Crofting and Scottish Land Court Bill: child rights and wellbeing impact assessment

1. Brief Summary

1.1 Type of proposal:

Bill

1.2 Name the proposal and describe its overall aims and intended purpose:

Crofting and Scottish Land Court Bill

1.2.1 Crofting

Crofting is at the heart of communities across many parts of the Highlands and Islands, in Argyll, the Hebrides, Highlands and Northern Isles. Approximately 10% of the Highlands and Islands population (around 33,000 people) live in crofting households. Crofters across these areas cultivate land, tend livestock, diversify into alternative land-based businesses, protect the environment and biodiversity, and play a key part in their local community whilst maintaining the areas’ heritage and culture. However, the system needs to adapt to changing circumstances, to allow crofting to continue to thrive. The Bill aims to support the sustainability of crofting, of crofters and crofting communities, and provide legislation that will allow crofting to modernise, innovate and diversify.

The Bill will simplify legislation, streamline administrative processes, and make regulation less onerous for active crofters and the Crofting Commission. The Bill also aims to bolster and strengthen the role of Grazing Committees, giving them and individual shareholders more options for proposing environmental initiatives on common grazings.

The Bill will give additional powers to the Commission with which to resolve issues for individual crofters or crofting communities.

The Bill aims to strengthen crofting in seven key areas:

• Crofting communities
• Enforcement of crofters’ duties
• Crofting Commission powers
• Common Grazings
• The Crofting Register
• Electronic communications
• Simplifying and clarifying aspects of crofting law

Crofting Communities

Crofting has an important community dimension, and the legislation reflects this by balancing the rights of individual crofters with the rights of the communities of which they are part.

One of the proposals clarifies the definition of a crofting community as the crofters holding crofts and/or grazings rights in a particular township, with the townships being those recorded in the Register of Crofts. The Bill will also require the Crofting Commission to consider a wider area – the parish – when they are weighing up pressures on the sustainability of crofting. Another proposal will give subtenants and landlords, along with the crofters themselves, the right to report suspected breaches of duty to the Commission.

Enforcement of crofters’ duties

All crofters, tenant and owner-occupier, have a legal duty to reside within 32km of their croft and to ensure their croft land is cultivated or put to another purposeful use. Crofters’ adherence to these duties are vital for the strength of crofting communities, and for population retention and land use in rural and island areas. The existing legislation gives the Commission powers to enforce adherence to the duties, and the Bill aims to streamline and improve this legislation to give the Commission more power to act. The Commission will be entitled to require that questions about crofters’ adherence to their duties can be resolved before their other applications are considered.

Streamlining the duties enforcement process is expected to create opportunities for new entrants, including young people over the age of 16, benefitting the wider community by increasing crofting opportunities.

Crofting Commission Powers

The Commission is the regulatory body for crofting and is charged with promoting the interests of crofting. The Bill will make changes to give it stronger autonomy, in particular relating to decisions on applications to decroft land. The Bill will also give the Commission additional powers with which to resolve issues for individual crofters or crofting communities, including the power to adjust the boundaries of crofts with consent from all interested parties.

The Bill will give the Commission the power to award owner-occupier status when it is merited, which will apply to the successors in title to that croft, who may be children. As only owner-occupier crofters and tenant crofters are able to access crofting specific grants, this proposal could directly benefit the children of crofters, whose parent(s) will now be able to apply for grant support, helping them to invest in their croft business and towards the cost of building or improving their croft house.

The Commission receives around 300 assignation (transfer of croft tenancy) applications each year, around 99% of which are approved. It is very difficult for the Commission to refuse such applications, as to do so it would require evidence that the assignee (incoming crofter) has no intention of taking up residency or of cultivating, maintaining or putting the croft to another purposeful use. The Bill will introduce a streamlined and simplified assignation application 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.

This proposal will help facilitate entry to crofting, by simplifying and accelerating the process.

Common Grazings

Two thirds of all crofting land is on common grazings, the upland areas shared by most members of the local township(s) and by other shareholders. In common with upland areas not in crofting tenure, common grazing land is increasingly recognised as having great potential for peatland restoration, forestry, habitat restoration and renewable energy schemes, as well as traditional grazing of livestock.

