist back in 1997.

But it does now.

And Land Reform legislation also exists – aplenty.

Yet the landowners seem to think that route has already failed.

Cyran and Patrick de la Lanne say: “Now that a forced sale of Bernera has failed we should find ways for a mutual benefit for the islanders as well as for the family improving Great Bernera.”

What’s the solution?

Some want the fiendishly complex 2003 Crofting Community Right to Buy simplified with a clear presumption in favour of a community bid. Andy Wightman suggests a time limit on sale negotiations, after which the community can request ministerial intervention. The Chair of the Scottish Land Commission Andrew Thin wants monopoly ownership tackled in a new Land Reform Bill expected in 2023.

But meantime Bernera folk want to end absentee landlordism on their island to develop affordable housing, retain youngsters, expand facilities and regenerate the island just as Eigg has done over a quarter of a century.

It’s a terrible shame there’s been so little progress in seven years.

But history tells us something.

Islanders persevere until they get results.