Crofting Consultation 2024 – reaction on the road to reform

The Scottish Government's Crofting Consultation 2024 – Proposals for Crofting Law Reform closed on 2 September 2024 and analysis of the 163 responses received has now been published. 136 of the responses were from individuals, with 27 submitted by organisations representing crofters, landlords, legal and third sector organisations, and local government, among others. Feedback was also received in-person, during consultation events attended by 257 people at 15 different locations throughout July and August.

Approximately 750,000 hectares (around 9%) of Scottish land is croft land with over 20,000 crofts and roughly 33,000 people live in crofting households. In comparison, approximately 5,500,000 hectares (75%) of Scotland is used for agriculture. Although relevant to an area 83 times larger, the 2022 Agriculture Bill consultation received only 2.4 times more responses (a total of 392). The Crofting Consultation has therefore attracted an encouraging and relatively high level of engagement.

The recently published consultation analysis reports that overall, answers to the questions posed by the Consultation demonstrate broad support for nearly all of the proposals, which collectively aim to simplify the law in this area while supporting crofting as a way of life and protecting crofting communities. Where objections or concerns were noted by respondents, many of these highlighted potential challenges, complexities and unintended consequences if the proposals are introduced.

Top ten proposals for crofting law reform

Of the 49 question asked, the ten most popular proposals are:

93% agree that the Keeper of Registers of Scotland should be able to correct errors in the Crofting Register when aware of an inaccuracy, and to correct typographical errors in the Register without formal rectification provisions being instigated.
91% agree that shareholders in Common Grazings should be responsible for informing their grazings committee of their preferred email or postal contact address.
89% agree that if a subtenant is not meeting their statutory duties, the Crofting Commission should be entitled to terminate the sublet.
89% agree that the Crofting Commission should be given the power to correct errors in its Directions and Orders where the case for doing so is clear.
89% support the proposal for the Crofting Commission to consider whether a crofter is complying with their statutory duties when deciding a decrofting application.
89% agree that the purchase of title to 89% agree that the purchase of title to a croft by a tenant crofter should be a trigger for registration in the Crofting Register.
87% agree that the Crofting Commission should have the power to adjust croft boundaries, on an application by all affected parties, where those parties agree.
86% support the proposal that each crofter should be required to confirm, at the next Crofting Census or within two years of taking up a croft, whether they are complying with the statutory duties of a crofter.
85% support extending and adapting the existing provisions which allow crofter-led and joint-venture forestry schemes on common grazing land, to provide similarly for peatland restoration schemes, biodiversity schemes, and other schemes relating to carbon sequestration, habitat restoration or environmental improvements.
85% agree that owner-occupier crofters should be required to give the same personal information for the Crofting Commission's Register of Crofts as tenant crofters.

Dissent and division

The three least popular proposals are:

A tenant crofter should be able to use their croft tenancy as security for a loan (43% disagree, although 46% do agree, with 11% unsure or not answering).
The extension of the right to report a suspected breach of duty to include non-crofters who reside within the local community where the croft is situated (39% disagree, although 52% do agree, with 9% unsure or not answering).
If a croft tenancy were to be repossessed by a lender, the lender should be able to assign (sell) the tenancy on to a new tenant provided that either the landlord or the Crofting Commission agrees (38% disagree, although 50% do agree, with 12% unsure or not answering).

None of the proposals attracted more negative than positive responses, but the most divisive – with 37% in agreement, 36% disagreeing, and 27% unsure – is the suggestion that the statutory deadline which applies to (only) four particular types of decision by the Crofting Commission, should be removed. The deadlines apply in relation to: (1) applications to put crofts to another purposeful use (where the landlord’s consent has not been given); (2) obtaining consent to be absent from a croft; (3) determining whether a crofter is in breach of the statutory duties; and (4) deciding whether to accept an undertaking by a crofter as to how and when a breach will be rectified.

The basis for this proposal is consistent with other decisions taken by the Commission, (which perhaps are inadvertently - and arguably unfairly - delayed as a result of prioritising these four categories of case to meet the deadlines), and to increase the Commission’s efficiency. Those responding to the Consultation who disagreed and left comments, consider that deadlines are necessary to give assurance over timescales and to enable plans to be made, while some believe that removing deadlines will only bring about delay and erode the accountability of the Commission.

The proposal which provoked the most uncertainty relates to administrative sanctions being imposed by the Crofting Commission. 78% support the Commission being able to revoke prior approvals and put pending applications on hold in cases where a crofter has failed to provide requested information or has committed a regulatory breach. However, 31% are unsure whether any other type of administrative sanction should be available as well or instead.

In addition to answering the 49 Consultation questions, some respondents provided additional feedback, commenting – not for the first time - that the proposals are not extensive enough and a more fundamental package of reforms is required. Other comments made include that some of the proposals do not achieve (or in some cases hamper) their stated aims, and that the consultation does not provide enough detail on how proposals might work in practice to enable an informed judgement to be made.

What now?

The Scottish Government will now have further discussions with the Crofting Commission and other members of the Crofting Bill Group and the Crofting Stakeholder Forum, reflecting on the consultation exercise to develop a Crofting Bill. A timescale for follow up action and publication of the Bill has not yet been announced.

For further information or advice in the meantime, please get in touch with one of our agricultural lawyers or your usual Brodies contact.