Crofting and Scottish Land Court Bill: equality impact assessment

Background

Crofting

Background / Policy Affects

Crofting exists in certain areas of Scotland, namely the Highlands and Islands, and the jurisdiction of crofting legislation applies only to those areas. The proposals for crofting law reform affect only the crofting community, which accounts for approximately 10% of the Highlands and Islands population (around 33,000 people live in crofting households).

The existing legislation on crofting is mainly in the Crofters (Scotland) Act 1993 (as amended) and the Crofting Reform (Scotland) Act 2010. The 2010 Act made substantial amendments to the 1993 Act and also introduced a new body of legislation, mainly about the Crofting Register and the registration processes. Virtually all of the crofting provisions in the current Bill are to modify the 1993 Act or the 2010 Act, which will remain the two key Acts governing crofting and its regulation.

The crofting community comprises tenant and owner-occupier crofters, landlords, landowners, common graziers and common grazing committees. There are around 750,000 hectares of land under crofting tenure - approximately 200,000 hectares of which are in-bye crofts and 500,000 hectares are common grazings. There are 21,673 crofts - 15,242 tenanted, 6,431 owned and, according to the Crofting Commission’s 2023/24 Annual Report and Accounts, there are 14,890 crofters (tenant and owner-occupier crofters).

Policy Purpose Aims and Context

The Bill aims to strengthen crofting in seven The Bill aims to strengthen crofting in seven key respects:

• 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 a 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, while removing the grazings committee’s duty to do this wholesale.

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 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.

In addition, the Bill will prohibit future transfers of owner-occupied crofts to legal persons such as a limited company or incorporated charity. This will help ensure over time that every owner-occupier crofter is, like a tenant crofter, a natural person (human being) directly responsible for complying with the crofting duties.

Streamlining the duties enforcement process is expected to create opportunities for new entrants, which will benefit the wider community. It will also benefit those crofters who are no longer able to work their croft themselves, for whatever reason. Through its regulatory powers, the Commission will work with and support such crofters to transfer or sublet their croft, or otherwise resolve their breach of duty, thereby directly benefiting such crofters.

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 give the Commission additional powers with which to resolve issues for individual crofters or crofting communities, in particular the power to award owner-occupier status when it is merited, and to adjust the boundaries of crofts with consent from all interested parties.

The Bill will also introduce a streamlined and simplified assignation process (transfer of croft tenancy) for within-family assignations, removing the requirement (and associated cost) to advertise the proposed assignation, whilst retaining the landlord’s right to object. However, a proposed family assignation application will be subject to certain conditions. This proposal will help facilitate entry to crofting, by simplifying and accelerating the process.

Common Grazings

Two thirds of all croft land is common grazing land, 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. The Bill aims to bolster and strengthen the role of Grazing Committees giving them, and individual shareholders, more options for proposing environmental initiatives on common grazings. It also aims to protect the connection between the inbye (the croft) and grazing shares, by preventing the unintended separations of grazing rights, which have happened many times when crofts have been purchased, and by providing new flexibility for owners of common grazings, and the Commission, to reallocate vacant shares.

The Crofting Register

The Crofting Register, held and managed by Registers of Scotland (RoS), was introduced by the 2010 Act. The Crofting Register complements the information held in the Commission’s Register of Crofts, in particular by including in the Crofting Register a map of each registered croft.

A number of provisions in the Bill refine the processes for registration of crofts in the Crofting Register, including the interaction between the Commission and RoS in handling first registrations, and provide 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 provisions to modernise and broaden the methods available to crofters and the Crofting Commission for serving notices, giving public notifications, and holding meetings. It is expected that this will make it easier for members of crofting communities to attend meetings that affect them.

Simplifying and clarifying aspects of crofting law

The Bill makes a range of simplifications and improvements to the way crofting is administered, including providing more flexibility for the Scottish Ministers in the appointment of Crofting Commissioners. It also makes corrections and clarifications to the legislation as recommended at various times by the Scottish Land Court or suggested by the Crofting Law Group.

The Bill will confirm that owner-occupier crofters and owner-occupied crofts are required to be included in the Register of Crofts and provide the same information as tenant crofters. The Bill will also update references to a person’s “wife or husband”, making these instead a reference to “spouse or civil partner”.

Development

In 2022, Scottish Government officials set up the Crofting Bill Group, which comprises key crofting stakeholders, and through extensive engagement across 19 meetings, the Group developed proposals for crofting law reform. This work culminated in the publication of the ‘Crofting Consultation 2024 – Proposals for Crofting Law Reform’, which ran from June to September 2024.

