Crofting and Scottish Land Court Bill: business and regulatory impact assessment

Executive summary

Issue and why it needs to be addressed

Crofting

4. The Scottish Government is firmly committed to securing the future of crofting and the role it plays in sustaining rural and island communities. The principal legislation for crofting is the Crofters (Scotland) Act 1993, as amended. The last time the Scottish Parliament made significant reforms to crofting law was in 2010, through the Crofting Reform (Scotland) Act 2010. That legislation established the Crofting Commission as the successor to the Crofters Commission; introduced the map-based Crofting Register; defined the status of an Owner-Occupier Crofter; and introduced substantial new procedures for the Commission's enforcement of crofters' residency and land use duties.

5. The reforms introduced by the 2010 Act have led to profound changes in crofting. However, there are continuing challenges and opportunities. Although the majority of crofters meet their residency duty and work their land productively, there are too many crofts and common grazings that are underutilised. We now need to realise the full potential for croft land to help address the climate change and biodiversity challenges and to support thriving rural communities.

6. Crofting law is often described as very complex and difficult to navigate, and that processes, such as duties enforcement, are unnecessarily lengthy for all those involved. This Bill allows us to make a range of simplifications and improvements to the way crofting is administered, which will benefit crofters and the Crofting Commission.

Scottish Land Court

7. The purpose of the Land Court provisions within the Bill is to merge the Scottish Land Court and the Lands Tribunal for Scotland into one cohesive body, an expanded Scottish Land Court, and to streamline the administration of the services that the Land Court and the Lands Tribunal currently offer. Both bodies exist in order to serve the public; unification will ensure the public will be better served by the creation of a single body to deal with the range of issues currently dealt with either by the Land Court or the Lands Tribunal. There is also provision to enable suitably qualified members of the merged Scottish Land Court to act in the Upper Tribunal for Scotland, with a transitory provision enabling members of the Lands Tribunal to act in the Upper Tribunal in the time period before the merger. The Upper Tribunal membership provisions aim to maximise available judicial resource.

8. The Land Court and the Lands Tribunal both currently deal with a wide range of issues relating to land. Following a public consultation in 2020 Scottish Ministers agreed to an amalgamation of the two bodies into a newly expanded Scottish Land Court. The amalgamation, which is primarily administrative in nature, will combine the two jurisdictions and allow members of each body to hear the full range of cases before the newly expanded Scottish Land Court, thus allowing the personnel and skills which each of these bodies possesses to be available across the entire spectrum of their jurisdictions.

9. The jurisdiction of the new Scottish Land Court will be broader than the previous Land Court. Certain matters currently heard in the Sheriff Court, such as the "right to buy" provisions of the Land Reform (Scotland) Act 2003 and the Land Reform (Scotland) Act 2016 and the right of responsible access (also known as "right to roam") cases under section 28 of the Land Reform (Scotland) Act 2003 will transfer to the new Scottish Land Court.

10. In addition, there are a few minor jurisdictions presently exercised by the Sheriff Court which shall also transfer over such as the March Dykes Act 1661, the March Dykes Act 1669, the Runrig Lands Act 1695 and the Division of Commonties Act 1695.

11. Expanding the jurisdiction of the merged Land Court to include these areas will allow experience to be built up within the Land Court and improve consistency of decision-making.

12. The Upper Tribunal generally deals with appeals on decisions made by the First-tier Tribunal for Scotland. The First-tier Tribunal is organised into a series of chambers and hears cases on a wide range of issues. The provision to enable suitably qualified members of the merged Court to act in the Upper Tribunal aims to build resilience in the Upper Tribunal, ensuring that it has an array of legal expertise at its disposal and to allow for the flexible deployment of resource, if required.

Intended outcomes

Crofting

13. The purpose of the crofting proposals is to simplify existing crofting legislation; streamline administrative processes; facilitate active crofting on the inbye and common grazings; make crofting regulation less onerous for active crofters; and to make legislative changes for which there is consistent support across crofting communities. The Bill will introduce some immediate positive outcomes for crofters and their communities, and allow the Crofting Commission to better regulate crofting.

