Crofting and Scottish Land Court Bill: island communities impact assessment

2. Introduction

2.1 Crofting

Crofting is at the heart of communities across many parts of the Highlands and Islands, in Argyll, the Hebrides, the Highlands and 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 crofting 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, being tenant and owner-occupier crofters, landlords and common graziers. Approximately 10% of the Highlands and Islands population, around 33,000 people, live in a crofting household, meaning the proposals for crofting law reform will impact a minority of the Scottish population. There is no evidence to suggest that the changes proposed in this Bill will impact island crofters any differently from mainland crofters.

2.2 Scottish Land Court

The proposal to amalgamate the Scottish Land Court (the Land Court) and the Lands Tribunal for Scotland (Lands Tribunal) is essentially administrative in nature. 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, the two bodies share premises and are both administered by the Scottish Courts and Tribunals Service, albeit each currently has its own administrative staff.

The primary jurisdiction of the Land Court is to deal with questions 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 at locations suitable for the affected parties.

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 (community right to buy).

The Land Court has a long tradition of serving the crofting and wider agricultural community; the Land Court has a historical role as the protector of tenants’ rights going back to the early days of crofting and as such the proposal is to merge the Lands Tribunal into a newly expanded Scottish Land Court, thus retaining the tradition and history of the Land Court.

2.3 Upper Tribunal

The Upper Tribunal for Scotland generally deals with appeals on decisions made by the First-tier Tribunal. Cases in the Upper Tribunal are heard by judicial members (Court of Session judges, sheriffs) 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.

At present, the Chair of the Scottish Land Court can act in the Upper Tribunal by virtue of holding that office. The proposed merger of the Land Court and Lands Tribunal provides an opportunity to widen the membership of the Upper Tribunal, with the aim of building resilience and allowing for the flexible deployment of judicial resource in the Upper Tribunal. Provisions in the Bill provide for suitably qualified members of the merged Scottish Land Court (and in the interim period prior to merger, members of the Lands Tribunal) to act as judicial members in the Upper Tribunal.