Crofting and Scottish Land Court Bill: island communities impact assessment

5. Background

5.1 Crofting

Following a manifesto commitment to modernise crofting law, and subsequent Programme for Government (PfG) commitments, a Crofting Bill Team was set up in 2016 to deliver crofting law reform. However, work was unavoidably suspended in October 2019, because of Brexit preparations. The work resumed in the spring of 2022, as Scotland was emerging from the Covid 19 pandemic, and this Bill is the product of that continued and expanded work.

Over the last two years, there have been PfG commitments to consult on crofting law reform and to analyse and publish the responses to the consultation, with the intention of bringing forward crofting law reform in this Parliamentary session. This year’s PfG commitment (2025/26), reaffirms this by committing to introduce crofting legislation this year.

5.2 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.

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.

5.3 Upper Tribunal

The Tribunals (Scotland) Act 2014 (the 2014 Act) created a new, simplified statutory framework for tribunals in Scotland, bringing existing tribunal jurisdictions together and providing a structure for new jurisdictions. The 2014 Act created two tribunals, the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland, known collectively as the Scottish Tribunals. The First-tier Tribunal is organised into a series of chambers which deal with different subject matter. The Upper Tribunal generally deals with appeals on decisions made by the First-tier Tribunal. Appellants must seek permission to appeal from the First-Tier to the Upper 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 Bill provides 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.

The proposed merger provides an opportunity to widen the membership of the Upper Tribunal and allow for flexible deployment of judicial resource if required. This aims to build resilience in the Upper Tribunal and assist in dealing with any fluctuations in case volumes.