In this blog item, Robert Sutherland looks at The Scottish Government's new consultation on modernising crofting law.

The Scottish Government opened a new consultation on modernising crofting law on 28 August 2017.  The consultation is the most recent step on a long and somewhat tortuous road for crofting law reform over nearly two decades.  The consultation process closes on 20 November 2017.

1997 - 2017

Crofting legislation originated with the Crofters Holdings (Scotland) Act 1886 and was most recently consolidated in the Crofters (Scotland) Act 1993.  The process for reform of the system of crofting regulation contained in the 1993 Act started with the Land Reform Policy Group (LRPG), which was created in 1997 in preparation for the Scottish Parliament.  The LRPG issued two consultations covering land reform, agricultural tenancies and crofting before publishing its final report, “Recommendations for Action”, in January 1999.  Chapter 6 of the report dealt with crofting legislation.  It noted that there was a need for “more local involvement in and accountability for crofting administration, and much simplified crofting legislation and administration”.  That last observation had not been made for the first time, nor the last.

Crofting law reform took its place in a queue behind the wider land reform agenda and changes to the agricultural holdings legislation.  Proposals for reform in the Crofting Reform Bill 2006 led eventually to the Crofting Reform etc. Act 2007, the promise of further investigation of crofting issues, the Shucksmith Committee of Inquiry on Crofting, the Crofting Reform (Scotland) Act 2010, and (to correct a specific problem with the 2010 Act), the Crofting (Amendment) (Scotland) Act 2013.  In 1998, it had been proposed that crofting regulation should be devolved from the Crofters Commission.  A decade later the Shucksmith Report (May 2008) recommended that the Commission should be abolished.  Neither of these proposals have been implemented, and the Commission has been re-constituted as the Crofting Commission, with greater regulatory powers.  Recent problems affecting the Commission, and the changes that have followed from that, have been widely discussed elsewhere.

The need for legislative change was focussed in the work of the Crofting Law Sump, which produced a Final Report in November 2014.  That report identified 6 drafting errors in the existing legislation, and set out 17 proposals for reform, combining legislative and policy issues.  In 2016 the Scottish Government announced that a Crofting Bill was planned for later in the 2016-2021 session of the Scottish Parliament.

2017 Consultation

Crofters, like virtually all farmers and small business owners, generally want to be able to get on with running their own crofts with the least amount of regulation and form-filling possible.  At the Crofting Law Group’s 2017 Conference in Stornoway, the crofters in attendance expressed the desire for less legislation.  That is understandable, but it makes achieving consensus difficult, because crofting is both a way of life and a creature of statute.  The existing legislation can be difficult to understand.  Some of it is out of date, other parts are inconsistent with each other.  There is also a limit to the amount of time that the Scottish Parliament can spend on the topic if the Scottish Government are to keep their promise of a new crofting legislation before May 2021.  Which brings us to the current consultation process.

The Consultation has three sections.  Section 1 provides an introduction and sets out the overarching Scottish Government policy on crofting law.  Section 2 sets out four options for legislative change (with the ‘pros’ and ‘cons’ for each option), and asks whether there might be any different approaches which do not involve legislative change.  Section 3 selects seven priority areas which have been raised consistently as problem issues.  The extent to which these areas have been highlighted as problematic, and the differences of opinion that exist about that, are discussed.  The discussion is then followed by asking what are the main opportunities for change, what specific changes should be made, what would be the practical effects of change, and what other means could be used to address the problem without legislating.  Consultees are asked to prioritise the seven subjects considered by the consultation, and to identify other priorities and thoughts which are not covered by it.

The experience of the last twenty years shows that there are no easy answers.  The persistent call has been for clarity, conciseness and consistency.  Easier to say than to do.  Experience suggests that piecemeal change can brings its own problems, and it does not help if new provisions are shoehorned into existing legislation.  Whether the consultation produces any greater sense of consensus as to how to proceed than has existed up until now is something which we can only wait and see.  Consolidation or a clean sheet, or neither?  What happens next might well depend on you.

The consultation documentation, and other background documents are available at https://consult.scotland.gov.uk/agriculture-and-rural-communities/crofting-consultation-2017/.  The consultation response can be filled in online, and that response can be saved and then added to before final submission.  Remember, you have until 20th November 2017 to submit your response.