Crofting and Scottish Land Court Bill: Fairer Scotland Duty assessment

Fairer Scotland Duty Assessment

Title of policy, strategy or programme

Crofting and Scottish Land Court Bill

Summary of aims and expected outcomes of strategy, proposal, programme or policy

Crofting

Crofting is at the heart of communities across many parts of the Highlands and Islands, in Argyll, the Hebrides, the Highlands and the Northern Isles. Crofters across these areas are cultivating land, tending livestock, diversifying into alternative land-based businesses, protecting the environment and biodiversity, playing a full part in their local communities, and maintaining the areas’ heritage and culture. However, the system needs to adapt to changing circumstances, to allow crofting to continue to thrive.

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 proposals for crofting law reform will 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 Bill aims to support the sustainability of crofting, crofters and crofting communities, and provide legislation that will allow crofting to modernise, innovate and diversify.

In early 2022, the Crofting Bill Team compiled proposals for crofting law ranging from technical adjustments to significant improvements to the crofting system. The Bill, which was developed through extensive engagement with a wide range of stakeholders in the Crofting Bill Group, 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 Crofting Commission with which to resolve issues for individual crofters or crofting communities.

Scottish Land Court

The Scottish Land Court’s jurisdiction is set firmly within the context of Scottish farming and crofting. It has authority to resolve a range of disputes, including disputes between landlords and tenants, in agriculture and crofting. The Lands Tribunal for Scotland has statutory power to deal with various types of dispute involving land or property. The Sottish Land Court provisions within the Bill are intended to streamline the administration of the services that the Land Court and the Lands Tribunal currently offer. 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 main gain in terms of efficiency would be expected to come from the ability to deploy personnel flexibly so that every case is dealt with by people with the appropriate skills and expertise. Ultimately both bodies exist in order to serve the public, unification of the two bodies 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.

Summary of evidence

Crofting

Rural areas, including crofting areas, vary across categories of SIMD (Scottish Index of Multiple Deprivation). The Rural Scotland Data Dashboard presents data on a range of issues that impact rural Scotland, however, data that is specific to the crofting sector is not available. The majority of people who croft have primary employment outside of crofting. The Scottish Government is required to report to the Scottish Parliament on the Economic Condition of Crofting every four years. The last report was laid in Parliament in December 2022. According to that report, the median combined revenue from both crofting and non-crofting activities, minus business running costs, was £29,810, higher than the 2018 figure. The median Scottish household income at that time was £27,716.

During the development of the proposals, the Crofting Bill Team held 19 meetings with the Crofting Bill Group. During these lengthy discussions, the impact of each proposal was discussed in full, specifically the impact on crofters and their families, and the regulatory body – the Crofting Commission – and its staff. The Crofting Bill Group comprises:

• Crofting Commission
• Highlands & Islands Enterprise
• Scottish Crofting Federation
• National Farmers Union Scotland
• NatureScot
• Law Society of Scotland
• Scottish Land Court
• Scottish Land & Estates
• Registers of Scotland
• Highlands and Islands Agricultural Support Group – Shetland Islands Council
• Crofting Solicitors

There was also an open invitation to the Convention of Scottish Local Authorities and Crofting Commission Commissioners to attend Bill Group meetings. Of those attending as a representative of an organisation/body, there were a number who were crofters.

Outwith the Bill Group meetings, additional meetings have also taken place with key stakeholders, including attending and presenting at the Cross-Party Group on Crofting.

The ‘Crofting Consultation 2024: Proposals for Crofting Law Reform’ was held between 6 June – 2 September 2024 and received 163 responses - 136 (83%) were from individuals and 27 (17%) were organisational responses. During the consultation period, the Crofting Bill and Policy Team hosted 15 in-person crofter events throughout the crofting counties to enable crofters, and others with an interest, to engage with the Bill Team and have their say, and learn more about the proposals being considered and to discuss the impact they may have on the crofting community. These meetings were attended by 257 individuals.

During the discussions with stakeholders and crofters, no evidence arose to suggest that any socio-economic disadvantage nor inequalities of outcome could arise as a result of any of the proposals being taken forward.

