Crofting law reform proposals 2024: consultation

5. Enhanced Crofting Commission Powers

The focus of crofting regulation

The priorities for the regulation of crofting by the Crofting Commission need to be kept under review, to ensure that the system of regulation remains fit for purpose and effectively supports the sustainability of remote communities and effective land use in those communities. The Scottish Government is also mindful that any system of regulation needs to be proportionate. Regulation places restrictions on individuals, and also carries a cost to the public purse.

Historically, Crofting Commission regulation has focussed on three broad types:

1. Enforcement of crofting duties, for example taking regulatory action to ensure that crofters live within 32 km of their croft and put it to use.

2. Decisions which adjust the amount of land, or the configuration of land, under crofting tenure, such as creation of crofts, decroftings and apportionments.

3. Decisions on who holds crofts, such as assignations, sublets and short-term leases.

The Scottish Government considers that the first two types of regulatory decision are fundamental to the health of the crofting system, but that there are questions about the necessity and effectiveness of the third type. Both the Scottish Government and the Crofting Commission are keen for regulatory processes to be reviewed and for the Commission to introduce improvements that will increase overall efficiency in its service to its customers. Where the Commission focuses its efforts is critical to this outcome.

Currently, all proposed assignations, or sublets of leases, or proposed short-term leases, even from a crofter to a close family member, have to be assessed and approved by the Crofting Commission. These applications make up a significant proportion of the Commission’s regulatory work, and represent about a third of all applications received (approximately 400 a year).

But the Commission can only reject these applications for a good reason, for example if there is evidence that an incoming crofter will not fulfil the crofting duties, and it is rare for such evidence to be available in advance of the assignation taking place. Consequently, it is not surprising that in 2022/23, 99% of assignations and 97% of sublets/short-term leases were approved rather than refused by the Commission. This does not suggest an effective and proportionate aspect of crofting regulation.

In contrast, there are currently no regulatory controls over the transfer of owner-occupier crofter status. Anyone who purchases an owner-occupied croft automatically becomes an owner-occupier crofter without requiring the approval of the Crofting Commission.

The Crofting Commission cannot refuse the purchase of the land which comprises the owner-occupied croft, as land purchases are not regulated by the Commission. However, we propose that the Commission could refuse the transfer of owner-occupier status, and if so, this would leave the incoming purchaser liable to be required to let the croft to a tenant crofter.

We consider that prior approval of lease arrangements, which include assignations, is not an effective way of ensuring that crofters fulfil their duties. This should instead be regulated by a post-transfer check after 2 years, whereby the new tenant is asked to confirm they are adhering to their duties. This will be monitored by the Crofting Commission who will carry out post-transfer checks on a percentage of new assignees.

This new provision would free up Crofting Commission resources for direct engagement with crofters who are actually in breach of duties. However, prior approval of lease arrangements, and of purchases of owner-occupied crofts, is necessary to prevent any one person owning or controlling multiple crofts which would, we think, make it harder to maintain rural populations in the crofting counties.

We propose to redesign the regulatory controls on who takes on a croft, both for assignations / purchases of owner-occupied crofts, and for sublets / short leases. We propose that transfers or purchases should only need prior approval by the Crofting Commission in the following circumstances:

• in the case of an assignation:
  • where the proposed incoming crofter already holds three or more crofts and/or stand-alone grazings shares (deemed crofts), as recorded in the Register of Crofts, or
  • where the landlord objects.
• in the case of a sublet:
  • where the total period of the sublet would exceed 5 years, or
  • where the landlord objects.
• in the case of a short-term lease, where the lease would exceed 5 years.
• in the case of the purchase of an owner-occupied croft, where the proposed owner already holds three or more crofts and/or stand-alone grazings shares (deemed crofts), as recorded in the Register of Crofts.

As a result of these changes, the requirement for an assignation, sublet or short-term lease to be advertised would be removed, and the applicant would only need to notify the Crofting Commission and the landlord.

This will significantly speed up the time for processing assignation applications, which will benefit crofters. It will also benefit the Commission which will be able to use the released resource on matters such as regulating the land in crofting tenure, and resolving breaches of residency and land use.