There are proposals that aim to bolster and strengthen the role of Grazing Committees, giving them and individual shareholders, adults and children alike, more options for proposing environmental initiatives on common grazings. This will help facilitate greater land use, and provide stronger rights for all crofters. These proposals have been assessed as having a positive direct and indirect impact on all crofters and members of the crofting community, and may financially benefit those participating in such projects. Environmental projects could also benefit the wider community and help Scotland achieve its climate and environmental targets, therefore indirectly benefiting all children

The Crofting Register

A number of proposals in the Bill refine the processes for registration of crofts in the Crofting Register, including the interaction between the Crofting Commission and Registers of Scotland (RoS) in handling first registrations, and more flexibility for both RoS and the Commission to correct errors in the Crofting Register.

A number of these proposals will provide a simpler and more cost-effective approach to Crofting Register rectification for clear and straightforward inaccuracies. This will allow greater accuracy to be achieved and will minimise the number of Scottish Land Court challenges, thereby providing a more cost-effective approach to maintaining the Crofting Register for all involved, including crofters.

Electronic Communications

The Bill includes proposals to modernise and broaden the methods available to crofters and the Crofting Commission for serving notices, giving public notifications, and holding meetings. The Bill will make it clear that where the legislation requires a public meeting, such as for the election of a grazings committee, these meetings may also be held online or in hybrid fashion. It is expected that this will make it easier for members of crofting communities, adult and children alike, to attend meetings that affect them.

Simplifying and clarifying aspects of crofting law

The Bill also aims to make a range of simplifications and improvements to the way crofting is administered, and makes corrections and clarifications to the legislation as recommended at various times by the Scottish Land Court, or suggested by the Crofting Law Group. Including, updating references to a person’s “wife or husband”, making these instead a reference to “spouse or civil partner”.

1.2.2 Scottish Land Court

The amalgamation of the Scottish Land Court and the Lands Tribunal for Scotland, to form a newly expanded Scottish Land Court.

The Land Court primarily deals with questions arising between landlords and tenants of agricultural land, including crofts under the Crofters (Scotland) Act 1993, the Crofting Reform etc Act 2007 and the Crofting Reform (Scotland) Act 2010, smallholdings under the Crofters Holdings (Scotland) Act 1886 and tenanted farms under the Agricultural Holdings (Scotland) Acts 1991 and 2003. It also has a number of other jurisdictions. The Land Court is based in Edinburgh but holds hearings throughout Scotland.

The Lands Tribunal deals with a wide range of issues, including determination of disputed compensation for the compulsory acquisition or loss in value of land under the Land Compensation (Scotland) Act 1963 and under the Land Compensation (Scotland) Act 1973; references relating to the accuracy of the Land Register under the Land Registration (Scotland) Act 2012; appeals against the valuation of land acquired under parts 2 and 3A of the Land Reform (Scotland) Act 2003 (the Community Right to Buy).

Both bodies have a firm focus on land. Since 1978 the Chair of the Land Court has also been appointed as President of the Lands Tribunal. This is not a statutory requirement but by convention the two bodies share the same head. They also share premises and are both administered by the Scottish Courts and Tribunals Service, although each has its own administrative staff. The Land Court has a long tradition of serving the crofting and wider agricultural community and a historical role as the protector of tenants’ rights going back to the early days of crofting legislation. As such the proposal is to merge the Lands Tribunal into a newly expanded Scottish Land Court, retaining the tradition and history of the Land Court.

Provision is also made for suitably qualified members of the Scottish Land Court to act in the Upper Tribunal for Scotland if required after the merger, with transitory provision enabling suitably qualified Lands Tribunals members to act in the interim. The aim of these provisions is to build resilience in the Upper Tribunal and allow for the flexible deployment of judicial resource. This will ensure that the Upper Tribunal has an array of legal expertise at its disposal.

In summary, this simplifies and streamlines two different judicial processes to make the system easier to navigate.

Start date of proposal’s development: June 2022

Start date of CRWIA process: January 2024