The “Shucksmith Report” – key points and issues
Few crofters and crofting estates throughout the Crofting Counties will have failed to be aware of the publication of Mark Shucksmith’s controversial Report on the future of crofting on 12th May 2008 (the Final Report of the Committee of Inquiry on Crofting).
The purpose of this briefing note is to highlight the main recommendations of the Report, some of which have received substantial publicity, others less so. The Scottish Government has yet to make a formal response to the findings of the Report. It must be emphasised that, at this stage, the Committee’s recommendations are only recommendations. It is quite possible that only some, or none, of the recommendations will be accepted by the Government and legislated upon.
The main recommendations include:
• Abolition of the Crofters Commission (3.12.2)
• Establishment of a Federation of Local Crofting Boards (3.11.3)
• Local Crofting Boards will exercise the functions, such as decrofting, that are currently carried out by the Crofters
Commission
• Separating the regulation and development of crofting (3.11.11)
• All croft houses should be tied to residency by a legal real burden (3.15.3)
• Powers for Crofting Boards to suspend the ‘right to buy’ under the Crofting Reform (Scotland) Act 1976 (3.15.5)
• Leases of croft land should be registrable in the Land Register of Scotland (3.15.9)
• The traditional rights of crofters as set out in the Crofters Act 1886 should be available only to those crofters who
are resident on or near their croft and using the land “beneficially” (3.14.1)
• Croft tenants and owner-occupiers should be treated alike (3.15.5)
• Anti-avoidance and retrospective (backdating) provisions in any new legislation to prevent the decrofting and sale
of existing croft land before new legislation is introduced (3.14.20)
Overall vision
The overall vision of the report is to put new life into existing crofting communities and to ensure that crofting can be sustained as a way of life in the 21st century. It also seeks to protect the cohesion of crofting communities. The aim is to “give crofting communities the capacity to adapt” to the challenges and opportunities such as the “growth of the Scottish economy and of Inverness and its environs, as well as further community buy-outs of crofting estates” (2.9). Whether this could realistically be achieved remains to be seen.
Local Crofting Boards
The Report advocates the abolition of the Crofters Commission and the setting up of 7-10 Local Crofting Boards in order to achieve “more localised and accountable regulation”. The Report envisages a complex regulatory framework which combines local rules made by Local Boards (in response to local circumstances) and a central body headed by a Chief Executive advising on “the parameters of national regulations”. Essentially, the Local Boards would exercise the present functions of the Crofters Commission within its locality. The Boards would be given a reasonable amount of discretion and would be expected over time to develop their own policies and rules (3.11.1 – 3.11.13).
Crofting Development
The Report recommends a separation of the regulatory and developmental responsibilities of the Crofters Commission through a new Crofting and Community Development body. Its role would be “crofting development and the promotion of the economies of the remoter areas of the Highlands and Islands”. It is envisaged that the body would form part of HIE (3.11.11).
Residency Requirement
Of critical importance to crofters would be any condition in a Decrofting Direction that requires residency on the croft. Whilst the Report states that “no crofter would have their home taken from them” (3.14.5), it is likely under the proposals that the value of the croft house on the open market will be reduced. It is proposed that croft houses will be tied to occupancy through a “real burden”, which will run with the land in perpetuity (3.14.3), so reducing the potential for croft houses to become holiday homes.
Grant Schemes
The Report recommends an overhaul of the existing Croft House Grant Scheme (CHGS) and its replacement by the Croft House Grant and Loan Scheme (CHGLS) (3.8.2). Unlike the existing Scheme, the proposed Scheme would not be available if the land had been previously decrofted, the Rural Home Ownership Grant (RHOG) would be available in respect of decrofted land. Such Grants should be promoted by local housing enablers and Registered Social Landlords and “community trusts” (3.8.4). The overall objective seems to be to provide low cost housing in areas where there is a perceived need.
Assignation of croft tenancies
The Report proposes the following measures to limit the potential value of croft tenancies on the open market:
• for non-family assignations, assignations would be permitted, subject to the assignee satisfying a residency requirement and “using the land actively or beneficially”
• for non-family assignations of bareland crofts, such assignations will be subject to rules set by the Local Crofting Board at a value set by the District Valuer (who will determine the value subject to the residency and use conditions)
• for family assignations, these will be permitted provided they satisfy the size/ number criteria set out the Local Crofting board (3.14.4).
New role for the Registers of Scotland
The Report recommends that the responsibility for registering crofting interests should be borne by the Keeper of the Registers of Scotland, who is responsible for Scotland’s two property registers, the Register of Sasines and the Land Register. The Keeper will also have a responsibility to maintain a Register of Crofts (currently maintained by the Crofters Commission), which should be founded on “an appropriate map-base” (3.14.13 – 3.14.17).