Scottish Land Court

14. The intended outcome is a primarily administrative merger of the two bodies to create a "one stop shop" for litigants. Skills and expertise from both bodies will be available across the full jurisdiction of the newly merged Scottish Land Court, which it is anticipated will support better decision-making. This should provide a better service for users, structural coherence and it is hoped, over time, provide some administrative efficiencies for SCTS. In respect of the Upper Tribunal provisions, the intended outcome is to increase resilience in the Upper Tribunal, and provide flexibility in deployment of judicial resource if required.

Options

Crofting

15. In 2022, a decision was made to take forward a dedicated Crofting Bill in this parliamentary term. Other options were available at that time, such as using the Agriculture Bill or Land Reform Bill to deliver crofting reform. However, it was felt that it would be unlikely that we could build a consensus on those issues needing to be addressed within the timeframes of the other Bills, and that it warranted a separate Bill.

Scottish Land Court

16. The options are to merge the Land Court and the Lands Tribunal, or to retain the status quo and not take forward the merger of the two bodies. Retaining the status quo would mean that litigants would not benefit from the structural coherence, efficiency, and greater flexibility in the deployment of personnel that the newly merged Scottish Land Court will provide. The options in respect of the Upper Tribunal are to maintain the existing arrangements around membership or use the merger as an opportunity to widen membership of the Upper Tribunal.

Sectors affected

Crofting

17. The key businesses whose interests are potentially affected by the crofting measures in the Bill are active crofters (croft businesses), landowners, land consultants and solicitors. Crofters and landowners will be the most directly affected because they are regulated parties in relation to crofting law.

18. In addition to these business types, some provisions will also have a slight impact on traditional print media, as the Bill will allow the use of alternative digital media to advertise regulatory applications and notifications.

Scottish Land Court

19. The Land Court and Lands Tribunal cover wide and varied jurisdictions; any member of the public or organisation with a relevant interest could raise proceedings and could therefore potentially be affected by the amalgamation. However given the primarily administrative nature of the merger it is anticipated that the impact on litigants or potential litigants will be minimal. The Bill provides for the transfer of jurisdiction on the appointed day or days. Prior to their transfer, members of the Lands Tribunal will be allowed to hear cases in the Land Court, ensuring that no experience is lost and that the full range of expertise is available in all cases. Transitional provisions will ensure that any proceedings in process at the time the amalgamation is effected will be transferred to the newly expanded Scottish Land Court. Similarly, the Upper Tribunal deals with a wide range of jurisdictions, generally hearing appeals from the First-tier Tribunal. The provisions regarding the Upper Tribunal relate to membership of that body and the deployment of judicial resource. There will be no impact on the rights of individuals and businesses to appeal to the Upper Tribunal.

20. It is intended to retain the current position of the Land Court being based in Edinburgh but holding hearings around Scotland in a venue appropriate for the affected parties. There should therefore be no impact on travel time (or cost) for affected parties as a result of the merger.

21. The Scottish Courts and Tribunals Service (SCTS) is currently responsible for the administration of both the Land Court and the Lands Tribunal, as well as the Upper Tribunal. SCTS will retain responsibility for the administration of the newly amalgamated Scottish Land Court and continue to administer the Upper Tribunal as at present. No impact on SCTS staff is anticipated.

Engagement completed, ongoing and planned

Crofting

22. Extensive and detailed engagement has been ongoing with crofting stakeholders and other interested parties since 2022, particularly through the 19 meetings of the Crofting Bill Group, which provided the main forum for discussion that led to the Crofting Consultation 2024, and the proposals being taken forward in the Bill. Officials will continue to engage with stakeholders, bilaterally and through established stakeholder groups, during the passage of the Bill and beyond.

Scottish Land Court

23. A public consultation was published in July 2020. The Scottish Government consulted on various issues relating to the Land Court and the Lands Tribunal, and specifically posed the question of whether the two bodies should be amalgamated and, if so, whether the resultant body should be a court or a tribunal. The consultation produced an even split on the question of amalgamation, however over 83% of those who answered the question thought that a merged body should be a court. A report on the analysis of the responses was published in June 2021. The Scottish Ministers considered the responses to the consultation and agreed that the Scottish Land Court and the Lands Tribunal for Scotland should be amalgamated to form an expanded Scottish Land Court. The statutory requirement for a Gaelic speaking member of the Land Court is to be retained.

