Crofting and Scottish Land Court Bill – Part 1

The Scottish Government published the Crofting and Scottish Land Court Bill on 2 June, following the 2024 Crofting Consultation which we reported on at the end of last year. In this first blog, we look at the crofting provisions of the Bill.

The Bill is long-awaited in crofting circles, following upon the Scottish Government's National Development Plan for Crofting published in March 2021 and with proposals having been made for reform of crofting law for over 10 years. There are various aspects to the proposals but the primary goal is to support crofting as a way of life and protect crofting communities while simplifying the law.

Simplifying crofting law

Some of the changes introduced by the Bill clearly aim to deliver simpler results than the current law which is based on the Crofters (Scotland) Act 1993 as amended by previous reforms passed in 2007, 2010 and 2013. But even if the Bill leads to some simpler outcomes, it's doubtful that the law itself is becoming any simpler. As amending legislation, rather than something new – the Bill is 55 pages of cross-referenced substitutions, insertions and deletions which are difficult to follow. Once updated to show the amendments from the Bill, the 1993 Act runs to 151 pages, and navigating this law doesn't appear to be getting any easier.

Progress

Leaving the formulation of the law aside, of the proposals outlined in the 2024 Consultation which are taken forward in the Bill, the following deliver simple, common-sense outcomes:

providing for electronic communication of certain essential notices and allowing meetings to be attended online;
streamlining the Commission's process for enforcement action when dealing with breaches of duty;
giving flexibility for correcting errors in the map-based Crofting Register;
reducing the requirement for the Commission conduct a census, to at least once every three years rather than annually;
giving the Commission power to terminate a sublet or short lease where the duties of a crofter are not being fulfilled, or another condition is not being met;
providing that a tenant crofter applying to register their croft in the map-based Crofting Register must give their landlord 14 days in which to make comments on their application (and must confirm to the Commission that this opportunity has been given); and
removing the current restriction which prevents landowners from applying to create new common grazings adjacent or contiguous to one or more crofts.

Some proposals provide straightforward clarity or consistency where this has been lacking:

defining 'crofting community' as those with crofts and/or grazing rights in a particular township (being the township recorded in the Register of Crofts);
confirming that the maximum period of a sublet or short-term lease is 10 years; and
clarifying (within the statutory conditions applying to a croft tenancy) that a landlord has no responsibility for the provision of fixed equipment.

Others are arguably more progressive and develop the law:

giving subtenants and landlords (along with crofters themselves) the right to report suspected breaches of duty within their township to the Commission, while entirely removing the duty (but not the right) of a grazings committee to report such breaches;
giving the Commission power to require that outstanding information is provided and the statutory duties are being adhered to before crofters' applications (e.g. assignation, decrofting, division etc) are considered; and
requiring the Commission to consider the decrofting history of a croft when taking a decision on a new decrofting application, giving the Commission greater flexibility to refuse some decrofting applications.

The most significant provisions are those which create new rules:

prohibiting future transfers of owner-occupied crofts to non-natural persons (e.g. companies or trusts);
giving the Commission power to award 'owner-occupier' crofter status (subject to certain – as yet unknown – conditions being met);
beyond the existing power to 'reorganise' crofts within a township, giving the Commission new powers to change croft boundaries, on an agreed application submitted by all whose boundaries would be changed, and all the landowners whose land would be affected. The powers fall into two types - “boundaries adjustment” where no land is taken into or removed from crofting tenure; and “boundary remapping” where some land becomes, or ceases to be, croft land.
providing that the duty to cultivate and maintain a croft includes putting it to 'environmental use' – defined as any planned and managed use which does not adversely affect the use of adjacent land and which may include (but is not limited to) (a) peatland restoration, (b) habitat creation and restoration, (c) water management (e.g. making or improving watercourses, ponds or wells), or (d) preserving protecting, restoring, enhancing or otherwise improving the natural heritage or environment.
changing the current position so that when a crofter purchases their croft, any grazings share will remain attached to the croft unless the conveyance actively specifies otherwise;
providing for management of vacant, unattached grazings shares by the Commission (e.g. if there is a failed succession to a deemed croft) - the Commission will invite the landowner to propose a new shareholder, and if the landowner does not make proposals that are acceptable, the Commission will allocate the share in consultation with the grazings committee, potentially to a croft which has no share;
fast-tracking certain assignations – providing for automatic Commission consent whenever (a) the proposed assignee is a member of the crofter’s family, (b) they fulfil the residency duty or will do so directly on the assignation taking effect, (c) they are not already holding an interest in 3 or more crofts, and (d) the landlord has been given a 28-day opportunity to object and has not done so;
following a let by the Commission, suspending for ten years the normal rights of a tenant crofter to assign the croft or to acquire title to it compulsorily from the landowner;
adapting the current provisions relating to use of common grazings which allow crofter-led and joint forestry ventures, to make parallel provision for environmental initiatives (and providing that if a landowner does not respond to a request for consent to a crofter-led project within 6 weeks, this will be taken as consent – although there will still be the opportunity to make representations to the Commission before it decides the crofter's application); and
adding use of common grazing for environmental purposes to the existing uses of grazing (and other traditional uses) and forestry which don't require Commission approval.

Proposals not advanced

Some of the proposals outlined in the 2024 Consultation which are not found in the Bill are:

providing that the duty to cultivate or otherwise use a croft does not require the crofter themselves to do the work if members of their family are doing it (it is understood this is already widely recognised and concerns were expressed that changing the legislation might encourage more crofters to pass the work to even more distant relatives or acquaintances);
fast-tracking (a) assignations to non-family members, and (b) sublet/short-term lease applications for less than 5 years' duration;
regulatory controls on sales over owner-occupied crofts where the proposed purchaser already has three or more crofts;
joint tenancies of crofts; and
providing a mechanism for standard securities to be granted over croft tenancies and modification of crofting rights and responsibilities in relation to secured crofts.

Call for views

The crofting provisions of the Bill itself - and further amended 1993 Act - may be unwieldy and actually more complicated, but there are a number of [positive changes and developments]. Of course, many will consider that further changes are needed and that there is still much to be done to simplify the law.

The Rural Affairs and Islands Committee is the lead committee within the Scottish Government scrutinising the Bill, and it has opened a call for views to help inform examination of the provisions. Views can be submitted here until Friday 5 September 2025.

In our second blog , we look at the provisions of the Bill relating to the Scottish Land Court. For further information or advice, please get in touch with one of our agricultural lawyers or your usual Brodies contact.