Registrability of crofting leases
It is proposed by the Report that an amendment is made to the Registration of Leases (Scotland) Act 1857 to enable crofting leases to be registered, in order that they can be offered as security to a lender as a Standard Security. Whether lenders would accept a crofting lease as adequate security is a matter of speculation (3.14.18).
New crofts?
It is suggested that landholdings similar to crofts could, “if their owners or tenants so wish”, become subject to crofting regulation (3.14.19). Such holdings would presumably include fishermen’s holdings and, for instance, the Glendale holdings.
Croft Boundaries
It is suggested that the boundaries of crofts which have been accepted for 20 years or more should no longer be challengeable in the Scottish Land Court.
Anti-avoidance provisions
It is suggested that the Government should consider backdating the introduction of a real burden on assignations and purchases made after 12th May 2008 (3.15.11). The concern is that there will be a rush to sell tenanted and owner-occupied crofts on the open market. It is not clear whether land decrofted after 12th May 2008 but before the introduction of new legislation – such as the site of the croft dwelling-house – could be sold on the open market without the imposition of a such a real burden.
What now?
Many existing clients and interested members of the public have asked us for our views on the Report. Once the response of the Scottish Government is more clearly known, it will become easier to provide specific advice to individual crofters, crofting estates and developers (for instance, of housing or renewable energy). It is not yet clear whether it will be to an individual crofter’s advantage to purchase his croft land and croft house now, and apply to have his croft house site and any potential development sites decrofted. It is, however, clear that if the main recommendations of the report are given legislative effect, there will be more and not less regulation of crofting and less freedom for the individual crofter. The Report states that there is a “need for better regulation of both neglect and absenteeism”, but openly admits that “no single way to address this issue emerged” (3.13.4). In particular, greater regulation of absenteeism is envisaged.
Restricting the Right to Buy and to decroft the site of the croft dwelling-house
The report recommends that the Local Crofting boards should have the power to suspend the crofter’s right to buy his or her croft under the Crofting Reform (Scotland) Act 1976. It is proposed that “no crofter will enjoy an absolute right to decroft their house and garden” (3.14.6).
This client briefing will be updated as and when the Scottish Government makes a formal response to the Shucksmith Report.
This client briefing does not and is not intended to constitute legal advice. Should you have particular issues that you wish to discuss with regard to crofting, we can provide independent legal advice on your particular circumstances. Please contact:
david.findlay@macandmac.co.uk
eilidh.ross@macandmac.co.uk
Few crofters and crofting estates throughout the Crofting Counties will have failed to be aware of the publication of Mark Shucksmith’s controversial Report on the future of crofting on 12th May 2008 (the Final Report of the Committee of Inquiry on Crofting).
The purpose of this briefing note is to highlight the main recommendations of the Report, some of which have received substantial publicity, others less so. The Scottish Government has yet to make a formal response to the findings of the Report. It must be emphasised that, at this stage, the Committee’s recommendations are only recommendations. It is quite possible that only some, or none, of the recommendations will be accepted by the Government and legislated upon.
The main recommendations include:
• Abolition of the Crofters Commission (3.12.2)
• Establishment of a Federation of Local Crofting Boards (3.11.3)
• Local Crofting Boards will exercise the functions, such as decrofting, that are currently carried out by the Crofters
Commission
• Separating the regulation and development of crofting (3.11.11)
• All croft houses should be tied to residency by a legal real burden (3.15.3)
• Powers for Crofting Boards to suspend the ‘right to buy’ under the Crofting Reform (Scotland) Act 1976 (3.15.5)
• Leases of croft land should be registrable in the Land Register of Scotland (3.15.9)
• The traditional rights of crofters as set out in the Crofters Act 1886 should be available only to those crofters who
are resident on or near their croft and using the land “beneficially” (3.14.1)
• Croft tenants and owner-occupiers should be treated alike (3.15.5)
• Anti-avoidance and retrospective (backdating) provisions in any new legislation to prevent the decrofting and sale
of existing croft land before new legislation is introduced (3.14.20)
Overall vision
The overall vision of the report is to put new life into existing crofting communities and to ensure that crofting can be sustained as a way of life in the 21st century. It also seeks to protect the cohesion of crofting communities. The aim is to “give crofting communities the capacity to adapt” to the challenges and opportunities such as the “growth of the Scottish economy and of Inverness and its environs, as well as further community buy-outs of crofting estates” (2.9). Whether this could realistically be achieved remains to be seen.
Local Crofting Boards
The Report advocates the abolition of the Crofters Commission and the setting up of 7-10 Local Crofting Boards in order to achieve “more localised and accountable regulation”. The Report envisages a complex regulatory framework which combines local rules made by Local Boards (in response to local circumstances) and a central body headed by a Chief Executive advising on “the parameters of national regulations”. Essentially, the Local Boards would exercise the present functions of the Crofters Commission within its locality. The Boards would be given a reasonable amount of discretion and would be expected over time to develop their own policies and rules (3.11.1 – 3.11.13).