24. Engagement with the President of the Scottish Tribunals indicated that the judiciary would find it helpful if the provision in respect of the Upper Tribunal for Scotland is implemented as soon as possible. This is facilitated by the transitory provision in respect of suitably qualified members of the Lands Tribunal for Scotland.

25. Engagement with the Scottish Courts and Tribunals Service, Judicial Office, the Chair of the Land Court (who is also President of the Lands Tribunal) and the President of the Scottish Tribunals is ongoing and further engagement with Lord President in his role as head of the judiciary and the head of the SCTS board will be undertaken prior to the merger.

Anticipated impacts (intended and unintended, positive and negative) and mitigating actions

Crofting

26. The overall impact of the proposals is anticipated to be positive for crofters and for the sector's regulatory body, the Crofting Commission. Regulatory processes will be streamlined and made more effective, both for the regulator and the relevant parties. In addition, some of the proposals are expected to open up new opportunities for commercial activities.

Scottish Land Court

27. The amalgamation is primarily administrative in nature. The intended impact is to allow for the flexible deployment of members and expertise to determine cases before the court and to offer structural coherence, efficiency, and the delivery of a better service to litigants in meeting the challenges of future developments. The same can be said for the Upper Tribunal membership provisions, which relate to maximising available judicial resources.

28. The Scottish Government is cognisant of the differences in remuneration (including current pension arrangements) between the members of the Lands Tribunal and Land Court and the difficulties this may present upon the merger of the two bodies, and is committed to ensuring that any future transfer of members into the Land Court will be on a no detriment basis. The Bill supports this position by providing for a phased approach to the transfer of Lands Tribunal members, with Lands Tribunal members authorised to sit in the Land Court until such time as a suitable Scotland Act Order can transfer them.

29. With respect to the transfer of jurisdiction from the Sheriff Court, it is difficult to estimate how many cases per annum will be moved into the Land Court. The case management system is not designed for statistical purposes and does not break case types down in this way. The Runrig and Division of Commonties Acts are virtually, if not entirely, moribund and SCTS has advised that the number of cases relating to the March Dykes Act, "right to buy" and "right to roam" is marginally higher, but still only amount to a few cases per year. It is therefore not expected that the additional jurisdiction will result in any significant impact on the volume of cases in the Land Court.

Enforcement/ compliance

Crofting

30. The new proposals will primarily be overseen by the existing regulatory bodies, the Crofting Commission, and, for proposals relating to the map-based Crofting Register, the Keeper of the Registers of Scotland. Further oversight will be provided by Scottish Government officials acting in a sponsorship capacity.

Scottish Land Court

31. The Bill provides for the administrative merger of two judicial bodies and no issues of enforcement or compliance have been identified. No issues of enforcement or compliance have been identified in respect of the Upper Tribunal provisions.

Recommendations/ implementation plans

Crofting

32. This Final BRIA lays out the rationale in support of the proposals for crofting law reform presented in the Crofting and Scottish Land Court Bill. This legislation will be brought forward in Parliament and subject to gaining parliamentary approval and Royal Assent its provisions will be commenced and implemented. The earliest possible date for commencement is July 2026.

Scottish Land Court

33. Scottish Government will engage with the UK Government, the Lord President, the Chair of the Land Court, SCTS and the Scottish Civil Justice Council on the implementation of the amalgamation.

Evaluation and monitoring of implementation/ review of BRIA

Crofting

34. Given that implementation of most of the crofting measures in the Bill will be overseen by the Crofting Commission, monitoring of their effectiveness will, in the first instance, be undertaken by Scottish Government officials working in a sponsorship capacity with the Commission. The broad criteria for judging the success of the measures will derive from the purposes and goals set out in this and other impact assessments, along with the supporting documents published alongside the Bill. More detailed targets and performance indicators will be agreed closer to the time of implementation.

35. In addition, officials will continue to undertake regular engagement with crofting stakeholders, including membership organisations, and will gather feedback on how the new provisions are being received and implemented.

36. The Scottish Government believes that there is need for further conversations on crofting law and how it can complement future agricultural and environmental strategies. An assessment of how the measures in the present Bill are performing post-implementation will form part of that review.

Scottish Land Court

37. Scottish Government will continue to engage with SCTS in monitoring the implementation of the amalgamation of the Scottish Land Court and Lands Tribunal for Scotland, along with monitoring the membership and deployment of suitably qualified members in the Upper Tribunal.