Question 5.1

Do you agree 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? [Yes/No/Don’t Know]

Question 5.2

Do you agree that transfer of owner-occupier crofter status should be subject to a Crofting Commission decision, in cases where the purchaser already holds 3 or more holdings in the Register of Crofts? [Yes/No/Don’t Know]

Question 5.3

Do you agree that sublets should only require prior approval if the landlord raises an objection? [Yes/No/Don’t Know]

Question 5.4

Do you agree that each incoming assignee and owner-occupier crofter should be required to confirm, at the next Census or within 2 years of taking up the croft, whether they are complying with duties? [Yes/No/Don’t Know]

Question 5.5

If you wish, please comment on your answers to Q5.1 to Q5.4. [free text box]

Power to grant Owner-Occupier status

It is clear that a number of individuals have unintentionally, though in good faith, fallen into the circumstances of being a landlord of a vacant croft rather than an owner-occupier crofter. In some circumstances, the individual may be unaware of the situation. These are individuals who own and physically occupy a croft but, perhaps because of events in the distant history of the croft, do not meet the required conditions for an owner-occupier crofter as set out in section 19B of the 1993 Act. The Crofting Commission estimates that such circumstances apply in respect of possibly several hundred crofts.

Theoretically, the Crofting Commission could ask these individuals to put a tenant in place, but in many cases the Commission has no wish to do so. It has been left for the Commission to deal with this by “letters of comfort”, indicating circumstances in which they would not seek letting proposals for these crofts. There is also the problem with a lack of any means to correct the status of those who “otherwise occupy” land stated by the Act to be vacant.

The proposal is that these individuals should be able to apply to the Crofting Commission to be granted owner-occupier status. We believe this makes sense in both policy and regulatory terms, in that it should assist in encouraging active use of croft land, and it will allow some individuals access to grant schemes that they don’t currently have.

The obligation to prove eligibility will be placed on the applicant. Such as:

• proof of ownership of the land, including an extract from the land register showing the extent of the croft land owned and concerned in the application; and
• confirmation that the applicant understands the duties and obligations required of a crofter as set out in schedule 2 to the 1993 Act and is willing to abide by them.

It would then be for the Crofting Commission to decide whether to grant owner-occupier crofter status, taking account of the information provided by the applicant and such other criteria as might be specified. A successful application will be a trigger event for croft registration, and there will be recourse to the Scottish Land Court in the event of a dispute over the Commission’s decision.

Question 5.6

Do you agree that the Crofting Commission should be given the power to correct the status of croft owners who deserve owner-occupier status? [Yes/No/Don’t Know]

Minor reorganisation – Crofting Commission power to adjust croft boundaries by mutual consent

One of the more significant powers of the Crofting Commission is the power to “reorganise”^[19] crofts within a township, that is, to reallocate the land within a township for the benefit of the whole township. Typically, this involves adjusting the boundaries of crofts to make each croft more self-contained with coherent boundaries, while ensuring that the adjustments are fair to all the crofters involved.

The Commission generally uses this power only where there is consensus between all the crofters in the township and the landowner(s) as well, and this means it is relatively rarely used.

However, instances do arise where there is a desire to adjust boundaries between two neighbouring crofts, or a small number of crofts. Examples can include:

• A small number of neighbouring crofts on the same estate, where the historic boundaries are illogical, and their redrawing would be of benefit to all the crofters concerned.
• Cases where a small amount of land between two crofts does not belong to either, but it is agreed desirable to add it to one or both of the crofts.

For such cases and similar situations, we propose to create a new power for the Crofting Commission to change the boundaries of one or more registered crofts, on an agreed application submitted by all the parties involved, namely all the crofters whose croft boundaries would be changed, and all the landowners whose land would be affected by the changes. The process would be similar to that for a township reorganisation, except that the onus would be on the applicants, not the Commission, to work out the details of the changes they proposed.

Registration, or updates to existing registrations, of the croft boundaries would be required for all approved boundary adjustments, and if any applications (for example, adjusting the boundaries of two owner-occupied crofts) required change of land ownership, conveyancing would need to be organised by the parties, at their own expense, with consequential registration in the Land Register as well.