Crofting Development
The Report recommends a separation of the regulatory and developmental responsibilities of the Crofters Commission through a new Crofting and Community Development body. Its role would be “crofting development and the promotion of the economies of the remoter areas of the Highlands and Islands”. It is envisaged that the body would form part of HIE (3.11.11).
Residency Requirement
Of critical importance to crofters would be any condition in a Decrofting Direction that requires residency on the croft. Whilst the Report states that “no crofter would have their home taken from them” (3.14.5), it is likely under the proposals that the value of the croft house on the open market will be reduced. It is proposed that croft houses will be tied to occupancy through a “real burden”, which will run with the land in perpetuity (3.14.3), so reducing the potential for croft houses to become holiday homes.
Grant Schemes
The Report recommends an overhaul of the existing Croft House Grant Scheme (CHGS) and its replacement by the Croft House Grant and Loan Scheme (CHGLS) (3.8.2). Unlike the existing Scheme, the proposed Scheme would not be available if the land had been previously decrofted, the Rural Home Ownership Grant (RHOG) would be available in respect of decrofted land. Such Grants should be promoted by local housing enablers and Registered Social Landlords and “community trusts” (3.8.4). The overall objective seems to be to provide low cost housing in areas where there is a perceived need.
Assignation of croft tenancies
The Report proposes the following measures to limit the potential value of croft tenancies on the open market:
• for non-family assignations, assignations would be permitted, subject to the assignee satisfying a residency requirement and “using the land actively or beneficially”
• for non-family assignations of bareland crofts, such assignations will be subject to rules set by the Local Crofting Board at a value set by the District Valuer (who will determine the value subject to the residency and use conditions)
• for family assignations, these will be permitted provided they satisfy the size/ number criteria set out the Local Crofting board (3.14.4).
New role for the Registers of Scotland
The Report recommends that the responsibility for registering crofting interests should be borne by the Keeper of the Registers of Scotland, who is responsible for Scotland’s two property registers, the Register of Sasines and the Land Register. The Keeper will also have a responsibility to maintain a Register of Crofts (currently maintained by the Crofters Commission), which should be founded on “an appropriate map-base” (3.14.13 – 3.14.17).
Registrability of crofting leases
It is proposed by the Report that an amendment is made to the Registration of Leases (Scotland) Act 1857 to enable crofting leases to be registered, in order that they can be offered as security to a lender as a Standard Security. Whether lenders would accept a crofting lease as adequate security is a matter of speculation (3.14.18).
New crofts?
It is suggested that landholdings similar to crofts could, “if their owners or tenants so wish”, become subject to crofting regulation (3.14.19). Such holdings would presumably include fishermen’s holdings and, for instance, the Glendale holdings.
Croft Boundaries
It is suggested that the boundaries of crofts which have been accepted for 20 years or more should no longer be challengeable in the Scottish Land Court.
Anti-avoidance provisions
It is suggested that the Government should consider backdating the introduction of a real burden on assignations and purchases made after 12th May 2008 (3.15.11). The concern is that there will be a rush to sell tenanted and owner-occupied crofts on the open market. It is not clear whether land decrofted after 12th May 2008 but before the introduction of new legislation – such as the site of the croft dwelling-house – could be sold on the open market without the imposition of a such a real burden.
What now?
Many existing clients and interested members of the public have asked us for our views on the Report. Once the response of the Scottish Government is more clearly known, it will become easier to provide specific advice to individual crofters, crofting estates and developers (for instance, of housing or renewable energy). It is not yet clear whether it will be to an individual crofter’s advantage to purchase his croft land and croft house now, and apply to have his croft house site and any potential development sites decrofted. It is, however, clear that if the main recommendations of the report are given legislative effect, there will be more and not less regulation of crofting and less freedom for the individual crofter. The Report states that there is a “need for better regulation of both neglect and absenteeism”, but openly admits that “no single way to address this issue emerged” (3.13.4). In particular, greater regulation of absenteeism is envisaged.
Restricting the Right to Buy and to decroft the site of the croft dwelling-house
The report recommends that the Local Crofting boards should have the power to suspend the crofter’s right to buy his or her croft under the Crofting Reform (Scotland) Act 1976. It is proposed that “no crofter will enjoy an absolute right to decroft their house and garden” (3.14.6).
This client briefing will be updated as and when the Scottish Government makes a formal response to the Shucksmith Report.
This client briefing does not and is not intended to constitute legal advice. Should you have particular issues that you wish to discuss with regard to crofting, we can provide independent legal advice on your particular circumstances. Please contact:
david.findlay@macandmac.co.uk
eilidh.ross@macandmac.co.uk
