Crofting law reform proposals: consultation analysis

Executive Summary

Introduction

Building on earlier reforms, the Scottish Government is exploring legislative options to update crofting law. A public consultation on a range of proposed reforms ran between 6 June and 2 September 2024. In total, 163 consultation responses were received, with 136 responses from individuals and 27 from organisations. The analysis also included notes collated from 15 in-person consultation events hosted by the Scottish Government. These were held in a variety of crofting communities and were attended by 257 people.

Croft tenancies for two people

To support entry into crofting, views were sought on extending assignation of a croft tenancy to a maximum of two people as a joint tenancy. While 62% of those answering^[1] supported the proposal, the most common view among the half of respondents who left an open comment was that the proposal could increase legal complexity and not adequately address the stated aims. Other themes in comments included that joint croft tenancies could benefit specific groups or that they could increase conflict or legal challenges.

Standard securities

The Scottish Government sought views on whether, in principle, the power to grant a security over a croft lease would be supported. Overall, respondents were more likely to support these proposals than not. Potential lending issues was the most common theme in open comments, followed by concerns about the potential for the proposal to increase croft purchase prices.

Extent of crofting community rights

Two thirds (65%) agreed with the proposal to continue to limit objections to applications to crofters and grazings shareholders. Among the third of respondents who commented, however, most disagreed in some way, with many expressing the view that the right to object to applications should extend to the wider community or to crofters elsewhere.

Four fifths (81%) agreed that the Crofting Commission should weigh up the sustainability of crofting across a parish. Views on how to define areas was the most common theme in open comments, followed by opposition to decrofting and the need to maintain crofts.

Reporting a suspected breach of duties

Extending the right to report a suspected breach of duty to subtenants and short-term leaseholders of crofts within a local crofting community was supported by 72%. While 52% were in favour of extending this right to non-crofters who reside within the local community where the croft is situated.

Public notification, service of notices and meetings

Around four fifths supported proposals to use wider means for public notification by the Crofting Commission (81% agreed), and for enabling its public meetings to be on-line or hybrid (83% agreed).

Grazings Committees

The proposal for grazings committee duties to be limited to reporting on the condition of common grazings was supported by 74%, while 77% agreed that meetings to appoint a grazings committee need to be notified publicly. Over nine in ten (91%) agreed that shareholders should inform their grazings committee of their preferred email or postal contact address.

Link between grazings share and inbye croft, and duties of grazings shareholders

Over half (54%) felt there was a need for further legislation on the purchase of grazing rights, though a quarter (26%) felt details should be left to the parties as at present. Open comments called for grazings rights to be automatically retained with the parent croft or suggested greater legislative clarity was needed.

There was widespread support for the proposal to enforce adherence to residency and land use duties for stand-alone grazings shares (77% agreed), with open comments suggesting this could help manage crofter activity and that enforcement was needed.

In order of priority, respondents’ views on which organisations should have initial responsibility for finding a new shareholder should a grazings share be forfeit due to a breach of duties were: grazings committees (47%), the Crofting Commission (23%), and landowner (16%). Three fifths (60%) agreed that where a replacement shareholder could not be found the share should be dissolved and absorbed by the current shareholders and grazings committee. However, one in three respondents left open comments where the most frequently advocated option was for shares to be retained, with various suggestions made as to how this could occur.

Use and creation of common land

High support was noted for extending and adapting provisions to allow for environmental projects (85%). However, in open comments many caveated their support and raised questions about ownership of carbon rights or called for greater guidance in this area. Over three quarters (79%) supported a proposal that an owner who does not respond to a crofter or grazings committee application for forestry can be deemed to have consented.

Three quarters (76%) agreed that assessment of crofter-led innovations on common grazings should parallel the arrangements for inbye land. Views expressed by the half of respondents who commented included that arrangements for common grazings should mirror that for inbye croft land or that crofting should be limited to certain purposes. Issues with current arrangements were raised, as was the need for greater clarity in this area.

Three fifths (60%) agreed with the proposal that landowners should be able to apply to designate land as a new common grazing even if it is adjacent or contiguous to an existing croft, while 19% disagreed and 21% were unsure.

Breaches and the enforcement of duties

Four in five (79%) agreed the first two stages in the current process for investigating suspected breaches of duty should be combined. The most common theme in open comments was agreement that speed, efficiency and strong enforcement are important.