The proposals are designed to simplify and clarify existing legislation, introduce immediate positive outcomes for crofters, and enable the Commission to better regulate crofting. A number of proposals will grant stronger rights for crofters to use their common grazing for environmental purposes and other innovations. In making these changes, it will be easier for crofters to apply for future schemes that support sustainable and regenerative agriculture, including rural development and other related matters, which could contribute positively to a crofter’s income, and improve the socio-economic advantage of those crofters.

There are also proposals which will reduce some costs in respect of public notification and others which could reduce legal costs for crofters. These proposals will have a positive impact on all crofters and other members of the crofting community and may improve the economic advantage.

The proposals are not designed to reduce inequalities or impact on those on low income, in deprived areas, social class etc. The proposals are designed to strengthen and support the crofting sector and ensure that croft land, including common grazings, is actively managed.

The majority of the proposals are strongly supported, as evidenced by the consultation responses and stakeholder event discussions.

Scottish Land Court

The evidence stage of the assessment process has identified no impact on individuals facing socio-economic disadvantage and inequalities of outcome in relation to the Scottish Land Court provisions of the Bill.

The provisions will affect all current users of the Scottish Land Court and Lands Tribunal for Scotland which includes those that experience socio-economic disadvantages.

The new body will be based in Edinburgh and the costs associated with using the court are likely to have a greater impact on groups that experience socio-economic disadvantages. These include the cost of travel, fees and legal costs. These are all likely to have a greater impact on groups that experience socio-economic disadvantages.

With respect to travel, both the Scottish Land Court and Lands Tribunal have the ability to hold hearings throughout Scotland and the ability to hold hearings virtually.

This will not be changed by these provisions. The amalgamated body will take all circumstances into account when deciding on the most appropriate venue as is currently the case. Similarly, the travel and hearing arrangements in respect of appeals to the Upper Tribunal will remain the same.

Both bodies currently have a system of fees for court and tribunal users. Once the new body is set up, a new fee structure will be required. As is the case with civil fees more generally, a full public consultation will be undertaken. This will include the full impact assessment process. The Upper Tribunal has a schedule of fees in respect of certain appeals, these will remain in place.

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.

Legal aid is currently available for cases in the Scottish Land Court, the Lands Tribunal and the Upper Tribunal. This position will remain unchanged in the new body.

Summary of assessment findings

Crofting

During the development of the Bill, each proposal in relation to crofting was discussed at great length by the Bill Team and the Crofting Bill Group, including the impact of the proposals on crofters and their families, the crofting sector, and crofting organisations. No inequalities of outcome or socio-economic disadvantage were identified during that engagement or during the 15 in-person events or subsequent engagement with membership organisations.

For the individual crofter, or other person who engages with crofting regulation, the Bill will have a beneficial financial effect, both by simplifying existing administrative processes and by opening up new opportunities for commercial activities – such as undertaking environmental initiatives on common grazings. The changes to public notification and advertising, and their associated costs, will also be of financial benefit to crofters, the crofting community and the Crofting Commission.

Preventing the accidental separation of grazing shares from the inbye croft will benefit crofters who may have faced significant legal costs to remedy such situations. Giving the Crofting Commission the power to adjust croft boundaries will also result in fewer legal costs for crofters and the crofting community.

The purpose of the crofting provisions of the Bill is to help the crofting sector and to make legislative changes for which there is consistent support across the crofting counties. As described above, many of the proposals will have a positive impact on crofters and the crofting community in terms of socio-economic advantage and equalities of outcome, whilst the others are expected to have a neutral impact.

Scottish Land Court

The merger of the two bodies and the provision in respect of the Upper Tribunal, whilst administrative in nature will offer structural coherence, efficiency, and the delivery of a better service to litigants. No inequalities of outcome or socio-economic disadvantage have been identified.

Which changes, if any, are being implemented?

As a result of this assessment there will be no changes made to the proposals for the Crofting and Scottish Land Court Bill.

If no changes are being made, please explain why.

No inequalities of outcome have been identified. The proposals contained in the Crofting and Scottish Land Court Bill will have a neutral or in some cases a small positive, direct or indirect, impact on existing inequalities or socio-economic disadvantage. Overall, the Bill will not reduce inequalities nor have a socio-economic impact.

The Scottish Land Court merger is administrative in nature and the existing processes and access to Legal Aid will not be changed by these provisions

Sign off

Name: John Kerr

Job title: Head of Agriculture Policy Division

Date: 14 May 2025