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

Internal SG engagement / engagement with wider Public Sector

Internal SG engagement

Crofting

94. The following areas of the Scottish Government have been involved in the development of the proposals contained within the Bill:

• Agriculture and Rural Economy Directorate (ARE)
  • Rural Payments and Inspections Division (RPID)
  • Land Reform, Rural and Islands Policy Division (LRRIP)
• Scottish Government Legal Department (SGLD)

95. The Crofting Bill Team is part of the Agriculture Policy Division, which sits within the ARE Directorate. Engagement with officials working on other ARE policy areas relevant to some of the proposals has been undertaken as required, while Divisional and Directorate leadership have been updated and consulted regularly on progress. SGLD have also regularly liaised with Bill Team officials and fed into the policy development process including through their attendance at meetings of the Crofting Bill Group.

Scottish Land Court

96. The following areas of the Scottish Government have been consulted on the proposals contained within the Bill:

• Judicial Appointments
• Public Appointments
• Gaelic Policy
• Scottish Government Legal Department

UK/ Devolved Administrations

Crofting

97. Crofting law is unique to the Highlands and Islands of Scotland and is wholly within the legislative purview of the Scottish Parliament. Therefore, no engagement with the UK Government, or other devolved administrations was necessary.

Scottish Land Court

98. The Bill provides for Scottish Ministers to determine the remuneration of Land Court members; the current position is that SCTS has responsibility for determining the salary and expenses of members of the Land Court. This change is intended to reflect the change to the designation of members of the Scottish Land Court to judicial office holders as defined by the Judiciary and Courts (Scotland) Act 2008.

99. As judicial office holders the Scottish Government is of the view that members of the newly merged Scottish Land Court should be included in the Judicial Pension Scheme and receive a judicial pension. At present members of the Lands Tribunal receive a judicial pension however members of the Land Court do not. The Judicial Pension Scheme is run by the UK Government and the Scottish Government is engaging with the UK Government on this matter.

100. The remuneration of the members of the Lands Tribunal is reserved at present. The Scottish Government will liaise with the UK Government for a section 30 Scotland Act Order in this regard before the transfer of members can be effected.

101. Salaried judiciary do not receive any payment beyond their existing salary for acting in the Upper Tribunal by virtue of the office they hold. The proposal in respect of enabling suitably qualified members of the merged body (and Lands Tribunal members through the transitory provision) to act in the Upper Tribunal will follow these arrangements. SCTS have confirmed that there will be no direct or indirect running costs as a result of the Upper Tribunal provisions.

Wider Public Sector

Crofting

102. The wider public bodies below have been consulted with:

• Crofting Commission
• Highlands and Islands Enterprise (HIE)
• NatureScot
• Registers of Scotland (RoS)
• Shetland Islands Council

103. All of these organisations have been represented on the Crofting Bill Group. In addition, COSLA and SAC Consulting have had an open invitation to attend and have been sighted on all the discussion papers and minutes of meetings circulated around the Group.

104. When the Crofting Bill Group was reinstated in early 2022, Crofting Bill Team officials issued a list of proposals to all members and asked them to provide their views. This provided a starting point for the process and helped to map out future engagements. Since then, the Group has met on 19 occasions to discuss these proposals, which range from technical adjustments to significant improvements to the system. Prior to each meeting, discussion papers were issued to the Group to help form a basis for the discussion and to share the views of both officials and stakeholders.

105. As the regulatory body for crofting, the Crofting Commission has also engaged closely with Scottish Government officials in the development of the Bill, including providing technical assistance and its assessment of the resourcing and cost implications of proposals.

106. Further advice and information on resource implications has been provided by Registers of Scotland, in their capacity as administrator of the map-based Crofting Register.

Scottish Land Court

107. Given the administrative nature of the proposed transfer, limited further engagement with the wider public sector has been undertaken.

108. There is ongoing engagement with SCTS with regard to resource requirements resulting from the policy proposals, such as the development of a new case management system for the newly merged body.

