DEVELOPMENT OF CROFTING LAW 1886-1911 THE NAPIER COMMISSION AND THE CROFTERS (HOLDINGS) (SCOTLAND) ACT 1886

Township of Camustianavaig and Ben Tianavaig behind it, Braes, Isle of Skye

Township of Camustianavaig and Ben Tianavaig behind it, Braes, Isle of Skye

This is the second of 12 posts 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.

THE DEVELOPMENT OF CROFTING LAW 1886-1911

Very few practitioners will ever have cause to consult anything other than their copy of the Crofters (Scotland) Act 1993, and perhaps, if they have a specific query relating to the (new) Crofting Register, they may have to resort to the Crofting Reform (Scotland) Act 2010. However, there are a further twenty acts of parliament, some entirely obsolete.[i]Development can be conveniently broken down in to six phases. 

(1) 1886-1911 

Despite the weight of evidence gathered by the Napier Commission, the Crofters Holdings (Scotland) Act 1886 did not deliver the measures which some had hoped for, particularly in relation to the restoration of lands lost during the clearances.[ii] Rather, the 1886 Act protected ‘any person who at the passing of this Act is tenant of a holding from year to year, who resides on his holding, the annual rent of which does not exceed thirty pounds in money, and which is situated in a crofting parish, and the successors of such a person in the holding, being his heirs or legatees’.[iii] In addition to security of tenure[iv] and compensation for improvements,[v] these newly defined crofters were also given the right to bequeath their tenancy to a family member,[vi] the right to renounce their tenancy,[vii] and the right to have a fair rent fixed every seven years.[viii] Notably, there was a requirement that tenants should be resident on their holdings, although this was part of the definition of ‘crofter’,[ix] rather than a statutory condition. There was no right to assign the tenancy and, importantly, if the crofter renounced and the land became vacant, the protection no longer applied. The protected status applied to the crofter, rather than the croft; a marked difference to the current position whereby once designated as a croft, the land remains such unless and unless a formal process of removal (e.g. decrofting[x] or resumption[xi]) is undertaken. Landlords, for their part, could remove a crofter who was in breach of the statutory conditions of tenure. They also enjoyed reserved rights to mine, quarry, shoot, make roads, take access, and resume all or part of the croft for the good of the estate. These reservations can still be found in Schedule 2 to and s. 20 of the Crofters (Scotland) Act 1993. The 1886 Act also established the first Crofters Commission, which was at that time a quasi-judicial body.[xii] Common grazings did not feature in the 1886 Act, but were subject to regulation by way of the Crofters Common Grazings Regulation Acts 1891 and 1908. These acts introduced the still-familiar concept of common grazings committees to manage the grazings.

 

The 1886 Act did bring some relief. The Report of the Royal Commission of the Highlands and Islands, published in 1892, remarked that fair rents, combined with the security of tenure now enjoyed by crofters, resulted in improved cultivation and better morale.[xiii] However, the same Report also identified that there had been little improvement in agricultural production in the Crofting Counties,[xiv] and the later Taylor Report published over sixty years later criticised the Act’s failure “to promote the consolidation of holdings or to restrict their subdivision”,[xv] and furthermore noted that the 1886 Act differed widely from the recommendations of the Napier Commission. There was a sense, by 1954, that the 1886 Act had been a missed opportunity, and MacCuish and Flyn, writing in 1990, observed that it ‘fell far short of what crofters had been demanding, especially by reason of failure to provide for restoration of lands lost in the Clearances.’[xvi] They further note that cottars – those with no access to land for subsistence agriculture – were particularly disappointed.[xvii]


[i] Crofters Holdings (Scotland) Act 1886, Crofters Holdings (Scotland) Act 1887, Crofters Commission (Delegation of Powers) Act 1888, Crofters Common Grazing Regulation Act 1891, Congested Districts (Scotland) Act 1897, Crofters Common Grazing Regulation Act 1908, Congested Districts (Scotland) Act 1897, Small Landholders (Scotland) Act  1911, Land Settlement (Scotland) Act 1919, Small Landholders and Agricultural Holdings (Scotland) Act 1931, Crofters (Scotland) Act 1955, Crofters (Scotland Act 1961, Crofting Reform (Scotland) 1976, Crofter Forestry (Scotland) Act 1991, Crofters (Scotland) Act 1993, Scottish Land Court Act 1993, Transfer of Crofting Estates (Scotland) Act 1997, the Land Reform (Scotland) Act 2003 (Part 3 thereof), Crofting Reform (Scotland) Act 2007, Crofting Reform (Scotland) Act 2010, Crofting Amendment (Scotland) Act 2013.

[ii] Flyn, D. and K. Graham, (2017) Crofting Law, Edinburgh, Avizandum, p. 5.

[iii] Crofters (Scotland) Act 1886 s.34.

[iv] Ibid. s.1.

[v] Ibid. s.8.

[vi] Ibid. s.16.

[vii] Ibid. s.7.

[viii] Ibid. s.6.

[ix] Ibid. s.34.

[x] Ibid. ss.24 and 25.

[xi] Ibid. s.20.

[xii] Agnew, Crofting Law, p. 1.

[xiii]  Report of the Royal Commission of the Highlands and Islands, 1892, cited in the later Taylor Report (see below), Chapter II, p. 13 paragraph 23.

[xiv] Report of the Royal Commission of the Highlands and Islands, 1892, cited in the later Taylor Report (see below), Chapter II, age 13, paragraph 23.

[xv] Report of the Commission of Inquiry into Crofting Conditions, published by Her Majesty’s Stationary Office April 1954, chapter 2, p. 12 paragraph 22.

[xvi] MacCuish, D. J. and D. Flyn, (1990) Crofting Law, Edinburgh: Butterworths/Law Society of Scotland, paragraphs 1.03 and 1.04

[xvii] Ibid.

The next post, which covers the development of crofting law between 1911-1955, will be published next week on this website. See note below for details of all 12 posts.

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

Eilidh

______________________________

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

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DEVELOPMENT OF CROFTING LAW 1911-1955 - EXPANSION ACROSS SCOTLAND, SMALL LANDHOLDERS AND THE SCOTTISH LAND COURT

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CROFTING LAW - CHAPTER INTRODUCTION