Our 2021 priorities: Protecting Scotland's crofting communities

David Findlay is the solicitor to the Crofting Commission and member of our Rural Affairs Committee. Here he discusses the Society’s Crofting Law Reform paper and makes the case for improving crofting law in the next Session of the Scottish Parliament, one of our priorities for the 2021 elections. Although this piece is non-political, any views expressed are those of the author in his capacity as a member of the Rural Affairs Sub-committee and do not necessarily reflect the views of the Crofting Commission.

The Society made recommendations in 2020 about the importance of making reforms to crofting legislation. Practitioners who deal with croft transfers, croft conveyancing, executries involving crofting interests and croft registration have been expressing concerns for some time about difficulties with the existing legislation and the importance of law reform.

The report recommends that crofting legislation creates difficulties in the following areas, and legal reform should be considered:

• succession to crofts;
• the definition of owner-occupier crofters;
• the definition of the crofting community in legislation;
• the statutory conditions of tenure.

There are many aspects of crofting legislation that could be considered for reform, but the Society’s work is politically neutral. There would appear to be a fair amount of political consensus as to the need for reform of crofting legislation, but it will be for the next government to decide how it wishes to reform crofting legislation. The Crofting Bill Team set up by the Scottish government has also identified parts of the legislation that should be reformed.

The work of the Society in connection with crofting legislation has focused on areas that cause difficulty to practitioners and crofters. There are some uncertainties regarding intestate succession in particular, and the relationship between the Crofters (Scotland) Act 1993 and the Succession (Scotland) Act 1964, that cause some uncertainties for practitioners who are dealing for instance with an executry comprising crofting interests.

Practitioners are also aware that the definition of owner-occupier crofters that appears in the legislation excludes certain crofts. It is the Society’s view that this should be addressed, as it understands that the underlying intention of the Crofting Reform (Scotland) Act is that crofts should be either tenanted crofts (with a landlord and tenant) or owner-occupied crofts, with vacancies arising only between one tenancy ending and another beginning.

The report also noted that the statutory conditions of tenure have changed little over the years. Many crofts remain tenanted, and it would seem appropriate to revisit the landlord and tenant relationship and consider whether changes, additions and deletions should be made to the existing statutory conditions of tenure. Some of the important statutory conditions have been superseded or replaced by crofting duties on residency and land use.

More widely, there are certainly many challenges and opportunities for the rural environment, and not least the climate emergency and the loss of biodiversity. From peatland restoration to the creation of new woodland to diversification of land use and local food production, there are opportunities in the rural environment that could also provide opportunities for crofters and crofting and for rural communities across the Highlands and Islands.

The Scottish Government published the National Development Plan for Crofting in March 2021. The Plan highlights that the Scottish Government remains committed to modernising crofting law. Law reform could better support the crofters who, and crofting communities which, play an important part of the rural economy and living in Scotland.