International

Crofting

109. Crofting law is unique to the Highlands and Islands of Scotland and the Bill will have no effect on trade with other countries.

Scottish Land Court

110. The Scottish Land Court does not have jurisdiction outwith Scotland and the Bill will have no effect on trade with other countries. Similarly, the Upper Tribunal does not have jurisdiction outside of Scotland.

Business / Third Sector engagement

Crofting

111. Since development of the Bill commenced in 2022, there has been extensive engagement with representatives of the affected sectors, particularly through the Crofting Bill Group which included representatives from the:

• Scottish Crofting Federation
• NFUS
• Scottish Land and Estates
• Law Society of Scotland

112. The Group also included several solicitors specialising in crofting law as well as individual landowners and crofters.

113. A number of the proposals being taken forward in the Bill originated in a paper on Crofting Law Reform produced by the Law Society of Scotland in 2020.

114. Outwith the Crofting Bill Group there has been significant engagement with sectoral stakeholders at both official and Ministerial level, including one to one meetings and roundtable discussions.

115. As part of the consultation, there has also been direct engagement with crofters through the 15 in-person events held during summer 2024, at locations throughout the crofting counties chosen to be as accessible as possible to as many people as possible. In addition, further roundtable discussions with small groups of crofters were held during a Ministerial visit to Lewis, Harris and Skye in March 2025.

116. All key sectoral stakeholders made detailed submissions in response to the public consultation, which were supportive of the majority of the proposals. However, there were concerns expressed by some in relation to the proposals on dual tenancies, standard securities, and the original proposal to reduce the level of scrutiny applied by the Crofting Commission for assignation applications. As seen by the published responses, the SCF was particularly opposed to the last two of these proposals, which also attracted criticism at a number of the in-person consultation meetings with crofters.

117. Combined with feedback from other sources, including the Crofting Commission, a decision was made not to take forward the proposals on standard securities and dual tenancies in the present Bill. It has also been decided to adapt the assignation proposal and introduce a fast-track process for within-family assignations.

118. Feedback - Standard Securities: Before any decision was taken on the proposal to allow standard securities to be issued against croft tenancies, officials had held discussions with the Committee of Scottish Bankers, which included representatives of three of the four largest mortgage lenders in the country.

119. An owner-occupier crofter can grant a standard security for a loan over an owner-occupied croft, and it was hoped that by expanding this to croft tenancies, prospective new entrants to crofting would have more options in raising the necessary finance to purchase a croft tenancy. It would also have given existing tenants new options for funding investment in their crofts through secured loans. The analysis of the consultation reported that 46% of respondents were in favour of this proposal, 43% were not, and 11% didn't know.

120. The main concerns raised in relation to standard securities focused on the potential for loan financing to further fuel price rises for croft assignations. There were also doubts expressed as to whether lenders would want to offer these types of loans, and concerns raised about possible complications arising in relation to the scope that a lender would have, in the event of a default, to take possession and dispose of a tenancy.

121. Although a number of these concerns were alleviated in discussions with the banks, no guarantees could be provided, despite the fact that they could see a path to delivering such a product.

122. Given the relative uncertainty and mixed response from the consultation, it was decided to not take forward this proposal at this time. However, in the event that this proposal is reconsidered in the future, the work undertaken will be a very useful starting point.

123. Feedback - Dual Tenancies: The dual tenancies proposal was intended to support entry into crofting by enabling a croft tenancy to be held by two people, thereby making crofts more affordable on the basis that two individuals could pool their resources to buy a croft tenancy. Current crofting legislation provides that tenanted crofts can be in the name of one tenant only. However, owner-occupied crofts can be held by joint owners and many of them are - around 1,500 according to information held by the Crofting Commission. The analysis of the consultation reported that 62% were in favour of this proposal, 27% were against, and 11% didn't know.

