Crofting and Scottish Land Court Bill: island communities impact assessment

3. Summary of the aims and outcomes

3.1 Crofting

The Bill aims to support the sustainability of crofting, crofters and crofting communities, and provide legislation that will enable crofting to modernise, innovate and diversify.

The Crofting Bill Team compiled proposals for crofting law reform ranging from technical adjustments to significant improvements to the crofting system. The Bill will simplify legislation, streamline administrative processes, and make regulation less onerous for active crofters and the Crofting Commission. It also aims to bolster and strengthen the role of Grazings 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. 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

3.1.1 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.

3.1.2 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.

3.1.3 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.

3.1.4 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.

3.1.5 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.

3.1.6 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.

3.1.7 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.

3.2 Scottish Land Court

The policy objective of the Land Court provisions within the Bill is to merge the Land Court and the Lands Tribunal into one cohesive body, the Scottish Land Court.

The newly merged body will offer structural coherence, efficiency, and the delivery of a better service to litigants. The newly expanded Scottish Land Court will have the ability to deploy personnel flexibly so that each case is dealt with by people with the appropriate skills and expertise. Whilst this primarily administrative in nature, the Scottish Government recognises the historical importance of the Land Court to the agricultural and crofting communities, whether based on the islands or the mainland.

It is considered important that the flexibility of the Land Court and Lands Tribunal to hear a case in the most appropriate location should not be lost. It is therefore intended that the Scottish Land Court will continue to be based in Edinburgh, with meetings throughout Scotland in locations suitable for the affected parties.

3.3 Upper Tribunal

In respect of the Upper Tribunal provisions, the policy aim is 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. Suitability of members of the Scottish Land Court for judicial membership of the Upper Tribunal is determined in the first instance by the Chair of that Court, and the suitably qualified members may only act as a judicial member of the Upper Tribunal with the authorisation of the President of the Scottish Tribunals, the approval of the Lord President and the agreement of the person concerned. Equivalent provision is in place in respect of members of the Lands Tribunal who act as judicial members of the Upper Tribunal by virtue of the transitory provision.