Question 5.7

Do you agree that the Crofting Commission should have the power to adjust croft boundaries, on an application by all the parties, where those parties are in agreement? [Yes/No/Don’t Know]

Crofting Commission power to correct manifest (clear) errors in its Directions and Orders

A Crofting Commission Direction or Order is a legal document, which may change the legal status of land or may grant rights to certain individuals. It cannot easily be set aside or altered, other than by a successful appeal to the Scottish Land Court.

However, occasionally, after a Direction or Order has been issued, errors are sometimes discovered, particularly with maps. For example, it may come to light that part of an area covered by a Decrofting Direction was not part of the applicant’s croft, or that part of an apportionment was not common grazings land. There may be other types of error, such as spelling mistakes for the croft or of one of the parties.

We propose that the Crofting Commission should have a power to correct such errors and reissue an amended Order or Direction. This may be the quickest and easiest way to correct what might otherwise be a difficult problem for the interested parties. However, we propose that this power should only be available for clear errors and where there is no dispute about the best way forward. An application to the Scottish Land Court would continue to be required to correct any other error.

Question 5.8

Do you agree that the Crofting Commission should be able to correct errors in its Directions and Orders where the case for doing so is clear? [Yes/No/Don’t Know]

Decrofting

In most of the regulatory applications that the Crofting Commission has to deal with, such as assignations and divisions, the Commission must, in accordance with legislation, consider whether someone is using the land and is resident, before making its decision. However, in the case of decrofting applications, those considerations do not apply.

It has been raised by crofting stakeholders that there needs to be increased scrutiny on decroftings, in particular those that involve someone who is either in breach or suspected to be in breach of their duties, and where there have been multiple decroftings on the croft. We propose that when the Crofting Commission considers any decrofting application, including the statutory right to a house site, it will be a material consideration as to whether the applicant is complying with their crofting duties and whether the croft has received previous decroftings, and these might be reasons to refuse the application. This will include those applicants that have been served a breach of duty notice by the Commission. Currently, there is nothing in legislation preventing a crofter from making multiple decrofting applications whilst they are in breach of their duties.

Question 5.9

When considering a decrofting application, do you agree that the Crofting Commission should consider whether the applicant is complying with their statutory crofting duties, such as being resident and cultivating the croft? [Yes/No/Don’t Know – comment]

Question 5.10

When considering a decrofting application, do you agree that the Crofting Commission should consider whether the croft has received previous decrofting applications? [Yes/No/Don’t Know – comment]

Sanctions

In connection with regulation, crofting legislation gives a number of responsibilities to crofters and owners of croft land.

It is therefore important that we ensure that the information regarding duties is made available to incoming crofters and crofting solicitors and agents, in advance of any croft purchase to make it as easy as possible for them to comply with the various requirements.

The Crofting Commission may issue a Direction or Order which includes conditions that must be met by the crofter. Crofters are also required to complete the annual census, and both crofters and owners of croft land are in certain circumstances required to provide information to the Commission to enable it to regulate effectively.

It is in everyone’s interests that orders are complied with, and that information required to properly regulate and support crofting is provided promptly and in full.

In order for that to happen there should be effective and proportionate sanctions for regulatory breaches.

Current legislation applies a variety of sanctions in cases where a crofter or owner has not complied with the requirements, including in some cases making this failure a criminal offence. Criminal sanctions will remain appropriate in cases of fraud (for example, fraudulent claims of crofting grants or subsidies), but there is rightly a high threshold to be met before any breach is the subject of criminal proceedings.

The Scottish Ministers consider therefore that the Crofting Commission should be able to apply administrative sanctions where there is a regulatory breach, and they seek views in that respect.

It has been proposed for example that the legislation should be updated to provide for sanctions on the following basis:

• Where a crofter has failed to comply with the conditions imposed by the Crofting Commission when approving their application, the penalty should be that the approval is revoked, unless there are particular circumstances that make this unrealistic in certain cases.
• Where a crofter or owner-occupier crofter has failed to complete the annual census, or to provide information required by law, the sanction may be that any current or future application they make may be put on hold by the Commission until the matter is resolved.

Other approaches are possible, and we welcome views in that respect.