124. A number of those responding to the consultation were unconvinced that this proposal would support entry into crofting and suggested that enabling two individuals to combine their financial resources could increase the market in crofts and croft tenancies. There were also concerns that dual tenancies could increase legal complexity and legal challenges, and become resource intensive for the Crofting Commission.

125. Feedback - Assignations: The original proposal, as stated in the consultation, was that approval by the Crofting Commission of assignations applications should only be required where the proposed incoming crofter already held three or more crofts and/or standalone grazings shares (deemed crofts), as recorded in the Register of Crofts; or where the landlord objected. It was originally put forward on the basis that requiring the Commission to assess a prospective assignee's likely compliance of crofter duties, before they have taken on a croft tenancy, is an ineffective use of resources. Providing an assignee declares their intention to meet their residency duties and work the croft, the Commission has little option other than to accept their word unless there is compelling evidence that they are not sincere. This is almost never available, which is why 99% of assignation applications are approved. The Commission suggested that it would be more effective to focus resources on increasing duties enforcement work, including potentially conducting checks on new assignees within two years of them taking on a croft.

126. The analysis of the consultation reported that 57% were in favour of this proposal, 31% were not, and 12% didn't know.

127. Among the key concerns with the proposal was that removing up-front checks on prospective assignees would increase the chances of croft tenancies being acquired by people who are not interested in becoming active crofters but are just looking for house sites. This point was made particularly strongly by the Scottish Crofting Federation (SCF), who believed the proposal was contrary to the intentions of the 2010 Act, to ensure better regulation of crofting. Given that it would have resulted in minimal regulation over entry to crofting, the SCF felt it was unclear how the interests of the crofting community would be considered if there was no longer a right for members of the community, or grazings committees, to object.

128. Following further engagement including roundtable discussions with the SCF, NFUS and the Crofting Commission, the original proposal was dropped. Instead, the Bill will introduce a streamlined and simplified assignation process for within-family assignations, removing the requirement (and associated cost) to advertise the proposed assignation and the right of the crofting community to raise an objection, whilst retaining the landlord's right to object. A proposed family assignation application would still need to be accompanied by confirmation of:

• the assignee's relationship to the applicant
• that the assignee is already or will become resident within 32 kms of the croft
• that notice of the assignation has been served on the landlord, which includes notification that the landlord can object within 28 days; and
• what, if any, interests the proposed assignee has in any other holdings in the Register of Crofts.

129. This revised reform of the assignation process will deliver a measure of improved efficiency and is viewed far more favourably by crofting membership organisations than the original proposal.

Scottish Land Court

130. The amalgamation is primarily administrative in nature and no specific business engagement has been undertaken or is planned. It is not anticipated that the merger and Upper Tribunal provisions will have any impact on the New Deal for Business.

Public consultation

Crofting

131. From 6 June to 2 September 2024, the Scottish Government ran a 12-week public consultation to seek views on proposals for crofting law reform. This included:

• A public consultation paper published on the Scottish Government website and supported by a CitizenSpace survey; and
• Targeted engagement during the consultation period, attended by those most likely to be affected, and groups representing their interests.

132. The consultation survey, delivered online via CitizenSpace, set out a series of questions covering the following key areas:

• strengthening residency and land use
• entry to crofting
• enhanced Crofting Commission powers
• crofting communities
• simplifying crofting
• clarifications and corrections; and
• use of common grazings.

133. In addition, 15 in-person events, attended by over 250 individuals, most of whom were crofters, were held across the crofting counties. Below is the full list of locations where the events were held:

• Inverness
• Thurso
• Ullapool
• Kinlochbervie
• Portree
• Lairg
• Lerwick
• Yell
• Spean Bridge
• Oban
• Tiree
• Stornoway
• Harris
• Benbecula
• Barra

134. A total of 163 responses to the consultation were received, 83% were from individuals and 17% were organisational responses. Of the responses, 156 were submitted online via CitizenSpace and 7 via email.