In addition, 15 in-person events, attended by over 250 individuals, were held across the crofting counties to promote the consultation and allow crofters and aspiring crofters to have their say and learn more about the proposals being considered.

Since the publication of the analysis of the consultation in November 2024, officials have continued to engage with key stakeholders. The consultation responses and in-person engagements have helped inform the development of the crofting proposals in the Bill.

Scottish Land Court/Tribunals

The idea of amalgamating the Scottish Land Court and the Lands Tribuanl for Scotland is not new; discussions took place in the 1970s about absorbing the Land Court into the Lands Tribunal, given that both bodies have a firm focus on land. There was however little support at the time for abolishing the Land Court and this was not progressed. Since 1978, the Chair of the Land Court has also been appointed as President of the Lands Tribunal; whilst this is not a statutory requirement, by convention the two bodies have shared the same head for many years. They also currently share premises and are both administered by the Scottish Courts and Tribunals Service, albeit each has its own administrative staff.

The primary jurisdiction of the Land Court is to deal 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 has an extensive range of jurisdictions, 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).

The Land Court has a long tradition of serving the crofting and wider agricultural community. A public consultation was held in 2020 on ‘the Future of the Land Court and Lands Tribunal’. The main questions were whether the two bodies should be amalgamated and, if so, wehther the resultant body should be a court or a tribunal. The consultation produced an even split on the question of whether the Land Court and the Lands Tribunal should be amalgamated. The main reaosns for supporing the merger were that it would mean a more efficient administration of the services that the Land Court and the Lands Tribunal currently offer, and that the sharing of resources and staff would be advantageous. The opposing views argued that teh Land Court and the Lands Tribunal are quite distinct and that the resolution of the two bodies requires different approaches.

With regard to the question of whether a merged body should be a court or a tribunal, over 83% of those who ansered the question thought it should be a court. Having considered the responses to the consultation the Scottish Ministers decided that the Scottish Land Court and the Lands Tribunal for Scotland should be amalgamated to form an expanded Land Court, and that the requirement for a Gaelic speaking member of the Land Court should be retained.

Both the former and current Chair of the Land Court are in favour of the amalgamation, which will offer structural coherence and efficiency. Members of the Land Court and Lands Tribunal will be able to hear all cases which come before teh newly expanded Scottish Land Court, which will allow for a flexible deployment of personnel and resources to ensure the efficient administration of justice. The ability to utilise resources across the full breadth of the jurisdiction will offer a better service for litigants.

The proposed amalgamation is primarily administrative in nature; the Bill makes provision in respect of composition, procedure and jurisdiction, which will have little operational impact on court users other than an anticipated improvement in service. The proposal will impact all litigants and potential litigants equally and neutrally. No differing impacts on different groups of people, or those with protected characteristics, have been identified.

At present, the Chairman of the Scottish Land Court, judges of the Court of Session and sheriffs are eligible to act as judicial members of the Upper Tribunal. Members of the Lands Tribunal and other members of the Land Court are not eligible to act as judicial members by virtue of membership of either of those bodies.

The Upper Tribunal deals with appeals on decisions made by the First-tier Tribunal for Scotland. Appellants must seek permission to appeal from the First-tier Tribunal to the Upper Tribunal. Cases in the Upper Tribunal are heard by judicial members and other members who have certain specialisms (for example, legal or surveyor experienced members) and are known as legal or ordinary members of the Upper Tribunal. The Bill provides that members of the merged Land Court who have suitable legal experience become eligible to act as judicial members of the Upper Tribunal. Transitory provision is made for suitably qualified members of the Lands Tribunal to act in the period prior to the merger. The aim to ensure that sufficient numbers of judicial members are available to assist with managing fluctuations in volumes of appeal cases and improving resilience in the Upper Tribunal.

The President of the Scottish Tribunals is supportive of the intention to enable additional resource to be utilised in the Upper Tribunal. Appropriate requirements are provided for in the Bill in respect of the determination and authorisation/approval of suitably qualified members. These provisions broadly follow the existing process for authorisation of sheriffs to act in the Upper Tribunal. Engagement with the Scottish Courts and Tribunals Service, 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.

The proposals in respect of the Upper Tribunal are therefore limited to widening the membership of the Upper Tribunal. They do not affect the appeal rights of appellants or the functions or responsibilities of the Upper Tribunal. As such, the proposals are administrative in nature and no differing impacts on different groups of people are envisaged.