Question 5.11

Do you agree that the Crofting Commission should be able to use administrative sanctions where there is a regulatory breach? [Yes/No/Don’t Know - Comment]

Question 5.12

If yes, do you agree that the Crofting Commission should be able to revoke approval or decline to deal with applications? [Yes/No/Don’t Know]

Question 5.13

If yes to Q 5.11, do you consider that any other type of administrative sanction should be available as well as, or instead of, a power to revoke approvals or consider applications? [Yes/No/Don’t Know]

Elections of members of the Crofting Commission

The Crofting Commission was established in 2012, replacing the former Crofters Commission, with a new constitution.

The Crofting Commission is unique among Non-Departmental Public Bodies in that the majority of its Board is elected, through elections which take place every five years. The Board of 9 comprises 6 commissioners elected by crofters, and 3 who are appointed by the Scottish Government in the usual way.

Elections to the Commission are regulated by the Crofting Commission (Elections) (Scotland) Regulations 2011^[20]

Following the crofting elections of 2022, it was agreed between the Crofting Commission and the Scottish Government that the 2011 Regulations need updating.

The 2011 Regulations are made under paragraph 7 of schedule 1 to the Crofters (Scotland) Act 1993. Paragraph 7(6) provides that before making regulations under that power the Scottish Ministers must consult such persons or bodies as they think appropriate on the constituency boundaries to be used, and the persons who are eligible to vote, in elections of persons as members of the Commission.

Therefore, we are taking this opportunity to consult on proposed measures on a range of electoral issues that would be taken forward in secondary legislation.

It has been 12 years since the establishment of the current arrangement, and it is appropriate to take this opportunity to take stock. Throughout the life of the Crofting Commission, elected commissioners have provided leadership for the Commission from within the sector. However, no system is perfect and there are areas that we may wish to look at in order to strike a better balance:

• The Crofting Commission can suffer a lack of continuity in its leadership if most or all of the elected commissioner posts change hands at the same time, as happened at the 2017 elections.
• The same commissioners might be elected for several consecutive elections, preventing the desirable turnover of Board membership.
• It may be necessary, following elections, to choose as appointed commissioners those who have particular skills to complement the rest of the Board, such as an ability to represent the views of landlords or to speak Gaelic (both required by legislation), or experience of finance, audit, IT or public sector governance. With only three appointed posts available, there can be considerable pressure on the appointments process.

The role of the Crofting Commission Board is to provide leadership and direction for the Commission, together with support and guidance, and to ensure the Commission delivers its functions effectively and efficiently. There are advantages to having both elected and appointed members on the Commission Board, and it is also important that we ensure that any given Board has the depth of knowledge and experience to carry out its functions.

Whilst we are keen to retain a strong voice for democratically-elected crofters, we would like to hear the views of crofters on whether we should consider balancing the Board with a more even split of elected and appointed members. This might reduce the number of crofters on the board, but not always, as crofters can also apply for the appointed positions.

Additionally, we would like to consider whether there should be a cap on the number of times that a commissioner can be elected, for example, twice only. This change would be in line with accepted good practice in Board membership, and the implied limit of 10 years as an elected commissioner would be similar to the limit of 8 years that an appointed commissioner can serve on the Crofting Commission Board.

Question 5.14

Do you have any suggestions for how we split the number of Commissioners between elected and appointed? [Free Text]

Question 5.15

If we were to reduce the number of elected Commissioners, how should we divide the crofting counties into constituencies? [Free text]

Question 5.16

Should anyone who has twice previously been elected as a Crofting Commissioner be able to stand again in another crofting election? [Yes/No/Don’t Know]

Voting in Elections

Currently, only registered crofters (including those of deemed crofts) and owner-occupier crofters aged 16 years or older can vote in the crofting elections. The previous elections operated on the basis of one vote per croft except that a crofter could only have one vote no matter how many crofts they had. If a crofter had crofts in more than one constituency, the constituency where they were eligible to vote was the one where they lived.

These arrangements appear to command the confidence of the crofting electorate and consequently, the Scottish Government is not proposing any changes to voter eligibility in this bill.

Question 5.17

Should voter eligibility operate on the same basis as for the previous three elections? [Yes/No/Don’t Know – comment]