135. On 15 November 2025, the Scottish Government published an independent analysis of responses to the public consultation, including comments made at the public events, and also the Scottish Government's response to the analysis. Overall, respondents to the consultation generally welcomed the majority of the Scottish Government's proposals, with all the proposals receiving more "Yes" votes in favour, than "No" votes. However, some felt that the proposals did not go far enough, and there were differences in the level of support for different provisions.

136. The independent analysts provided a presentation of the consultation and their findings, including a Q&A, to the Crofting Bill Group (with Crofting Stakeholder Forum members invited), Cross-Party Group on Crofting, and the Crofting Commission Board.

Scottish Land Court

137. A public consultation on the future of the Land Court and the Lands Tribunal ran for 12 weeks from 27 July to 19 October 2020. The consultation was publicly available on Citizen Space. The key questions were whether the two bodies should be amalgamated; if so, whether the resultant body should be a court or a tribunal; and whether the statutory requirement for a Gaelic speaking member of the Land Court should be retained. A Scottish Government analysis of the responses was published in June 2021.

138. The consultation attracted 58 responses, from both individuals and organisations. 35 responses came from individuals, including a number of academics and the former Chair of the Land Court. 23 came from organisations including academic groups with interests in land use or environmental matters; judicial and legal representative groups; public bodies set up by the Scottish Government; non-departmental public bodies; farmer's representative bodies; land valuation organisations; a council; a government body, land use management representative body; outdoor pursuit body; and an environmental non-governmental organisation.

139. The question of whether the Land Court and Lands Tribunal should be amalgamated generated an even split in responses, with 17 in favour and 17 not in favour, 1 'other' and 23 respondents choosing not to answer the question. Those in favour of the merger cited a more efficient administration of services, and the ability to use personnel across jurisdictions. The Senators of the College of Justice noted their view that "Amalgamation would yield structural coherence... By bringing them together, the new body could develop a broader range of skills". Another respondent noted that a merger would lead to a more efficient use of resources, and that a "one stop shop for a large number of land law matters is preferable to the current arrangement...".

140. Those opposed argued that the Land Court and the Lands Tribunal are quite distinct and that the resolution of disputes in the two bodies requires different approaches, with one set of court rules not being appropriate. Concerns were also expressed that a merger may result in the compromising of the expertise which each body possesses.

141. In response to the question of whether an amalgamated body should be a court or a tribunal, the majority of those who answered the question (over 83%) thought that it should be a court. The main reasons given were that a court has a higher status and is more authoritative, with some respondents considering that a court may be more suitable for taking on extra functions in future. In support of a tribunal, some respondents noted that a tribunal was less formal and consequently more user-friendly.

142. A slight majority (52.2%) of those who responded to the question thought it was necessary to retain the requirement for a Gaelic-speaking member of the Land Court. The main reasons given concerned Gaelic's importance in the world of crofting where there is a close relationship between the language and the land. It was also argued that a change in statute would be contrary to the Scottish Government Gaelic Language Plan 2016-2021. It was acknowledged that the language requirement can make recruitment of legal members difficult as it substantially reduces the pool of suitable candidates. Court hearings are in public and the parties, staff and public must all be able to follow the proceedings; in the event that Gaelic were to be required, interpreters are available (and would in fact be needed to translate Gaelic into English for the benefit of anyone present who does not speak Gaelic).

143. Following analysis and consideration of the consultation responses, Scottish Ministers agreed to the amalgamation of the Land Court and the Lands Tribunal, with the newly amalgamated body to be a Court. The requirement for a Gaelic-speaking member of the Scottish Land Court is to be retained.

Other stakeholders

Crofting

144. No other types of stakeholder have been engaged with.

Scottish Land Court

145. There is ongoing engagement with the Scottish Courts and Tribunals Service, Judicial Office, the Chair of the Scottish Land Court and President of the Lands Tribunal for Scotland and the President of the Scottish Tribunals. Engagement is also planned with the Lord President. SCTS will be involved in operational delivery of the policy, including the creation of a new case management system and ongoing administration of caseloads following the amalgamation.