DEVELOPMENT OF CROFTING LAW 1993-1997 & 1997-2019 CONSOLIDATION, 2 REFORM ACTS, SHUCKSMITH & THE SUMP

This is the sixth of 11 posts ( it was to be 12 but this weeks’ post is an amalgamation of two) serialising my chapter on crofting law which appeared in “Land Reform in Scotland” edited by Malcolm Combe, Jayne Glass and Annie Tindley and published by Edinburgh University Press in 2020.

1993-1997

 The Crofters (Scotland) Act 1993 consolidates the 1955, 1961 and 1976 Acts. As is the norm for consolidation statutes, it did not make substantive changes to the law, rather it organised previously disparate statutes into one piece of legislation. It has been subsequently amended by the 2007, 2010 and 2013 Acts.

1997-2019

After the 1976 Act there followed a period of around two decades before there was any word of new crofting legislation.[i] The Land Reform Policy Group, formed after the Labour Party swept to power in Westminster in 1997, identified a vision for crofting in the future. The vision included simplified legislation, more sustainable crofting communities, more local involvement and accountability, more active crofters, and allowing crofts to be utilised for activities other than agriculture.[ii] Although crofting law did not feature in the Land Reform Policy Group’s Proposals for Legislation the following year,[iii] a draft crofting bill was published by the Scottish Parliament in 2002. However, the draft bill failed to catch the public’s imagination, and by 2005 it was almost unrecognisable as the Crofting Reform etc. Act 2007. Many of the more controversial clauses of the draft bill had been shelved pending the report of the Committee of Inquiry on Crofting, chaired by Professor Mark Shucksmith. Professor Shucksmith’s remit was to identify a vision for the future of crofting and to suggest legislative and administrative changes to realise that vision. The ‘Shucksmith Report’ [iv] was published on 12 May 2008 and proposed thirty recommendations, some of them radical.

The draft bill which followed the Shucksmith Report contained many proposals which were widely criticized and ultimately dropped, including (1) the concept of using a croft tenancy as security for a mortgage, and (2) an occupancy requirement relating to all land decrofted since 12 May 2008, which demanded that any house built on such land be used ‘as a main residence’ by either owner or tenant. These mechanisms are of a particularly technical nature and are not well suited to the purposes suggested by the Committee, which led to some scepticism from the legal community. The 2010 Act that eventually followed all of this reorganised and reconstituted the Crofters Commission as the Crofting Commission and also provided for a majority of elected Commissioners. The Act also introduced a new, map-based Crofting Register. It also contains measures of a regulatory nature designed to allow crofters who do not fulfil their various obligations to be regulated more effectively.

The 2007 and 2010 Acts, while no doubt well-intentioned, have done crofting no favours, and crofting legislation is generally accepted to be in desperate need of restating, redrafting, and/or consolidation. The Crofting Law Group[v]has been pushing for change, with members Derek Flyn (retired solicitor) and Keith Graham (retired Principal Clerk to the Scottish Land Court) heading the Crofting Law Sump,[vi] a project to identify and prioritise areas in need of attention.

In April 2018, the Scottish Government[vii] confirmed that it will, within the current parliamentary term, reform the more urgent aspects of crofting law. There is a further commitment to a more strategic review of crofting law commencing now, but being delivered by a subsequent Parliament.

[i] MacLean, ‘Recent Developments in Crofting Law’, paragraph 8.

[ii] Land Reform Policy Group, Identifying the Solutions, Scottish Office, September 1998, at p. 78.

[iii] Land Reform Policy Group, Proposals for Legislation, Scottish Executive, July 1999.

[iv] The Final Report of the Committee of Inquiry on Crofting, 2008, available at <https://www.webarchive.org.uk/wayback/archive/20150404100646/http://www.croftinginquiry.org/> (last accessed 28 March 2019).

[v] An organisation to promote the knowledge and understanding of crofting law, with membership open to all - <http://www.croftinglawgroup.org> (last accessed 28 March 2019).

[vi] The Crofting Law Sump is a project undertaken by members Derek Flyn and Keith Graham, to identify areas of crofting law in need of reform. The Final Report can be found at <http://www.crofting.org/uploads/news/CLGreport.pdf> (last accessed 28 March 2019).

[vii] <https://blogs.gov.scot/rural-environment/2018/04/12/crofting-update/> (last accessed 14 March 2019).

The next post deals with one of the challenges to crofting law, crofting legislation itself.

See note below for details of all (now) 11 posts.

As always, if you need help or wish to discuss crofting law, do get in touch.

Eilidh

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Note Referred To:-

Introduction

Development of Crofting Law

1886-1911

1911-1955

1955-1976

1976-1993

1993-1997 & 1997-2019

Challenges

Crofting legislation

Crofting law v land reform

The Conflicting Priorities of the Crofting System

The Impossibility of Purchase

Conclusion