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

UK, EU and International Regulatory Alignment and Obligations

Internal Market / Intra-UK Trade

Crofting

234. The crofting provisions contained in the Bill do not relate to trade in goods or services and so will not impact upon either Intra-UK trade, or the UK Internal Market.

Scottish Land Court

235. The proposals regarding the Scottish Land Court and Upper Tribunal do not relate to trade in goods or services and therefore will not impact upon the UK internal market or intra-UK trade.

International Trade Implications

Crofting

236. The crofting provisions contained in the Bill do not relate to trade in goods or services and so will not impact upon international trade.

Scottish Land Court

237. The proposals in relation to the Scottish Land Court and Upper Tribunal do not relate to trade in goods or services. There will therefore be no implications for international trade.

EU Alignment consideration

Crofting

238. The proposals should have no implications for continuing alignment with the European Union, as crofting is a longstanding form of land tenure, with an associated body of law, which is unique to the Highlands and Islands of Scotland.

Scottish Land Court

239. The proposals are not believed to have any implications for continuing alignment with the European Union.

Legal Aid

Crofting

240. The crofting provisions of the Bill include proposals to amend some of the procedures and rights of appeal to a court or tribunal, usually the Scottish Land Court, which already exist within crofting law and which may lead people to consult a solicitor. This includes a proposal to simplify the enforcement mechanism by which the Crofting Commission can take action against crofters it believes to be in breach of their duties, which would reduce the number of points at which an appeal to the Land Court can be made.

241. Some other measures are expected to lead to a slight reduction in the number of cases being brought to the Land Court. One of these measures will allow the Commission to grant, upon application, owner-occupier crofter status to people who have inadvertently though in good faith, fallen into the circumstances of being a landlord of a vacant croft rather than an owner-occupier crofter. In some circumstances, the individual may be unaware of the situation. These are individuals who own and physically occupy a croft but, perhaps because of events in the distant history of the croft, do not meet the required conditions for an owner-occupier crofter. The Commission estimates that such circumstances apply in respect of possibly around 700 crofts. Currently, resolving this situation typically involves a lengthy and costly legal process. This provision will make the process much simpler and allow those successful applicants to be eligible to apply for funding from Scottish Government schemes such as the Croft House Grant and Crofting Agricultural Grant Scheme.

242. The Bill will extend the powers of the Keeper of the Registers of Scotland to rectify the Crofting Register when she becomes aware of an inaccuracy without first being requested to do so by either a third party or the Crofting Commission, and to correct typographical errors in the Crofting Register outwith the formal rectification provisions of the Act. This provision will provide a simpler and more cost-effective approach to Crofting Register rectification for clear and straightforward inaccuracies, allowing greater accuracy to be achieved and minimising the number of Scottish Land Court challenges. It will provide a more cost-effective approach to maintaining the Crofting Register for all involved, including crofters. Reducing the number of cases taken to the Land Court may also result in some savings for the legal aid fund.

243. The Bill will provide that an appeal against a decision by the Commission to put a grazing committee out of office, or to appoint a grazings committee or grazings constable, can be heard in the Land Court rather than the Court of Session, like appeals against other Commission decisions Taking cases to the Land Court is typically less costly than taking them to the Court of Session, so this change may result in a slight saving in legal aid costs, although such cases are not common.

244. Currently, the Scottish Legal Aid Board can administer legal aid to crofters depending on the individual circumstances of the crofter, so changes affecting rights of appeal may have a slight impact on the legal aid fund. However, our assessment is that any such impact will be small, and that it is also more likely to result in a reduction of demand for legal aid than an increase, due to fewer cases being brought to the Land Court.

Scottish Land Court

245. Both the Land Court and the Lands Tribunal have a system of fees for users. Once the amalgamation has been effected a new fee structure will be required. As is the case with civil court fees more generally, a full public consultation will be undertaken in that regard, including the full impact assessment process.

246. The Scottish Government is committed to ensuring that access to justice is protected through a well-funded system of exemptions from the requirement to pay court fees, and the provision of legal aid. The proposed amalgamation will have no impact on that provision.

247. The number of cases will be similar to the total number of cases in the Lands Tribunal and Land Court at present. It is therefore anticipated that there will be no additional expenditure from the legal aid fund.

248. The provision of legal aid for proceedings in the Upper Tribunal will not be affected by the provisions in the Bill.

Digital impact

Crofting

249. No negative impact of a digital nature is foreseen as a result of the Bill, and a number of proposals will lead to greater freedom to make use of digital mechanisms to comply with regulations.

250. At present there are some regulations which require crofters and the Crofting Commission to issue and advertise notices or publicise meetings using traditional print media platforms. This comes at a cost for the Commission and crofters because they have to advertise applications in newspapers and issue notices by registered post. Meetings of common grazing committees, which govern and manage the common grazings, may also have to be held in person. The Bill includes measures to provide greater flexibility, ensuring that digital platforms can be used for advertising and notification purposes in future, and allowing for meetings to be held online, or in a hybrid format. This will bring crofting into line with other public functions where modern electronic communication methods are routinely used.

251. In addition, a further proposal will allow all aspects of the process by which crofters complete and submit their Crofting Census return to the Commission to be undertaken online. These measures will bring in flexibilities in accordance with provisions in the Electronic Communications Act 2000 and related legislation.

252. However, there will be no compulsion to use digital means and traditional means of dealing with the Commission will continue to be available.

Scottish Land Court

253. No negative impacts of a digital nature are expected. The Scottish Land Court and Upper Tribunal already have the ability to hold hearings virtually if appropriate, and this will be retained.

254. A new case management system will be developed, with consideration given to enhancing digital accessibility whilst ensuring ongoing access to justice for all parties.

Business forms

Crofting

255. Some new business forms may be required as a result of the measures in the Bill, while a number of existing forms are likely to need to be amended. Where significant changes are to be made the Crofting Commission will undertake user testing as required in line with its established procedures.

Scottish Land Court

256. No new business forms are expected to be introduced as a result of the measures in the Bill. Some existing application forms may be amended as the new case management system is developed by SCTS, who will test the forms to ensure that they are fit for purpose.