The last few years have been somewhat difficult for crofting from a legislative perspective. Much of the focus has been on land reform and agricultural tenancies, leading to a feeling that crofting is being ignored.
This is not the case, however, as the issues faced have been very specific and crofting deserves its own piece of legislation to deal with these. So the Scottish Government's launch of a consultation on crofting legislation in August was welcome.
Problems with crofting just now have been well documented, with some specific legislative problems making life much more difficult for crofters. Some of this could be put down to teething problems with, for example, the new crofting register. However, one of the most serious problems was somewhat self-inflicted by the Crofting Commission when it decided to pursue crofters in the Western Isles in respect of the management of their common grazings. The Commission eventually backed down but the damage had been caused and relations between crofters and their regulators were at an all-time low.
Matters have steadied a bit since then but with the relationship breakdown there have been calls for a review of all crofting legislation. The Government responded with this consultation focusing on what changes are required to make crofting fit for the 21st century.
Among the first questions is whether there should be a new Crofting Act and what form that should take. There are four potential options with one proposal being "clean sheet crofting". This would entail essentially starting all over again with completely new crofting legislation. I appreciate and understand the calls for this, but I suspect such an exercise would be impossible to get sufficient consensus on, that there are too many risks of making mistakes (we have been there before with crofting legislation) and that it would ultimately take too long. I also think there is a legitimate concern about throwing the baby out with the bath water.
This lawyer's view
The crofting system itself isn’t inherently wrong, however I am not denying the size of the task. My personal preference is for there to be a new Crofting Act which would rectify some of the very specific legislative problems in crofting law just now but also clarify and restate the current legislation so that it is clearer for crofters to use.
There are also a number of specific issues for crofting that the consultation is considering addressing as part of legislative reform. These issues include looking at absenteeism, misuse and neglect, and crofting common grazings (which have admittedly been underused).
Further assignation of croft tenancies and succession is being reviewed (in my view the law relating succession to crofts should be clarified and I personally think that executors should have rights to decroft in certain circumstances, which they currently do not). The role of the Crofting Commission themselves is also likely to be examined.
The consultation closeed at the end of November and the Scottish Government has indicated that the responses to the consultation and analysis will be published in February 2018.
You can find out more about the consultation, and the results when they are announced, here.