A proposal that a crofter should not have to maintain or use their croft themselves but can arrange for this to be done on their behalf, was supported by 71%. Three fifths (60%) agreed, and 33% disagreed, that a tenant crofter should not have to obtain consent before making use of the croft for an activity that is environmentally beneficial.

Over four fifths (82%) agreed only natural persons should be able to become owner-occupier crofters. One in ten (11%) disagreed, with some commenting that a singular person could be allocated responsibilities where non-natural ownership occurred. Four fifths (81%) agreed that where a company or charity is currently an owner-occupier crofter, the croft should require to be transferred to one or more natural persons, the next time it changes hands.

Three quarters (75%) agreed with the proposal to reduce the annual Crofting Census to at least once every three years. Nine in ten (89%) agreed that if a subtenant is not meeting their statutory duties, the Crofting Commission should be entitled to terminate the sublet.

Crofting regulations

Views were sought on proposals to redesign the regulatory controls on who holds crofts. Among the proposals, the highest support (86%) was recorded for the proposal that each crofter should be required to confirm, at the next Census or within two years of taking up the croft, whether they are complying with the duties. However, views expressed in open comments emphasised the need for enforcement at the assignation stage.

Two thirds (68%) agreed that transfer of owner-occupier crofter status should be subject to a Crofting Commission decision, in cases where the purchaser already holds three or more holdings in the Register of Crofts, while 61% agreed that sublets should only require prior approval if the landlord raises an objection. A slightly lower proportion (57%) agreed that assignations should only require prior approval if the landlord raises an objection or if the incoming crofter already holds three or more holdings in the Register of Crofts.

Over four fifths supported proposals that the Crofting Commission should be given the power to correct the status of croft owners who deserve owner-occupier status (83% agreed) or to correct errors in its Directions and Orders where the case for doing so is clear (89%). A similar proportion (87%) agreed that the Crofting Commission should have the power to adjust croft boundaries, on an application by all the parties, where those parties agree.

Most (89%) supported the proposal for the Crofting Commission to consider whether the applicant is complying with their duties when considering a decrofting application. In open comments, respondents welcomed greater enforcement in this area or expressed a preference for limits on decrofting. Four fifths (82%) agreed the Crofting Commission should consider previous decroftings when determining decrofting applications, for instance, to prevent a croft becoming too small or unviable.

Administrative sanctions where there is a regulatory breach were supported by 78%, with open comments in response to this question expressing a view that greater enforcement is required. Three quarters (78%) agreed the Crofting Commission should be able to revoke approval or decline to deal with applications, and 60% considered other types of administrative sanction should be available as well.

Elections of Members of the Crofting Commission

Many expressed the view in open comments that there should be a majority of elected members on the Crofting Commission board, though other suggestions were made as to how the split between elected and appointed members could occur, including some saying that a majority should be appointed. Views were split on whether anyone who has twice previously been elected as a Crofting Commissioner should be able to stand again (41% in favour, 38% opposed and 21% unsure. Over three quarters (77%) felt voter eligibility should operate as at present i.e. one vote per croft but no crofter to have more than one vote, while 5% disagreed and 18% were unsure.

Simplifying Crofting

The highest support recorded across all the proposals was that the Keeper of Registers should be able to correct errors in the Crofting Register (93% agreed). However, there was also considerable support for other proposals to simplify processes, such as that all registration applications should be copied to the relevant landlord (70%); that the purchase of title to a croft by a tenant crofter should be a trigger for registration in the Crofting Register (89%); and that owner-occupiers should be required to give the same personal information for the Register of Crofts as tenants (85%). Reasons for lower levels of support for copying registration applications to landlords were given in open comments, with the most common being that making changes is not worthwhile, for instance, as it could increase complexity.

Views on whether deadlines for four types of decisions by the Crofting Commission should be removed were mixed with 37% in favour, 36% opposed and 27% unsure. Among the quarter of respondents who commented on this proposal, the most common theme was for the deadlines to be retained.

Conclusion

Overall, the key message from the closed question results is that there is broad support for many of the proposals included in the consultation. However, a range of perspectives were presented in open-ended comments. Supporters described how the proposals could make crofting more accessible and simplify many existing processes. However, both supporters and opponents highlighted potential challenges or unintended consequences to consider if the proposals are to be enacted. In conclusion, the responses to the consultation, and particularly the variety of views evident in open comments, will provide valuable and informative evidence for the Scottish Government to draw on to continue discussions and inform the drafting of future legislation.