A new phase of crofting law and a new Crofting Commission

In the latest in our series of platinum anniversary blogs, Scottish solicitor at the Crofting Commission and Rural Affairs Sub-committee member, David Findlay looks at the introduction of a new phase of crofting law and a new Crofting Commission.

Legislative history

Crofting legislation dates back to 1886 and the Crofters Holdings (Scotland) Act 1886. However, within several years of the creation of the Law Society of Scotland in 1949, crofting legislation was fundamentally reformed and reshaped in the form of the Crofters (Scotland) Act 1955.  The 1955 Act re-established the Crofters Commission. The first Crofters Commission was established in 1886 and was abolished in 1912. Many of its judicial functions transferred to the Scottish Land Court, which was founded in 1912.  The second Crofters Commission assumed some quasi-judicial functions from the Scottish Land Court as well as a variety of administrative functions, which included the setting up and administration of a Register of Crofts. 

Between 1911 and 1955, crofting legislation was subsumed within small landholding legislation which applied across the whole of Scotland.  As a result of the 1955 Act, crofting legislation and the legislation applying to small landholdings diverged and crofting legislation applied, once again, exclusively to the crofting counties of Argyll, Inverness-shire, Ross-shire, Sutherland, Caithness, Orkney and Shetland.  The Small Landholders Acts 1911-1931 continued to apply to small landholdings, all of which were, since 1955, located outwith the crofting counties.  The second Crofters Commission was charged with regulating and promoting the interests of crofting and keeping under review matters relating to crofting.

Developments since the birth of the Law Society

The life of the Law Society of Scotland has seen many changes to crofting law, some fundamental.  The Crofters (Scotland) Act 1961 set out further responsibilities on the part of the Crofters Commission to set up an enhanced Register of Crofts.  More fundamental reform of crofting legislation was made by the Crofting Reform (Scotland) 1976, which provided crofters with the right – for the first time – to purchase their croft holdings, as well as an absolute right to purchase the site of the croft dwelling-house.  For the first time, land ownership became an important part of crofting.  Today, crofting is a hybrid system of tenanted crofts and owner-occupied crofts.  The 1976 Act also provided crofters with what would turn out to be a very important right to share in the development value of any development land resumed by the landlord.  Major developments such as onshore windfarms on common grazings have provided crofters with opportunities to share in the value of such developments.

Further changes were made to crofting legislation by the Crofting Reform (Scotland) Act 2007 and the Crofting Reform (Scotland) Act 2010. The 2007 Act provided for the creation of new crofts, which importantly, has seen the creation of many new crofts in the last decade.  The 2007 Act also enabled a crofter, with the consent of the Crofters Commission, to use part of a common grazings for non-crofting purposes.  The 2007 Act enabled landlords and owners of croft land and common grazings to make a so-called 'Scheme for Development' application to the Scottish Land Court to use croft or common grazing land for a development purpose.

The most recent fundamental reform of crofting legislation was made by the 2010 Act, which renamed the Crofters Commission as the Crofting Commission and placed a greater focus on regulation. The 2010 Act also sought to create greater parity between croft tenants and owner-occupiers. Owner-occupier crofters and croft tenants alike are subject to crofting duties to reside on or close to the croft and to cultivate the croft. The 2010 Act also set up a new map-based Crofting Register, administered by Registers of Scotland.

The future

If much has happened within crofting legislation since the Law Society was founded, much is also promised to happen in coming years. The Scottish Government has committed itself to introduce new legislation in the lifetime of the current parliament, with a commitment to bring forward more fundamental changes to crofting legislation in a future parliament.

If you would like to contribute a blog on the biggest change or the most significant piece of legislation you have seen during your career or your prediction for the future, please email your 300 word blog in a Word document to comms@lawscot.org.uk

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Kenneth Pritchard OBE played a key role in the Society’s contribution to the Solicitors (Scotland) Act 1980 during his 21 years as the Secretary of the Law Society of Scotland. Mr Pritchard became an honorary member of the Law Society of Scotland in 1997.

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